in some cases that the objection should be made by plea, which implies that the validity may be made to depend on the determination of an issue of fact. But this notion has been abandoned in the court in which it originated, and never obtained a footing in any other jurisdiction. The court is required to take notice ex officio of general laws; its peculiar function is to determine what the law is, and expound it; therefore it would be at once absurd and inconvenient to submit such a question to a jury. It is more logical and more consistent with principle to treat the evidence, so called, produced upon such an objection as being presented for the information of the court in the same sense in which law-books are read; facts are only incidental to the research, as when a court must deal with them to some extent, to learn if authorities cited are authentic. In Gardner v. The Collector, Miller, J., said of the public statute in question: “It is one of which the court takes judicial notice, without proof, and therefore the use of the words 'extrinsic evidence' is inappropriate. Such statutes are not proved as issues of fact as private statutes

are."

a

$ 55. When acts should be approved. The legislative power is generally in terms vested by the organic law in the legislature or general assembly consisting of two branches; though in acts of congress organizing territorial governments it has been usual to vest it in the governor and general assembly. He is thus made a constituent of the legislature, as the king in the English system is a constituent of parliament. The legislative practice, however, is the same in the territories as in the states, and the same as in parliament, as to the part taken by the executive in the enactment of laws. The two houses formulate and adopt in the first instance all legislative measures, and the executive acts merely to approve or disapprove these measures. His function is of the same nature as that of members of the two houses, except that it is negative, and that by pursuing the course prescribed in the para

Cas. 426; Ballou v. Black, 17 Neb. People v. Commissioners, 54 N. Y. 389.

276; State ex rel. v. Foote, 11 Wis. 1 People v. Supervisors, 8 N. Y. 317; 11. Falconer v. Campbell, 2 McLean, 195. 36 Wall. 508.

2 People v. Devlin, 33 N. Y. 269;

mount law acts may acquire the force of laws without his concurrence.

1 In People v. Bowen, 21 N. Y. 520 the light of the discussion which they et seq. (S. C. 30 Barb. 24), Denio, J., have thus undergone. To my mind thus discusses the nature of the duty it is clear that this involves a particiand power of the executive in the en- pation on the part of the governor actment of laws: “The question as with the two houses of the legislature to the nature of the governor's agency in the enactment of laws. It would raises, I think, rather a dispute about not be correct language to say that terms than one concerning the sub- he forms a branch of the legislature, stance of things. Whatever the au- for the constitution has limited that thority touching the enactment of designation to the senate and assemlaws, with which the governor is bly; but it would be equally incorrect clothed, shall be called, it is of the to affirm that the sanction which he same general nature with that which is required to give to or withhold is exercised by the members of the from bills before they can become two houses. He is to consider as to operative does not render him a parthe constitutionality, justice and pub- ticipator in the function of making lic expediency of such legislative laws. The forty-seventh number of measures as shall have been agreed “The Federalist,' written by Mr. upon by the two houses, by the ordi- Madison, treats of the separation of nary majorities, and be presented to the great departments of the governhim; and he is to accord or withhold ment, and it is there shown that the his approbation according to the re- concurrence of the executive magissult of his deliberations. This is trate with the proper legislature in plainly the function of a legislator. the enactment of laws as arranged in The sovereign of England, who is the constitution of the United States charged with the same duty in respect is not, in spirit, a violation of the to acts of parliament, is considered principle, so strongly insisted upon to be a constituent part of the su- by Montesquieu and other writers preme legislative power. 1 BL Com. upon constitutional government, that 261. It is true that his determination constitutional liberty cannot exist to disapprove a bill deprives it of any where the legislative and executive effect, while one disallowed by the powers are united in the same pergovernor may yet be established by son. Mr. Madison considers the qualian extraordinary concurrence of fied veto accorded to the president as votes in the houses. Thus, though effecting a partial distribution of the the action of the executive is less po- legislative authority between him and tential here than in England, the the congress, but argues that it is not quality of the act, namely, deliberat- objectionable, because neither authoring and determining upon the pro- ity can, in any case, exercise the priety of laws proposed to be enacted, whole power of the other. He shows, is precisely the same. Besides mak- also, that in certain states, in the coning his determination the governor is stitutions of which the principle of required, in case it is unfavorable to Montesquieu is laid down in terms the law, to submit his objections to with great positiveness, there is an the legislature which is to examine intermingling of the legislative and them, and again pass upon them in executive departments in the actual

In New York it is held that after the final adjournment of the legislature the governor may act upon bills submitted to him. Such seems to have been the practice sanctioned by judicial decision under similar constitutional provisions in Georgia, Illinois 3 and Louisiana.

