Cowell v. Lumley. reserving a monthly rent (which the appellant expressly covenanted to pay at stated periods of time), and is otherwise in the customary form, except that it contains a special covenant in the following words: "And the said party of the first part doth hereby covenant and agree to, and with the party of the second part, that he will wel! and truly erect or cause to be erected upon said premises, within two months from the date of this lease, a building according to certain plans and specifications this day agreed to and signed by said parties. And the said party of the second part doth hereby covenant and agree for himself, his executors, administrators and assigns, that he and they shall and will well and truly keep the said building, so to be erected as aforesaid, in good repair during said term hereby granted. The appellant entered under the lease, and the respondent erected the building in accordance with the covenant. The stipulated rent was paid up to June, 1866, but the building having been about that time destroyed by fire, the appellant refused to pay any further rent, unless the respondent would rebuild, which the latter, upon his part, refused to do. It is unnecessary to consider whether this refusal should have been pleaded by the appellant, in bar, or by way of counterclaim; for, it either form, it could not have availed him. There is no express covenant, on the part of the respondent, to rebuild; he was bound to build but once, and then only to build structure of a specified character, and within a limited time. The erection of that building within the prescribed periods forever satis fied the covenant on his part. To ascertain that he did not expressly covenant to rebuild is, virtually, to decide the case, for the law does not imply such a covenant on his part, nor will his failure to rebuild, after the accidental destruction of the premises by fire, relieve the lessee from his express agreement to pay the rent. The authorities which support this proposition are too numerous to permit here a citation of them all. Some of them are: Beach v. Furish, 4 Cal. 339; Sheets v. Selden, 7 Wail. 423; White v. Molyneux, 2 Kelley, 126; Linn v. Ross, 10 Ohio, 412; Izon v. Gorton, 7 Scott, 546. The order denying a new trial was therefore correct, and it is affirmed. It is conceded, however, that the judgment is for too much money, but the counsel here differ as to the amount of the excess, and we have no means of satisfactorily ascertaining it. Harpending v. Haight. The judgment is therefore reversed, and the cause remanded, with directions to the court below to render judgment in favor of the respondent here for such sum of money for rent, interest and costs, as may be proper, not including, of course, the costs of the appeal, which must be paid by the respondent. HARPENDING, petitioner, v. HAIGHT. (39 Cal. 189.) Constitutional law-return of bills to legislature by governor — mandamus to governor. Under a section of the constitution requiring all bills passed by the legislature to be presented to the governor for his approval, to be returned with his objections in case of non-approval; and providing, "that if any bill shall not be returned by the governor within ten days 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 adjournment, prevent such return," the governor sent to the legislature a bill not approved, with his objections, on the tenth day, and before the usual hour for adjournment. The legislature had, however, adjourned to the day following, and the messenger returned the bill to the governor, who retained it thereafter. Held, 1. That the governor had not returned the bill within the meaning of the constitution. 2. That the legislature had not, by adjournment, prevented such return, the adjournment not being final. 3. That the court had jurisdiction to compel the governor, by mandamus, to cause the bill to be authenticated as a statute. TEMPLE, J., dissenting. THE petitioner moves for a peremptory writ of mandamus to be directed to the respondent, commanding him, as governor of the state, to cause to be authenticated as a statute a certain bill now in his possession, known as senate bill No. 258, which passed both houses at the late session of the legislature. The case came before the court upon a voluntary submission made by the parties, upon the following agreed statement of facts: Now comes the petitioner and respondent, and, without action, agree upon the following facts, and submit the same to this court for adjudication: I. That petitioner has such an interest in the event of this proceeding as makes him a proper party thereto. Harpending v. Haight. II. That the respondent now is, and since the first Monday in December, 1867, has been, governor of the state of California. III. That the eighteenth session of the legislature of this state commenced on the first Monday in December, 1869, and ended on the 4th day of April, 1870; that there was no adjournment of the same after the 10th of March, 1870, and before said 4th day of April. IV. That on the 12th day of March, 1870, senate bill No. 258, entitled "An act to make, open and establish a public street in the city and county of San Francisco, to be called Montgomery street south, and to take private lands therefor," passed the senate of the state of California, and, on the 17th day of March, 1870, passed the assembly of said state, with amendments, which were concurred in by said senate on the same day. V. That on the 19th day of March, 1870, at 1 o'clock P. M. of that day, said bill was, by the enrolling committee of the senate, delivered to the respondent for his consideration, as governor. VI. That at the time said bill was delivered to the governor it was properly enrolled and authenticated, as prescribed by law. VII. That on the 31st day of March, 1870, at 4 o'clock P. M., the senate of said state adjourned, to meet at 11 A. M. next day. VIII. That on the 31st day of March, 1870, at 4:30 P. M., the private secretary of the governor entered the senate chamber witn said bill, and, with