distinguishing a discretionary act from a ministerial act
How later courts described this case
- distinguishing a discretionary act from a ministerial act
- “The Constitution fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move”
Written by the judges who cited it.
The opinion
Paul W. Brown, J.,
concurring in part.
The majority concludes that the bills in question, presented to the Secretary of State after being signed by Governor Gilligan, were “laws,” and that in rejecting their proffered filing, the Secretary of State was determining “judicial questions dealing with the constitutionality” of such laws.
Although I agree that the Secretary of State may not refuse to file a law where the basis of his refusal rests upon doubts concerning its constitutionality, I disagree that he must accept for filing, without further proof in a court of competent jurisdiction if he chooses to require it, a purported law upon which there does not appear the signature of the Lieutenant Governor as required by the Constitution. We note that the action before us is not one of mandamus *341 against the Secretary of State. Because it is not, the majority’s conclusion that the six laws are invalid renders paragraphs one and two of the syllabus advisory.
Nor do I perceive any duties omitted or options unexercised by Governor Gilligan’s successor under the facts of this case. The purported legislation, having been signed by Governor Gilligan and forwarded to the Secretary of State, was not subject to veto by the successor Governor, nor had he any statutory duty or other obligation to pass upon its validity, or to transmit it to any person. The majority discusses as “unmistakably clear” the options of one acting as Governor with respect to bills “sent to him for signature.” Clearly, these options do not apply to a successor Governor with respect to bills signed and transmitted by his predecessor to the Secretary of State. Nor does return of the questionable legislation to the office of the Governor, after its rejection by the Secretary of State, place any duty upon the successor Governor, other than to safeguard it and to release it upon demand by an appropriate authority.
Since this cause concerns neither a mandamus action against Governor Rhodes, nor any refusal by him to act by reason of an injunction, I concur only in so much of the majority opinion as declares each of these laws constitutionally invalid.
Corrigan, J., concurs in the foregoing concurring opinion.