Harpending v. Haight.

was, by the general language of the constitution, bound to do so within a prescribed time after its presentation to him.

We shall proceed, therefore, to inquire whether or not the governor did make the required return of the bill to the senate, in which it had originated. There can be no doubt whatever of the meaning of the word "return," as used in this connection in the constitution As applicable to the bill itself, it is equivalent to the word "pre sented," as previously used in the same sentence. The bill must before it becomes a law, be "presented to the governor." It migh: be merely exhibited to that officer; and even if it should be immediately thereafter taken away or withdrawn, it might be contended that it had, nevertheless, been "presented" within the very letter of the constitution. But, when we come to reflect that the only purpose for which the bill is to be "presented to the governor" is to afford him an opportunity to deliberately consider its provisions and prepare his objections, if any he have, to its passage, we would instinctively reject such a presentation as being fictitious — merely spurious and certainly not that one contemplated by the constitution, because it would defeat, rather than promote, the very object intended.

And so, upon the other hand, when we come to consider the corresponding duty of the executive to "return" the bill to the senate in this case, we know, by attending to the results to be brought about by such "return," that it must be a step taken by which his own time for deliberation is ended, and that for the deliberation of the senate is begun; that the bill itself must be put beyond the executive possession; that it must be placed into the possession, actual or potential, of the senate itself; and that, as part of this return, the executive objections to the passage of the bill must be stated. For, unless these things be effected by the return, how can the senate enter the bill and executive objections upon its journal, or in what way proceed to the consideration of the objections themselves? Yet, the constitution enjoins upon the senate the performance of these several acts upon the return of the bill and objections to it. We think it clear that the presentation of a bill to the gov ernor, made by the legislature, under such circumstances as that he is prevented from considering its provisions, and a return of a bill, made to the house in which it originated, by the executive, but so made that the house can neither reconsider the bill nor examine the

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objections to its passage, do not in either case constitute the presentation or return required by the constitution.

And it is apparent to us that in the case at bar no return was ever so made as that either the bill or objections came to the possession or knowledge of the senate.

The facts upon this point are few. The senate had been in session on the 31st of March, and at four o'clock P. M. had adjourned until the following morning at eleven o'clock. Within a half an hour after the adjournment for the day the messenger of the executive entered the vacant senate chamber. The object of his appearance there was to impart to the senate the knowledge of the fact that the governor had vetoed the bill in question. He had with him the usual and appropriate evidence of the fact, for he bore in his hands. the bill itself to be returned, as well as the message of the governor addressed to the senate, informing that body, in the usual phrase, that the bill was therewith returned without the executive approval, and setting forth the reasons of his action in that respect. But the messenger did not deliver to the senate, nor deposit for its use with any officer of the senate, or with any other person, either the bill or message, but immediately returned them both to the governor himself, by whom they have ever since been retained. As a matter of fact, then, the senate, upon the withdrawal of the messenger from its chamber, was left in the same profound ignorance of the executive action in the premises as it had been at the moment of his appearance there. There was, therefore, no opportunity afforded for the taking of those steps by the senate which the constitution enjoins upon it in case of an executive return of a bill. And this circumstance is, as we have said, conclusive, in our opinion, that such a return cannot be considered to have been that one which is required by the constitution to be made. It sets that instrument at substantial defiance in the very act of pretended obedience to its mandates. And if such practice be inaugurated, might not the legislature easily retaliate upon the executive department? Would it be a difficult matter for it to send a messenger or member of the enrolling committee of one of the houses to the executive chamber with a bill for the executive consideration, who might not be able to find the governor at the moment that he sought him? Would it not be easy to suggest, in connection with the fact of his absence, that he was purposely avoiding the messenger-that such was his motive in absenting himself? And, then, if the legislature should

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claim that they had been thus prevented from actually presenting the bill to the governor, and that it had, therefore, become a law, would there not be found in the constitution just as much to warrant such a claim as is to be found there in support of the constructive return made by the governor to the senate in this case?

It is not difficult to foresee the result to which such a doctrine would lead in times of high party strife, or when a decided and irreconcilable difference of opinion between the executive and the legislature upon important measures had been developed. Indeed, if these proceedings had, on the part of the governor and his messenger, amounted to a veto of the bill at all, it was of necessity, under the circumstances, an absolute veto, for it was one from the consequences of which the senate had no means at its command to relieve the bill. Even though every senator might, in fact, have been in favor of the passage of the bill over the executive veto, there was no power, because there was no opportunity, to do so. It is scarcely necessary to remark that an absolute executive veto, based upon the return of a bill, is unknown to any constitutional system of government, state or federal, under which we live, and that such a veto can, under no circumstances, be upheld, without doing violence to both the letter and spirit of the constitution.