a message in writing from the governor, returned said bill to the senate, without his approval; that, finding the senate had adjourned, said secretary returned said message and bill to the governor, with whom they have ever since remained. IX. That said message had been signed by the governor before 4 P. M. on said day. X. That on the 1st day of April, 1870, the governor transmitted to said senate the following message: SPECIAL MESSAGE FROM THE GOVERNOR. The following special message from the governor was read: STATE OF CALIFORNIA, EXECUTIVE DEPARTMENT,Į To the senate of the state of California: I deem it my duty to communicate to your honorable body the reason why messages returning two bills, whose titles are hereinafter given, failed of being yesterday delivered to the senate. The bills referred to are substitutes for senate bill No. 293-" An act authorizing the parties therein named, their associates and assigns, to construct and VOL. II.-55 Harpending v. Haight. maintain a ship canal, from the city of Stockton to deep water on the San Joaquin river;" and senate bill No. 258 —“ An act to make, open and establish a public street in the city and county of San Francisco, to be called Montgomery street south, and to take private lands therefor." Messages, stating the reasons for withholding approval of these bills, were prepared and signed before the adjournment of the senate, and were transmitted through the usual channel to the senate chamber before the customary hour of adjournment. The senate having, by an adjournment until the next day, prevented the delivery of the messages and the return of the bills, they have failed to become laws, and will not, therefore, be deposited in the secretary of state's office to be certified, as required in the case of bills which become laws by lapse of time, without return to the house in which they originated. I have thought it proper to communicate the facts in the case to your honorable body, and to ask respectfully that the messages be spread upon the journals of the senate. H. H. HAIGHT, Governor. XI. That petitioner has demanded of respondent that he authenticate said bill in manner and form as provided by law in cases where bills become laws by not being returned to the house in which they originated, within the time prescribed by law, and that the governor has refused, and still refuses, so to do, but still retains said. bill without authentication. XII. That the standing rule of the senate, on said thirty-first day of March, required the senate to assemble in the evening for business, unless otherwise ordered; that such evening session was usual and customary at the time, it being but four days before the final adjournment; that upon said day the senate adjourned at said hour of 4 P. M. until the next morning, and that the motive of the mover of said adjournment was to prevent the return of said senate bill No. 293, and that said motion was made at the instance of petitioner. The facts agreed and stated in subdivisions 8, 9, 10 and 12 are agreed to, subject to the ruling of this court as to whether evidence to prove such facts would be admissible on the trial of any action involving the question whether said bill had become a law. Upon this statement it is agreed, that, if the court are of the opinion that said bill did become a law, a peremptory mandate may issue commanding the respondent to cause said bill to be authenticated as provided for by section 2 of an act entitled "An act for the authentication of statutes without the approval of the governor," approved May 1, 1852. H. II. HAIGHT, Respondent. HAMMOND, for Petitioner. Harpending v. Haight. Creed Hammond, being sworn, deposes and says, that he is of counsel for petitioner in this proceeding, and that the controversy is real, and that this proceeding is in good faith, to determine the rights of the parties. CREED HAMMOND. Subscribed and sworn to before me this sixth day of April, 1870 GEO. SECKEL, Clerk Supreme Court S. Hydenfeldt, W. P. Daingerfield, Hammond & Stratton, for petitioner. Jo Hamilton, Attorney-General, for respondent. WALLACE, J. It will be seen that the solution of the questions presented requires at our hands, in some degree, an examination into the respective rights and duties of the executive and legislative departments of the government, in the exercise by the latter of the law-making power of the state. It is of the deepest public concern, and of moment far beyond the mere decision of the particular case at bar, that the rights of each should be absolutely preserved from the possible assault of the other, and that neither, under cover of the performance of its own. functions, should be permitted to deprive the other of its just measure of authority, as conferred upon it by the constitution. The clauses of that instrument-through which, as we think, a decision of this controversy is to be reached-are contained in article 4 of the constitution, and are in the following language: * * * * * * * * * * * * SECTION 1. The legislative power of this state shall be vested in a senate and assembly, which shall be designated as the legislature of the state of California. SEC. 17. Every bill which may have passed the legislature shall, before it becomes a law, be presented to the governor. If he approve it he shall sign it; but if not he shall return it, with his objections, to the house in which it originated, which shall enter the same upon the journal and proceed to reconsider it. If, after such reconsideration, it again pass both houses by yeas and by a majority of two-thirds of the members of each house present, it shall become a law, notwithstanding the governor's objections. If any bill shall not be returned within ten days after it shall have been presented to him (Sundays excepted), the same shall be a law, in like manner as if he had signed it, unless the legislature, by adjournment, prevent such return. neas, The bill in question was presented to the governor, on Saturday, March 19th; and if he intended to return it with his objections, he |