People v. Bowen — 21 N.Y. 517

Majority

p. 555

* People v. Bowen and others.

Headnote

Constitutional Law.—Enactment of Statutes.

The governor has power to approve a bill, after the adjournment of the legislature, which was presented to him within ten days previously thereto.

Whether a special act of incorporation be necessary in a particular case, notwithstanding the existence of a general law, rests wholly in the legislative discretion.^[1]

People v. Bowen, 30 Barb. 34 . affirmed.

Appeal from the general term of the Supreme Court, in the first district, where a judgment-in favor of the defendants, on a demurrer to the complaint, had been reversed. (Reported below, 30 Barb. 24 .)

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This was an action in the nature of a quo warranta, against the defendants, for assuming to be, and acting- as, a corporation, without authority of law.

The complaint alleged, that the defendants had associated themselves together, and claimed to be a corporation, and were unlawfully acting as a corporation, under an alleged act of the legislature, entitled “ an act to incorporate the Metropolitan Gas-light Company of the city of New York,” passed the 17tli day of April 1855; and averred, that although the bill passed the assembly on the 5th April 1855, and the senate, on the 13th April, yet, that it was not approved by the governor, until the 17tli April, after the adjournment of the legislature, and never became a law; and further insisted, that, if duly approved bjr the governor, it was unconstitutional and void. The defendants demurred to the complaint. It was insisted on the argument, that the act was unconstitutional, because the subject-matter was provided for by a general law.

*The coui’t below, at special term, sustained 1 L ' the demurrer, and gave judgment for the defendants, which having-been reversed at-general term, this appeal was taken.

Slosson and Johnson, for the appellants.

jEvarts, for the respondents.

The provision of the constitution under consideration seems to me naturally to refer to two classes of cases, namely, to bills in respect to which the two houses of the legislature and the governor shall agree in sentiment; and, secondly, to those in which they shall differ. In respect to the former class, the provision is extremely brief. After declaring that “ every bill which shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor,” it adds, “ if he approves, he

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shall sign it; ” and this is all which is said respecting bills where there shall be a concurrence on the part of the governor with the houses. The remainder of the section is devoted exclusively to the consideration of cases in which the governor shall not approve of bills which have been presented to him on the part of the houses; and the subject of those, in respect to which there has been no difference of opinion, is not again adverted to.

Specific directions are given for the purpose of bringing about a reconsideration, by the senate and assembly, of bills to which the governor shall have objected; and a new scrutiny is required to be had, under which such bills are to become laws, notwithstanding the governor’s objections, provided two-thirds of all the members present in each house shall so determine. The case was then to be provided for, where the governor should neglect or. refuse to act upon a bill; such neglect is not to be permitted to thwart the will of the legislature; and the remainder of the section is occupied with a provision to meet that case; it is as follows: “ If any bill shall not be returned by the governor, in ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in *like manner as if he had signed it, unless the legislature, by their adjournment, prevent its return, in which case it shall not be a law.” (Art. IV., § 9.) It is plain, that this relates exclusively to bills which the governor has neglected to approve and sign. It is such bills, and not those which he has approved and signed, which are not to become laws on account of a premature adjournment of the legislature. The provision does not qualify the mandate contained in the earlier part of the section, by which it is enjoined upon the governor, that, if he approves of a bill, he shall sign it. I am, therefore, of opinion, that there is nothing in the language of the constitution forbidding the approving and signing of a bill by the governor, after the

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session of the legislature shall have terminated by an adjournment. If he cannot legally do so, it is on account of some implication arising out of the nature of the subject, or of the act to be performed, or the general arranger ments of the constitution.

The leading idea of the constitution is, that a concurrence of the legislative and executive branches shall always be sufficient to enact a'statute, and that, in certain cases, the two houses alone shall be.sufficient; but this is only where the objection of the executive branch shall have been considered and overruled, by an extraordinary majority in the houses, and again, where the governor neglects his duty by withholding his opinion.

