“The test of legislative power is constitutional restriction; what the people have not said in their organic law their representatives shall not do, they may do.”
How later courts described this case
- “The test of legislative power is constitutional restriction; what the people have not said in their organic law their representatives shall not do, they may do.”
Written by the judges who cited it.
The opinion
Brown, J.
(concurring with Mr. Justice Ellis). All the members of, the Court agree that all bills must be passed by the Legislature during the constitutional session in order to have any validity. No bill adopted after the constitutional session has expired can have any validity. The stream cannot rise higher than its source. The Legislature cannot continue in lawful session beyond the period allotted to it by the Constitution which created it. That is perfectly plain.
But the question here presented is whether a bill passed
before
the constitutional session has expired, can,
after
such expiration, be lawfully signed by the prescribed officers of the two Houses and presented to the Governor.
As pointed out in both the foregoing opinions, Section 17 of Article III provides that: “All bills or joint resolutions so passed shall be signed by the presiding officer of the respective Houses and by the Secretary of the Senate and the Clerk of the House of Representatives.”
Section 28 of the same article of the Constitution reads as follows:
“Section 28. Every bill that may have passed the Legislature shall, before becoming a law, be presented to the Governor; if he approves it he shall sign it, but if not he
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shall return it with his objections to the House in which it originated, which House shall cause such objections to be entered upon its journal, and proceed to reconsider it; if, after such reconsideration, it shall pass both Houses by a two-thirds vote of members present, which vote shall be entered on the journal of each House, it shall become a law. If any bill shall not be returned' within five days after it shall have been presented to the Governor (Sunday excepted) the same shall be a law, in like manner as if he had signed it. If the Legislature, by its final adjournment prevent such action, such bill shall be a law, unless the Governor, within ten days after the adjournment, shall file such bill, with his objections thereto, in the office of the Secretary of State, who shall lay the same before the Legislature at its next session, and if the same shall receive two-thirds of the votes present it shall become a law.”
I agree with Mr. Justice Ellis that the intent of this section is that all bills “that have passed the Legislature” must be presented to the Governor while the Legislature is still in session, which means in lawful and constitutional session. And, of course, all such bills necessarily must be signed by the officers of the respective Houses, as required by Section 17, before they can be presented to the Governor. It follows, therefore, that all bills that have passed the Legislature must be signed by the officers of the respective Houses and presented to the Governor while the Legislature is still in constitutional session.
If there can be such a thing as a
“de facto”
or “hold-over” session of the Legislature for any purpose, after the sixty-day period prescribed by the Constitution has expired, which I do not concede, certainly none such was contemplated by the Constitution, nor could that kind of session carry out the mandates of Sections 17 and 28 of Article III herein-
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above referred to. In my opinion, the Constitution nowhere contemplates any session of the Legislature other than a constitutionally authorized session.