in some cases that the objection should be made by plea,1 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,3 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." The legislative § 55. When acts should be approved. 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. 11. 1 People v. Supervisors, 8 N. Y. 317; Falconer v. Campbell, 2 McLean, 195. 2 People v. Devlin, 33 N. Y. 269; 36 Wall. 508. mount law acts may acquire the force of laws without his concurrence.1 1 In People v. Bowen, 21 N. Y. 520 et seq. (S. C. 30 Barb. 24), Denio, J., thus discusses the nature of the duty and power of the executive in the enactment of laws: "The question as to the nature of the governor's agency raises, I think, rather a dispute about terms than one concerning the substance of things. Whatever the authority touching the enactment of laws, with which the governor is clothed, shall be called, it is of the same general nature with that which is exercised by the members of the two houses. He is to consider as to the constitutionality, justice and public expediency of such legislative measures as shall have been agreed upon by the two houses, by the ordinary majorities, and be presented to him; and he is to accord or withhold his approbation according to the result of his deliberations. This is plainly the function of a legislator. The sovereign of England, who is charged with the same duty in respect to acts of parliament, is considered to be a constituent part of the supreme legislative power. 1 Bl. Com. 261. It is true that his determination to disapprove a bill deprives it of any effect, while one disallowed by the governor may yet be established by an extraordinary concurrence of votes in the houses. Thus, though the action of the executive is less potential here than in England, the quality of the act, namely, deliberating and determining upon the propriety of laws proposed to be enacted, is precisely the same. Besides making his determination the governor is required, in case it is unfavorable to the law, to submit his objections to the legislature which is to examine them, and again pass upon them in the light of the discussion which they have thus undergone. To my mind it is clear that this involves a participation on the part of the governor with the two houses of the legislature in the enactment of laws. It would not be correct language to say that he forms a branch of the legislature, for the constitution has limited that designation to the senate and assembly; but it would be equally incorrect to affirm that the sanction which he is required to give to or withhold from bills before they can become operative does not render him a participator in the function of making laws. The forty-seventh number of 'The Federalist,' written by Mr. Madison, treats of the separation of the great departments of the government, and it is there shown that the concurrence of the executive magistrate with the proper legislature in the enactment of laws as arranged in the constitution of the United States is not, in spirit, a violation of the principle, so strongly insisted upon by Montesquieu and other writers upon constitutional government, that constitutional liberty cannot exist where the legislative and executive powers are united in the same person. Mr. Madison considers the qualified veto accorded to the president as effecting a partial distribution of the legislative authority between him and the congress, but argues that it is not objectionable, because neither authority can, in any case, exercise the whole power of the other. He shows, also, that in certain states, in the constitutions of which the principle of Montesquieu is laid down in terms with great positiveness, there is an intermingling of the legislative and executive departments in the actual 1 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 and Louisiana.* 3 arrangement of the details of government. Our own constitution furnishes another example; for though it is declared that the whole legislative authority shall be vested in the senate and assembly; still no law can be enacted which has not been submitted to the judgment of the governor. His agency cannot, therefore, be considered as merely a power to refer back bills for further consideration by the legislature. His approval is regarded as generally essential to the enactment of laws, though his disapproval is not necessarily fatal to them, but may be overcome, where the legislature, upon a consideration of his objections, shall repass them by an extraordinary majority." 1 Id. Denio, J., continuing the opinion from which we quoted in the last note, said that, in his opinion, "it is not a just construction of the power intrusted to the governor to consider it as merely an authority to require a further consideration of bills which he shall disapprove. In one respect the effect of the governor's determination is different when the legislature is in session and when it is not. In the latter case, if he approves, the concurrence of the whole law-making power is secured, precisely as though the legislature was in session. The bill has received the concurrence of all the functionaries which the constitution requires shall unite in enacting a perfect law. He cannot state objections, for there is no public body in existence to whom they can be submitted. If he neglect to act, which he will of course do if the bill is disapproved of by him, it falls to the ground by the express provisions of the constitution, for the grounds of his disapproval cannot be passed upon by the legislature. But if the proposed law meets with his approval, there is no reason why the public will, expressed by all the official bodies and persons with whom the constitution has intrusted the province of making laws, should fail of effect. "It has been argued that, as the governor cannot, in the recess of the legislature, compel the reconsideration of bills to which he is unwilling to yield his consent, he might be induced to approve those which are, in some respects, objectionable, but which contain other provisions important to the public welfare. This argument is not without force, but I think it should be assumed that he would never interpose a veto to a bill which he did not conscientiously believe ought not to become a law, and that he would never approve one to which such objection, in his opinion, existed. Should a bill of the character suggested be left in his hands at the adjournment, the remedy for the public inconvenience, which might be occasioned by the failure to enact the sound parts, would be found in the power to again call the legislature together, which is vested in him for this and the like occasions." 2 Solomon v. Commissioners, 41 Ga 157. 3 Const. 1848, art. 4, § 21; Seven Hickory v. Ellery, 103 U. S. 423. 4 State v. Fagan, 22 La. Ann. 545. § 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.* 3 § 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 1 Stinson v. Smith, 8 Minn. 366. 2 Darling v. Boesch, 25 N. W. Rep. 887; S. C. 67 Iowa, 702. 3 People v. Hatch, 33 Ill. 9, 135. |