It is argued, that, upon the construction which I have suggested, no time whatever is fixed, within which bills are, in such cases, to be signed, and that, if it can be done after the adjournment, it may be done at any indefinite period thereafter; and that the in convenience would ai’ise, that it might remain a long time uncertain, whether a measure which has received the assent of both branches of the legislature should eventually be a °law- or not. This consequence will certainly follow, unless there is an implication arising out of the fixing of a period of ten days for the consideration of bills presented to the governor while the legislature remain in actual session. It is plain, that the authors of the constitution considered that period "^sufficiently long for the performance q£ £^a£ duty; and, I think, he would not be justified in acting upon a bill, after his ten days had elapsed,, whether the session continued or not. But, if this were otherwise, it would not afford a reason for adding to the constitution, by a judicial determination, a qualification of the power of the governor to approve bills, which is not contained in the instrument. The constitution does, not often prescribe detailed provisions for the regulation of the departments of the government; a general power is usually conferred, and it is then left to the legislature

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to provide by law as to the time and manner of its performance.

But- if we concede that the limitation of ten days does not apply,, and that a limitation cannot be fixed by law. I am of opinion, that the concession would not authorize a determination against the existence of the right to approve bills, after the adjournment. It would plainly be the duty of the governor, to act upon such bills as had been left in his hands on the adjournment, at the earliest practicable time thereafter. The nature of the duty, and the inconveniences of delay, would sufficiently inculcate the obligation of diligence in that respect. The governor, it is true, may, by neglecting his duty, betray the trust committed to him; and so, in a variety of "ways, he may, by official dereliction, endanger the very existence of the government.

It has been urged, by the counsel for the people, that the power vested in the governor is not to be looked upon in the light of a participation on his part in the law-making power, but- rather as an authority of an executive character, to require, under certain circumstances, a reconsideration by the legislature, of measures already adopted by it, and a larger proportion of concurring voices to be given, in order to confirm what has been - done. This being taken to be the nature of the power, it is further urged, that it cannot be applied to bills left in the governor’s hands at the period of adjournment, although the ten days alIowred for consideration had not expired; because, as it would then be impossible for him to require a reconsideration, and as that is the only function, according to the argument, confided to him, it having become incapable of performance introspect to such bills, he has no duty to perform concerning them. In confirmation of this view, the 1st section of the - 3d article is referred to, which purports to vest the legislative power of the state in the senate and assembly; whence,

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it is argued, that no portion of such power can reside elsewhere.

The question as to the nature of the governor’s ágency raises, I think, rather a dispute about terms, than one concerning the substance of things. Whatever the authority, touching the enactment of laws, with which the governor is clothed, shall be called, it is of the same general nature with that which is exercised by the members of the two houses. He is to consider as to the constitutionality, justice and public expediency of such legislative measures as shall have been agreed upon by the two houses, by the ordinary majorities, and be presented to him; and he is to accord or withhold his approbation, according to the result of his deliberation. This is plainly the function of a legislator. The sovereign of England, who is charged with the same duty in respect to acts of Parliament, is considered to be a constituent part of the supreme legislative power. (1 Bl. Com. 261.) It is true, that his determination to disapprove a bill deprives it of any effect; while one disallowed by the governor may yet be established by an extraordinary concurrence of votes in the houses. Thus, though the action of the executive is less potential here than in England, the quality of the act, namely, deliberating and determining upon the propriety of laws proposed to be enacted, is precisely the same.

Besides making his determination, the governor is required, in case it is unfavorable to the law, to submit his objections to the legislature, which is to examine them, and again pass upon them, in the light of the discussion which they have thus undergone. To my mind, it is clear, that this involves a participation, on the part of the governor, with the two houses of the legislature, in the enactment of laws. It would not be correct language to say, that he forms a branch of the legislature, for the constitution has limited that designation to the senate and assembly; but it would be equally incorrect to affirm,

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that the sanction which he is required to give to or "^withhold from bills, before they can become operative, does not render him a participator in the function of making laws. The 47th number of “ The Federalist,” written by Mr. Madison, treats of the separation of the great departments of the government; and it is there shown, that the concurrence of the executive magistrate with the proper legislature in the enactment of laws, as arranged in the constitution of the United States, is not, in spirit, a violation of the principle, so strongly insisted upon by Montesquieu and other writers upon constitutional government, that constitutional liberty cannot exist where the legislative and executive powers are united in the same person. Mr. Madison considers the qualified veto accorded to the president as effecting a partial distribution of the legislative authority between him and the congress; but argues that it is not objectionable, because neither authority can, in any case, exercise the whole power of the other. He shows, also, that in certain states, in the constitutions of which the .principle of Montesquieu is laid down, in terms, with great positiveness, there is an intermingling of the legislative and executive departments in the actual arrangement of the details of government. Our own constitution furnishes another example; for though it is declared that the whole legislative authority shall be vested in the senate and assembly, still no law can be enacted, which has not been submitted to the judgment of the governor. His agency cannot, therefore, he considered as merely a power to refer back bills for further consideration by the legislature; his approval is regarded as generally essential to the enactment of laws, though his disapproval is not necessarily fatal to them, but may be overcome, where the legislature, upon a consideration of his objections, shall repass them by an extraordinary majority.

