페이지 이미지

are intended for the enactment of laws. These differences may be observed in other constitutions, and therefore a considerable extract from the opinion has been quoted in note below. The words of the enacting style need not precede a preamble, but should precede the entire law.?

1 Zollards, J.: “Is a resolution a has no reference to joint resolutions. bill? Perhaps as accurate a defini- No “act" shall take effect until the tion of a bill as can be found is that same shall have been published and given in Webster's Dictionary: 'A circulated in the several counties of form or draft of a law, presented to the state by authority, except in a legislature, but not yet enacted; cases of emergency, etc. Sec. 28. a proposed or projected law. “In This can have no reference to joint some cases statutes are called bills, resolutions. They take effect as soon but usually they are qualified by as passed. Bills and joint resolusome description; as, a bill of attain- tions must be passed by a vote of a der.' Bills and acts are sometimes majority of the members of the legused as synonymous terms. , Cush- islature, and when so passed shall ing, sec. 2055. The definition of a be signed by the presiding officers bill as given by Webster is that usu- of the respective houses. These ally accepted and acted upon; but requisites they have in common, but as we shall see, our constitution ex- the distinction is clearly kept up. tends it. The idea conveyed by the Sec. 25. In section 14 of article 5, a word bill is different from that con- bill is recognized as still a bill, after veyed by the word resolution. The its passage and until it has reached distinction between a bill and resolu- the governor. Every bill which has tion is clearly kept up in the consti- passed, etc., shall be presented to the tution of this state as an examina- governor. The governor is required tion of its provisions will show. We either to sign the bill, or return it to call attention to some of the sections the house in which it may have of article 4. Bills may originate in originated, with his objections, etc. either house, except revenue bills. If he sign the bill, it becomes a law. Sec. 17. The vote on the passage of If he veto it, and it is not repassed a bill or joint resolution shall be by the requisite vote, it does not betaken by yeas and nays. The bill come a law. Nothing of the kind must be read by sections on three is required in relation to a joint different days, etc. Sec. 18. A joint resolution under our constitution as resolution of different sections doubt we understand and interpret that less may be passed upon one reading. instrument. Such a resolution, if Every act shall embrace but one sub- passed by the requisite vote, and ject and matters properly connected signed by the presiding officers, is therewith, which subject shall be em- in full force. Nothing would be braced in the title. Sec. 19. There added to its validity and force by is no such provision in relation to the signature of the governor, nor joint resolutions. No act shall ever has he any power to defeat it by be revised or amended by mere refer- a veto. It does not go to him for ence to its title. Sec. 21. This section any purpose of approval or disap

2 Barton v. McWhinney, 85 Ind. 481.

§ 65. Same - The required enacting style must be adopted. The same question arose in Nevada as in McPherson v. Leonard. The provision of the constitution in Nevada

proval. It appears from the consti- common use of resolutions is in the tutional debates that a proposition to adoption of rules and orders relative include joint resolutions with bills in to the proceedings of the legislative the above section, so that they should body. Cushing, supra, sec. 779; be sent to the governor, was voted Mays Par. Prac. pp. 440, 447, 450. down. 2 Deb. Const. Conv. p. 1331. Our conclusion upon this branch of This action of the convention is the the case is that a joint resolution more significant when we recollect under our constitution is not a bill, that the convention was in a work of and that laws for the appropriation reform, adapting the new constitu- of money for public purposes or the tion to the increased wants and dan- payment of private claims gers of a rapidly increasing and pro- cannot be enacted by joint resolugressive population, and that the tion. This view is sustained by the constitution of 1816, which was be- cases of Barry v. Viall, 12 R. I. 1, 18; ing superseded, provided for joint Reynolds v. Blue, 47 Ala. 711 ; Brown resolutions as well as bills to be v. Fleischner, 4 Oregon, 132; Boyen sent to the governor for his approval v. Crane, 1 W. Va. 176.” or disapproval, and to be treated by In deference to the opinion in him and the legislature as bills if Swann v. Buck, 40 Miss. 268, the vetoed by him. It is very apparent court in May v. Rice appear to confrom this examination of the consti- sider the expression “every law,” in tution that the terms bill and joint the provision of the Indiana constiresolution, as used therein, do not tution relative to the enacting style, mean the same thing. They are as more comprehensive and exclusive widely different. Their functions are than the expression “the laws of this altogether different. Authority to state” in the corresponding provisact by joint resolution is given, af- ion of the Mississippi constitution. firmatively, by the constitution in The latter are the words of the Misbut few instances.