But the agreed statement informs us that the motive of the mover of the resolution to adjourn the senate was thereby to prevent the executive from returning the bill.

We mention this portion of the agreed case in order that it may not be supposed to have escaped our attention. It is proper, too, to add, that while this statement is contained in the record as a fact for our consideration in a mere legal point of view, it was admitted, in the oral argument had before us, that it has since been discovered that it is wholly untrue in point of fact, and that no such motive did actuate the mover of the resolution to adjourn. We state this as a matter of justice to the senator who made the motion in the senate to adjourn on the afternoon of March 31, upon whose public character the fact thus stated might, if not corrected in this manner, operate as a most unjust aspersion.

This fact was stipulated, however, not absolutely, but subject to the opinion of the court, as to whether evidence to prove such fact would be admissible on the trial of any action involving the question whether this bill had become a law.

Certainly no such evidence could be admitted on such a trial. It

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will be observed that the question does not extend to the motives of the majority of the senate, by whose votes the motion to adjourn was adopted. There is no pretense that the motives of that majority were not free from the designs imputed to the senator who introduced the resolution. And it would be unheard of that the action of that majority should be called in question because of the mere personal motive of the particular senator who moved the resolution. But, even had the stipulation involved the motives of the entire senate in passing the resolution to adjourn on the occasion referred to, no inquiry on that subject could be permitted in the trial of an action of this character. It has been so settled in this state by the cases of Fowler v. Peirce, 2 Cal. 168; People v. Bigler, 5 id. 23; Sherman v. Story, 30 id. 266, and by numerous foreign adjudicated cases and the opinions of text writers. We know of no authority which holds a contrary doctrine.

But, supposing that the law allowed proof to be introduced upon that point, and it should be conclusively established that the motive which actuated the entire senate in adjourning to the next day, upon the occasion referred to, was to prevent the executive from returning the bill on the 31st day of March, supposed to be the last of the ten days allowed him for such return, such proceeding, however in itself disgraceful and unworthy of the senate, would not even tend to the supposed result. We think that there can be no doubt that when the executive messenger arrived at the senate chamber, and found that the senate had adjourned for the day, he might have delivered the bill and message into the hands of the lieutenant-governor, president of the senate, the secretary or other officer of the senate, or to one of the senators, or to any proper person connected with, or engaged in the service of, the senate, to be called to its attention as soon as an opportunity might thereafter offer; and that such a delivery would have been as sufficient in law as though it had been delivered to the presiding officer or secretary of the senate in open session.

It was the duty of the messenger to communicate to the senate the message which he bore from the executive on that occasion. This was to be done in the most direct manner that circumstances would permit. It was impossible for him to immediately announce it to the senate, for that body was not in session. It had a right to be in recess, if it desired so to be, and it was not in the power of the executive or his messenger to recall it to its sittings. But its

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right to be in recess was no greater or higher than was the right of the executive to return the bill in question for its reconsideration; nor is there any reason why the free exercise of these admitted rights upon the part of the senate and governor respectively should bring them into collision. The senate has the unqualified constitutional power to adjourn for three consecutive days. Art. 4, sec. 15, Constitution. It must often happen that these three days will include the last day allowed the executive for the exercise of the veto power against the passage of a particular senate bill.

Now, if the mere fact of the recess of the senate, thus constitutionally taken, does operate to defeat, in a measure, the exercise of the veto power conferred on the executive by the constitution, then we have the strange spectacle of an irreconcilable conflict between the several clauses of that instrument itself, by which the senate, by the mere exercise of its own admitted constitutional authority to adjourn, violates the equally clear constitutional right of the executive to have it kept in session.

We are of opinion that the adjournment of the senate on March 31 did not curtail the veto power of the executive over the bill in question, nor should it even have embarrassed him in its exercise. The return should have been made in such manner as the circumstances would permit; it should, at all events, have left the bill and message beyond the executive control, and, if need be, in the immediate custody of some proper person, who would be likely to deliver it to the senate at the first opportunity. The best return that the circumstances would admit would, in our judgment, be a proper return. The maxim lex non cogit ad impossibilia would be applicable to such a condition of affairs. We know of no other rule, either, upon which the clear right of the governor to make the return to the senate can be reconciled with the equally clear right of the senate to be in recess at the time.

In the year 1864 a question of a similar character to this came before the supreme court of the state of New Hampshire. The constitution of that state is substantially the same as ours in the particulars involved, except that it limits the executive to five days in which to return a bill, instead of ten days, as in ours. The bill in question in that case, originating in the house of representatives of the state of New Hampshire, had been presented to the governor on Wednesday, August 17. The 21st of August falling upon Sunday, it resulted that the governor had the whole of Monday, August