holding that “no other adjournment than the final adjournment of the Legislature itself at the end of the session ... prevents] the return of a bill by the Executive with his objections to its passage”
How later courts described this case
- holding that “no other adjournment than the final adjournment of the Legislature itself at the end of the session ... prevents] the return of a bill by the Executive with his objections to its passage”
Written by the judges who cited it.
The opinion
Crockett, J.. concurring:
I concur in the judgment and in the process of reasoning by which Mr. Justice Wallace has reached the conclusion, that the bill in question was not returned to the Senate, in the sense of the Constitution, within the ten days allowed for the purpose by that instrument, and that it has, consequently, become a law without the signature of the Governor. From this conclusion, it necessarily results that it is *214 the duty of the Governor to deposit the bill in the office of the Secretary of State, and to cause it to be authenticated, as required by law. But it is due to the respondent to state, that I do not understand him to maintain, as might possibly be inferred from some portions of the opinion, that he has the constitutional right, or any authority whatsoever, to set aside a statute duly passed, and which has become a law under the forms of the Constitution; or by retaining it in his possession, after it has become a valid, constitutional enactment, to defeat its operation as such. On the contrary,, he claims that the bill in question failed to become a law, and for that reason ought not to be authenticated as such; and this is the principal question submitted for our decision, under the agreed statement of facts. It appears to me to be scarcely just to the respondent, to impute to him, even by inference, a design “to dispense with a statute, either in a particular instance or altogether, by withholding it from the depository of the law in the proper office;” and certainly there is nothing in this record, or in his official conduct, so far as we can take judicial cognizance of it, to justify the inference that he arrogates to himself the power claimed by the earlier sovereigns of Great Britain, to alter and amend bills at pleasure, “before according the royal approval.” If any such inferences are deducible from the opinion of Mr. Justice Wallace, ,1 do not concur in them.
But I assent to the conclusion at which he has arrived, that in respect to merely ministerial duties, involving the pxercise of no discretion, all the officers of the Government, from the highest to the lowest, are amenable in proper cases to the writ of mandate. Any other rule than this would be subversive of private rights, and incompatible with a fundamental principle of republican government, to wit: that all public officers can be compelled by law to perform merely ministerial acts and duties involving the exercise of no discretion. This Court, I trust, will always carefully abstain from any attempt to infringe upon the constitutional rights or functions of the Executive or Legislative Departments, ■ and if I entertained a reasonable doubt whether ór not the retention of this bill in the possession of the Governor was - *215 a matter which, in the slightest degree, rested in the exercise of his discretion as a co-ordinate branch of the government, I should feel it to be my duty to deny the writ, rather than to issue it in a doubtful case, involving the constitutional rights of the chief executive officer of the State. But I concur fully in the reasoning of Hr. Justice Wallace, to the effect that the bill having become a law, the Governor has no discretion in the premises, and it is incumbent on him, as a ministerial duty resulting from his office, to deposit it with the Secretary of State, that it may be properly authenticated. It was suggested on the argument, that it could not have been within the contemplation of the Constitution and laws that the Governor should be amenable to the writ of mandate, inasmuch as the Court ivould be powerless to enforce its process in case it was disobeyed. But it is not to be presumed that the chief executive officer of the State would resist the authority of its highest judicial tribunal. It is true, the history of the Federal Government, within the last ten years, furnishes a humiliating instance in which the authority of the Supreme Court of the United States to enforce obedience to a writ of habeas corpus, was defied by the Executive Department of the Government. But whatever palliation there may be of this open defiance of the authority of the Court, is to be found in the existence of a fierce civil war, which threatened the stability of the Government, and, for a time at least, it is feared, relaxed the reverence of the people for constitutional obligation. It is to be hoped, however, that this will be the last, as it was the first instance, in which the authority of the Court, acting within its admitted jurisdiction, has been openly set at defiance by a co-ordinate branch of the Government. In clothing this Court with the power to enforce its authority, by process for contempt and by other methods, the Legislature, doubtless, contemplated that the power would be discreetly exercised in furtherance of the public good; and though, I trust, if there should occur in any case a contumacious defiance of its authority, the Court would enforce its process by whatever lawful and proper methods it could employ; nevertheless, I apprehend there is no reason to fear that in this *216 or any,other case, an executive officer will refuse to obey the process of this Court, in a cause clearly within its jurisdiction. If, in any case, such an emergency should arise, we would deal with it as our sense of duty might dictate under all the circumstances. But no argument against the existence of the power to issue the writ, can be founded on the supposed difficulty of enforcing it in a given case. It will be time enough to deal with that question when it shall arise.