sissippi constitution, and the court, “ By such resolution, the two houses in Swann v. Buck, said, “ there are may adjourn for more than three no exclusive words in the constitudays. Art. 4, sec. 10. Certain offi- tion negativing the use of any other cers may be removed by such resolu- language;" meaning, doubtless, that tion. Art. 6, sec. 7. Possibly under the constitution did not forbid the section 17 of article 5, the powers use of any other words, or the pasgranted to grant pardons, etc., may sage of a law without those prebe exercised by such resolution. Be- scribed; for “the laws of this state sides the authority thus granted, a include all, as much as the expresjoint resolution doubtless may be the sion “every law.” If a command means of expressing the legislative broad enough affirmatively to include will in reference to the discharge of all the laws implies a negative, then an administrative duty, if such ex- one is implied from the language of pression falls short of the enactment the constitutions of both states. of a law. The general and most 129 Md. 386; ante, $ 2.

is that “the enacting clause of every law shall be as follows: * The people of the state of Nevada, represented in senate and assembly, do enact.?” In the case in which the question was discussed,' it appeared that an act was passed in the enacting clause of which there was omitted the words “senate and.” The act was held unconstitutional and void. In the opinion, the court responds to the declaration in the Maryland case that the enacting style is not of the essence and substance of the enactment. Hawley, C. J., said that statement is clearly erroneous and the opinion fallacious. “How can it be said that these words are not of the essence and substance of a law when the constitution declares that the enacting clause of every law shall contain them." He quoted, with apparent approval from the dissenting opinion of Stewart, J., in the Maryland case, that it is incumbent on the law-making department to pursue the constitutional mode. “If a positive requirement of this character

can be disregarded, so may others of a different character; and where will the limit be affixed or practical discrimination made as to what parts of the organic law of the state are to be held advisory, directory or mandatory? Disregard of the requirements of the constitution, although, perchance, in matters of mere form and style, in any part, in law, may establish dangerous examples, and should in all proper ways be discountenanced. The safer policy, I think, is to follow its plain mandates in matters that

I may appear not to be material, in order that the more substantial parts may be duly respected. If those who are delegated with the trust of making the laws, from the purest motives improvidently omit the observances of the constitution under any circumstances, such oversight may be referred to in the future by others, with far different views, as precedents, and for the purpose of abuse. A higher responsibility is imposed upon those selected by the people for the discharge of legislative duty, and a greater obligation is demanded of them to exemplify, by their practice, a careful compliance with the constitution. By a vigilant observance of its commands, the more reasonable is the probability that the best order will be secured. It is unnecessary to illustrate, by any

1 State v. Rogers, 10 Nev. 250.

[ocr errors]

argument, the soundness of this general consideration, which I am sure all will admit to be unquestionable, that a strict conformity is an axiom in the science of government. I certainly entertain such profound conviction of its truth that I do not feel authorized to give my approval to this act as a valid law; but, on the contrary, am constrained to say that the omission of the style required by the constitution is fatal to its validity.” 1

$ 66. The modern constitutions go more and more into detail in regulating the exercise of the several powers which they grant. The object is manifestly to correct existing or apprehended mischief; not to legislate merely for order and convenient system. These regulations are in the fundamental law; they express the sovereign will of the people, and ought to be treated as limitations on the exercise of those powers. The modes prescribed for the exercise of the granted powers cannot be severed from the substantive things authorized to be done; the manner directed is the means — the appointed action — through which alone the power is effective for the substantive objects intended to be accomplished. The legislature must be constituted, sit at the time and place, and proceed in the methods dictated by its creator; otherwise it is not clothed with nor exercising the sovereign legislative power. The great weight of authority supports this view.?