I am, therefore, of opinion, that it is not a just construction of the power intrusted to. the governor, to consider it

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as merely an authority to require a further consideration of bills which he shall disapprove. In one respect, the effect of the governor’s determination is different, when the legislature is in session, and when it is not. In the case> if he approves, the ^concurrence of the whole law-making power is secured, precisely as though the legislature was in session; the bill has received the concurrence of all the functionaries which the constitution requires should unite in enacting a perfect law. He cannot state objections, for there is no public body in existence to whom they can be submitted; if he neglects to act, which he will, of course, do, if the bill is disapproved of by him, it falls to the ground by the express provisions of the constitution; for the grounds of his disapproval cannot be passed upon by the legislature. But if the proposed law meets with his approval,-there is no reason why the public will, expressed by all the official bodies and persons with whom the constitution has intrusted the province of making laws, should fail of effect.

It has been argued, that, as the governor cannot, in the. recess of the legislature, compel the reconsideration of bills to which he is unwilling to yield his consent, he might be induced to approve those which are, in some respects, objectionable, but which contain other provisions important to the public welfare. This argument is not without force; but I think it should be assumed, that he would never interpose a veto to a bill which he did not conscientiously believe ought not to become a law, and that he would never approve one, to which, such objections, in his opinion, existed. Should a bill of the character suggested be left in his hands at the adjournment, the remedy for the public inconvenience, which might be occasioned by the failure 'to enact the sound parts, would be found in the power to again call the legislature together, which is vested in him for this and the like occasions.

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Some other reasons, of less cogency than those which have been mentioned, were urged on the argument. They have received the attentive consideration of the judges; 'but we are of opinion, upon the whole case, that the act under consideration is not void, on account of its having received the executive approval after the legislature had adjourned. The other objections to the act. Avere, we think, properly disposed of by the supreme court. The judgment appealed from should be reversed.

The principal and most interesting question presented in this case is, whether the governor of this state has the constitutional poAver to approve and sign bills, after the adjournment of the legislature. It is contended by the counsel for the respondents, that the whole legislative power of the state being vested in a senate and in an assembly, upon their adjournment, no power existed in any other department of the government to make the bill in question a law. ■ He endeavors to maintain this position, upon the ground, that such a power would be an absolute power of determining Avhether a bill should become a law; which would be an exercise of legislative functions, not granted to the governor by the constitution. It is confidently asserted by the counsel of the respondent, that the governor possesses no legislative functions, and he, consequently, maintains that, as the power of signing bills after the adjournment of the senate and assembly, would amount to an exercise of legislation, the exercise of such a power is unconstitutional and void.

The 9fch section of article 4th of the Constitútion of this state, prescribes a general outline of the method by which laAvs shall be enacted. It dictates the action of all the agencies Avhich have anything to do with legislation, in the general sense of that word. The bill must be initiated in one of the Iavo houses, and when it passes both, in the first instance, it is no more a law than when

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it passed only one. It is still necessary that it should be presented to the governor for his approval or disapproval. By his approval, he gives it life; then, only, it becomes a law; by his disapproval, it remains inert and inoperative; and, if the two houses should deem it of sufficient importance, nothwithstanding the non-concurrence of, the governor, to make it a law, a new and somewhat different course of action becomes necessary on their part. The house, to which the governor has returned the bill, must record his objections and proceed to reconsider it; if after reconsideration, two-thirds of the members present shall agree to pass the bill, it must be sent, together with the objections, to the other house, by which it must likewise be reconsidered; and, if approved *by two-thirds of all the members present, it becomes a law, nothwithstanding the objections of the governor.

Now, to say that this right of the two houses to pass a bill, notwithstanding the objections of the governor, divests him, as a branch of the government, of any legislative functions, or that he does not participate,in the legislative power, is the affirmation of a mere verbal distinction ; it is a distinction without a difference. That he has an agency in making, though not in framing laws ; that his action in enacting them is in many cases necessary, and, without that action, numerous bills practically fail to become laws, cannot be disputed; and it is of very little consequence, indeed, whether we call his action a participation in the legislative power, or an agency in enacting laws. That he has some instrumentality, and a very important instrumentality, in this work, is evident; and all we can say, is, that while he cannot make laws, without the concurrence of the two houses, they can, under certain circumstances, make laws without his concurrence.