2

arrangement of the details of govern- the bill is disapproved of by him, it
ment. Our own constitution fur- falls to the ground by the express
nishes another example; for though provisions of the constitution, for the
it is declared that the whole legisla- grounds of his disapproval cannot be
tive authority shall be vested in the passed upon by the legislature. But
senate and assembly; still no law can if the proposed law meets with his
be enacted which has not been sub- approval, there is no reason why the
mitted to the judgment of the gov- public will, expressed by all the offi-
ernor. His agency cannot, therefore, cial bodies and persons with whom
be considered as merely a power to the constitution has intrusted the
refer back bills for further considera- province of making laws, should fail
tion by the legislature. His approval of effect.
is regarded as generally essential to " It has been argued that, as the
the enactment of laws, though his governor cannot, in the recess of the
disapproval is not necessarily fatal to legislature, compel the reconsidera-
them, but may be overcome, where tion of bills to which he is unwilling
the legislature, upon a consideration to yield his consent, he might be in-
of his objections, shall repass them by duced to approve those which are,
an extraordinary majority.”

in some respects, objectionable, but
1 Id. Denio, J., continuing the which contain other provisions im-
opinion from which we quoted in the portant to the public welfare. This
last note, said that, in his opinion, “it argument is not without force, but I
is not a just construction of the think it should be assumed that he
power intrusted to the governor to would never interpose a veto to a bill
consider it as merely an authority to which he did not conscientiously be
require a further consideration of lieve ought not to become a law, and
bills which he shall disapprove. In that he would never approve one to
one respect the effect of the govern- which such objection, in his opinion,
or's determination is different when existed. Should a bill of the charac-
the legislature is in session and when ter suggested be left in his hands at
it is not. In the latter case, if he ap- the adjournment, the remedy for the
proves, the concurrence of the whole public inconvenience, which might
law-making power is secured, pre- be occasioned by the failure to enact
cisely as though the legislature was the sound parts, would be found in
in session. The bill has received the the power to again call the legislature
concurrence of all the functionaries together, which is vested in him for
which the constitution requires shall this and the like occasions."
unite in enacting a perfect law. He 2 Solomon v. Commissioners, 41 Ga.
cannot state objections, for there is 157.
no public body in existence to whom 3 Const. 1848, art. 4, § 21; Seven
they can be submitted. If he neglect Hickory v. Ellery, 103 U. S. 423.
to act, which he will of course do if 4 State v. Fagan, 22 La. Ann. 545.

a

$ 56. The organic act of Nevada territory vested the legislative power in the governor and legislative assembly. It was therefore held that, being a part of the legislative body, he could only concur in the passage of a law whilst the other branches had a legal existence. The signing of a bill by the governor is the mode appointed in the constitutions for him to signify his approval. When he has signed it it will become a law though he send a message to the legislature, or the house in which it originated, setting forth objections to it. So it has been held that after a bill has been regularly passed by the two houses, and has been presented to the governor for approval, it cannot be recalled by their joint resolution. The schedule of the Kansas constitution provides that all officers under the territorial government should continue in the exercise of the duties of their respective departments until superseded under the authority of the constitution. Under this provision it was held that the territorial governor properly approved an act after the act of admission had passed."

$ 57. How a bill will become a law without approval.Without the express approval of the executive a bill passed by the legislature can become a law only in two cases. First, when he fails to return it with his objections within the time prescribed by the constitution; second, when it is passed over his objections by the required vote. Many constitutions provide that an act shall become a law without the governor's signature if he retain it for a certain number of days after it is presented to him for approval," unless the adjournment of the legislature shall prevent him from returning it within that time, and in that case that it shall not become a law. The adjournment intended by this provision is the final adjournment, not adjournments from time to time. Where Sundays are excepted in the specification of the period; and under the provision sometimes added, that "the governor may approve, sign and file in the office of the secretary of state within three days after the adjourment of the legislature, any act passed during

1 School Trustees v. Commissioners, 1 Nev. 335; Birdsall v. Carrick, 3 Nev. 154.

2 State v. Whisner, 35 Kan. 271. 3 Wolfe v. McCaull, 76 Va. 876.

4 State v. Hitchcock, 1 Kan. 186. 5 Birdsall v. Carrick, 3 Nev. 154. 6 McNeil

V. Commonwealth, 12 Bush, 727.

7 Miller v. Hurford, 11 Neb. 377. .

the last three days of the session, and the same shall become a law,” Sundays will be excepted by construction, as intended by the constitution, in order to give the governor three full working days after the adjournment. Such time being expressly granted in the limitation of time during the session, it is deemed not unreasonable to hold that there is implied the same exception of Sundays in the period given after the adjournment, for there is the same and stronger reason for it in the greater number of important bills usually passed during the last days of a session.'

$ 58. This provision is made in Iowa for bills passed during the last three days of a session: that they “shall be deposited by him [the governor) in the office of the secretary of state within thirty days after the adjournment, with his approval, if approved by him, and with his objections, if he disapproves thereof.” In a case in which the bill was presented to the governor during the last three days of the session, and he omitted to sign it, but within the thirty days filed it without objections with the secretary of state, it was held that it did not become a law - it could only become a law by his subsequent approval of it.?

$ 59. When a bill has been presented to the executive for his approval his responsibility commences, and the time specified in the constitution for his action is important and mandatory, for precise consequences of his action or non-action are defined. It must be presented to him during the session of the legislature, and he can only return it with objections when the body is in session to which the return must be made. If the session is ended or interrupted by adjournment; if the members have dispersed, and the officers are not in attendance, he cannot return it to the house in which it originated. He is not authorized to return a bill to the speaker of the house, to the clerk, or to any other officer, but only to the house in which it originated, and that can only be as a body." The return of a bill by laying it on the speaker's table and the announcement of a message from the governor, before the adjournment of the house, is a sufficient return of it, though

3 People v. Hatch, 33 III. 9, 135.

Stinson v. Smith, 8 Minn, 366.

2 Darling v. Boesch, 25 N. W. Rep. 887; S. C. 67 Iowa, 702.