1 Cushing's L & Pr. Leg. Ass. to establish those fundamental maxJ. 819, § 2102; Seat of Government ims, and fix those unvarying rules, Case, 1 Wash. T. 115.

by which all departments of the gov2 See ante, SS 30, 41; post, $ 79; ernment must at all times shape their Cooley, Con. L. 94. This learned conduct; and if it descends to preauthor says the courts tread upon scribing mere rules of order in unesvery dangerous ground when they sential matters, it is lowering the venture to apply the rules which dis- proper dignity of such an instrutinguish directory and mandatory ment and usurping the proper provstatutes to the provisions of a consti- ince of ordinary legislation. We are tution. “Constitutions do not usually not, therefore, to expect to find in a undertake to prescribe mere rules of constitution provisions which the proceeding, except when such rules people, in adopting it, have not reare looked upon as essential to the garded as of high importance, and thing to be done; and they then must worthy to be embraced in an instrube regarded in the light of limitations ment which, for a time at least, is to upon the power to be exercised. It control alike the government and the is the province of an instrument of governed, and to form a standard by this solemn and permanent character which is to be measured the power

$ 67. The legislative power cannot be delegated. The power to make laws for a state vested in the legislature is a sovereign power, requiring the exercise of judgment and discretion. It is a delegated power,-delegated in a constitution

a by the people in whom inherently are all the powers. On common-law principles, as well as by settled constitutional law, it is a power which cannot be delegated.'

This is a general rule or maxim; but like all other rules of the common law it is flexible, extending as far as the reason and principles on which it is founded go, and ceasing when the reason ceases. It admits of exceptions connected with the principle which supports the rule, or which may be presumed which can be exercised as well by the ers delegated, and with a view to delegate as by the sovereign people leave as little as possible to implicathemselves. If directions are given tion.” People v. Supervisors of Cherespecting the times or modes of pro- nango, 8 N. Y. 328. ceeding in which a power should be 1 Carlisle v. Carlisle's Adm. 2 Harr. exercised, there is at least a strong 318; Berger v. Duff, 4 John. Ch. 368; presumption that the people designed Hunt v. Burrel, 5 John. 137; Farnsit should be exercised in that time worth v. Lisbon, 62 Me. 451; Brewer and mode only.” State v. Johnson, V. Brewer, id. 62; State v. Hudson 26 Ark. 281; Wolcott v. Wigton, 7 County, 37 N. J. L. 12; State v. CopeInd. 44; per Bronson in People v. land, 3 R. I. 33; Willis v. Owen, 43 Purdy, 2 Hill, 36; Greencastle Town- Tex. 41; People v. Collins, 3 Mich. ship v. Black, 5 Ind. 566; Opinion of 343; Rice v. Foster, 4 Harr. 479; State Judges, 6 Sheply, 458. See People v. v. Parker, 26 Vt. 362; Lockes' Appeal, Lawrence, 36 Barb. 177. The essen- 72 Pa. St. 491; Parker v. Commontial nature and object of constitu- wealth, 6 id. 507; State v. Swisher, 17 tional law being restrictive upon the Tex, 441; Barto v. Himrod, 8 N. Y. powers of the several departments of 483; People v. Stout, 23 Barb. 349; the government, it is difficult to com- Thorne v. Cramer, 15 Barb. 112; Bradprehend how its provisions can be re- ley v. Baxter, id. 122; State v. Wilgarded as merely directory.” Nichol- cox, 45 Mo. 458; Santo v. State, 2 son, C. J., in Cannon v. Mathes, 8 Iowa, 165; Ex parte Wall, 48 Cal. 279 ; Heisk, 504, 517. Mr. Cooley adds that Geebrick v. State, 5 Iowa, 491; State “We impute to the people a want of v. Beneke, 9 id. 203; State v. Weir, 33 due appreciation of the purpose and id. 134; S. C. 11 Am. R. 115; Comproper province of such an instru- monwealth v. McWilliams, 11 Pa. St. ment, when we infer that such direc- 61; Maize v. State, 4 Ind. 342; Meshtions are given to any other end. meier v. State, 11 id. 482; Cincinnati, Especially when, as has been already etc. R. R. Co. v. Commissioners, 1 said, it is but fair to presume that the Ohio St. 77; Cooley's Con. Lim. 142; people in their constitution have ex- Slinger v. Henneman, 38 Wis. 504; pressed themselves in careful and Wayman v. Southard, 10 Wheat 1, 42; measured terms, corresponding with Alcorn v. Hamer, 38 Miss. 652. the immense importance of the pow

[ocr errors]
« 이전계속 »