His power, indeed, in degree, is not as great as that of the Sovereign of the United Kingdom of Great Britain and Ireland; it is not an absolute veto, but a right of dis

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approval, which, at all events, arrests, and, in many instances, frustrates the action of the two houses.

It is conceded, by all writers on English constitutional law, that the sovereign partakes of the legislative power; but his legislative function is not, any more than that of the governor of this state, of the deliberative kind. As Wooddeson says, “It consists not in devising expedients, in altering or amending, or in conditional assent or dissent.” It consists merely in the power of rejecting, and not in resolving.

For nearly two centuries, undoubtedly, after the origination of Parliaments in England, the commons used the style of very humble petitioners, their petitions frequently beginning with “ your poor commons beg and pray,” and concluding with, “ for God’s sake and as an act of charity.” It was, at length, however, discovered, that this gave, in fact, the whole power of legislation -to the king: he modified and altered bills: and "out of • , ’ the petitions and answers, new statutes were extracted and framed, without the authority of the Lords or Commons. To remedy this evil, about the latter end oí the reign of Henry VI., and the beginning of the following reign, bills were reduced, in the first instance, into the complete form of acts of parliament, in which they have ever since been framed, and thus come to the sovereign for assent or rejection. She has now no greater power in framing, altering, or resolving, than the president of the United States, or the governor of this state. It is simply the power of rejection which the British sovereign possesses, although to a greater extent than the president or the governor: the difference, I repeat, being plainly in degree and not in kind.

But, it is urged, that the 1st section of article 3d of our state constitution declares, that the legislative power shall be vested in a senate and an assembly. In answer to this, we say, that, notwithstanding this declaration, section -9 of article 4 vests a power in the governor which

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we have endeavored to prove to be a participation, measurably, in the legislative power; and in- construing the instrument, of course, the whole must be taken together. The action, therefore, of the governor, in the case before us, is relieved from the difficulty, if any really existed, suggested by"the counsel of the respondents. We must then return to the section under consideration, and determine, from its general import or express terms, whether that action is in accordance with the constitution.

How is the approval or disapproval of the governor to be expressed or ascertained? The former is ascertained by his signature, or by not returning the bill to the legislature within ten days (Sundays excepted); his disapproval is ascertained, except in the contingency, to which we shall presently refer, by his returning the bill, within those ten days, and stating his objections. This power of disapproval is a conservative, and, therefore, a most important prerogative for the governor. Whoever has reflected, by the light of history or of current events, upon the usurpations, corruption and recklessness of legislative *^oc^es’ at once recognise the importance of preserving it in its complete integrity. The numerous members of whom those bodies are composed, seldom feel the deep sense of responsibility by which the executive and judicial departments are generally influenced. Where duty is shared among numbers, it is seldom discharged with that solicitude which is felt when it is confined to one man, or to a few men. The consciousness of responsibility seems to be commensurate with the apportionment of duty. In proof of this, we have only to consider the conduct of nearly all legislative bodies, and particularly two examples, calamitously prominent in history—the Long Parliament of Great Britain, and the Legislative Assembly and National Convention of revolutionary Prance, which absorbed, in a brief period, all the powers of government, and became the most odious and cruel instruments of tyranny and corruption.

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Without a veto, absolute or qualified, this tendency would be unchecked; and, when conferred in the manner provided by our constitution, it could, were it not carefully guarded, be practically annulled or defeated by the intentional or unintentional action of the legislature. One most obvious method would be, by its adjournment within ten days after the bill is presented to the governor. The constitution provides that he shall have ten days to consider the bill, within which time he may disapprove of it; now, if the legislature adjourned within the ten days, he would be deprived of this opportunity, if there was not a further provision to meet this contingency. This is the purpose, and the sole purpose, of the latter part of the last sentence of the section. It provides, “ if any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the ‘same shall be a law, in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return; in which case, it shall not be a law.” What object other than the one which I have indicated, could this provision serve? There could be no adequate object in declaring a bill passed by the two houses, but signed after the adjournment, to be no law. "Both having concurred and adopted the bill, and the governor afterwards concurring and signing it, no purpose whatever, in such case, could be fulfilled by a prolongation of the sesssion; no purpose indicated or declared by the constitution, could be effected or aided by it. When the governor signs a bill, during the session, he does not—let it be borne in mind—return it to either house; the houses having nothing further to do with it. He frequently,. no doubt, as a matter of information, apprises them, during the session, that he has signed a list of bills; but he is under no necessity or obligation to do so; in no instance, when he signs a bill, does he return it to either house;

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he sends it to the secretary .of state, who files it in his office.

But if he should disapprove of a bill, and has not time to exress his disapproval, in consequence of the adjournment of the two houses, then, there is a. very manifest reason why it should be declared to be no law. That reason is, as I have intimated, the protection of this power of disapproval against the sinister designs of a bare majority, in the first instance, of the two houses. Without this provision, I repeat, the senate and assembly could •nullify this power. For, as in a previous part of the sentence, it is declared, that unless the governor shall return the bill within ten days, it shall be deemed a law, the legislature, by adjourning, would deprive him of this right, unless it was further provided to be no law, in case of their adjournment, if he should disapprove of it.

Again, not only does the1 manifest object of the provision require this interpretation, but the language employed admits of no other. Let us again read the last sentence of the section. It says—“ If any bill shall not be returned by the governor, within ten days (Sundays excepted) after it shall be presented to him, the same shall be a law, in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return.” Of course, the first part of the sentence means that the bill shall become a law, unless the governor returns it, with his disapproval and reasons, within ten days; so the latter part can contemplate nothing but *'*le re*urn’ “"his disapproval and reasons, which may be prevented by the adjournment. I have shown, it .is only when the governor disapproves, that the return of a bill to the legislature is contemplated ; when he signs a bill, he does not return it; he sends it, as I have said, to the secretary of state, who records it. The words, then, “ prevent its return,”-do not and cannot apply to his approving and signing a bill.

To recapitulate, the Constitution of the State of New

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York, in no part of it, expressly or impliedly, prohibits the governor from signing bills after the adjournment of the senate and assembly. The words in the concluding sentence in the 9th section of article 4th, which have been supposed to import . such a prohibition, apply solely to his disapproval of a bill in a certain event, and are designed for the protection of his right of rejection. The whole section prescribes the manner of approval and of disapproval. If he retains a bill, without signing it, for ten days during the session, his approval is to be presumed; but, if he retain it after the adjournment, without signing it, his disapproval is to be presumed, and it fails to become a law.

If the terms of the section admit of no other interpretation, of which I can entertain no doubt, it seems superfluous to consider the argument of precedent, or practice of the executive, under other constitutional governments. But, it may he well to observe, that with regard to the practice of the British government, no reason exists there, why the approval or disapproval of bills by the sovereign should be delayed after the prorogation of parliament. The sovereign exercises all her various powers and prerogatives in conformity with the advice of her council or cabinet, the members of which alone are individually responsible for the acts of the government. Every member of her cabinet is a member of either the House of Commons or the House of Lords. It is the duty and practice of each, vigilantly to watch the progress of every bill through the house to which he belongs. He generally takes an active part in considering and discussing it, and, before the end of the session, is fully prepared to advise the monarch to grant or to withhold the *royal assent. In fact, the latter prerogative has never been exercised since 1692, when William III. refused his assent to the bill for triennial parliaments, which, however, he granted two years afterwards.

With regard to the practice of the president of the

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United States and the governors of the several states, I believe, the former has always signed bills before tl e adjournment of congress, and many of the latter are in the habit of doing so, after the adjournment of the legislative bodies with whom they are respectively concerned. But as far as mere custom or practice can have any bearing on the question before us, I can only say, that the practice of the supreme executive of .every government, in a matter of this kind, must be guided by the express or implied language of the constitution under which he acts, or, in the absence of any such guidance, by necessity or expediency. The president of the United States is probably able, without serious inconvenience, to examine every bill before the adjournment of congress. At all events, if this question depended upon precedent, the practice which has obtained in our own state, may surely be adduced against that of any other government, and should be considered controlling. We have seen, that it has been the practice of many governors of this state, for a considerable number of years, to sign bills after the adjournment of the legislature.

With regard to the other constitutional objections presented on the demurrer, we entirely concur with the judge who decided the case at special term. The decision of the general term should be reversed, with costs.

Judgment reversed, and judgment at special term affirmed.

Comstock, C. J., dissented.

Cases cited

People v. Bowen 30 Barb. 24 N.Y. Sup. Ct. 1859-07-22 p. 555