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the house was at the time taking a vote by ayes and noes on a motion to adjourn, which was carried.'

The computation of the time for different purposes, both for executive action on bills presented for approval and in determining when acts take effect, is a subject of considerable interest. The discussion of it will be deferred until the latter topic is reached.

10pinion of Justices, 45 N. H. 608. of twenty-four hours, beginning and As to what shall be regarded as a re- ending at midnight.” Shaw v. Dodge, turn, and what should be considered 5 N. H. 465; Colby v. Knapp, 13 id. 175. as a day in this connection, the jus- This opinion answers the question tices in this opinion say: "Nor are whether the bill was properly prewe by any means prepared to say sented to the governor. It was left in that the legislative day was ended the executive office in the governor's necessarily by the adjournment of the absence, and it came to his notice on house, even though it might have the following day. It is supposed that been at the usual hour in the after- custom and habit have designated noon; or that the return of the bill where the executive business is done; at any convenient time during the and leaving the bill there on the govday to the speaker, although after the ernor's table, even in his absence, is a house adjourned for the day, would presentation. The justices say as to not have been sufficient. The provis- personal presentation elsewhere: “It ion of the constitution in relation to would be absurd to hold that the offithis subject should receive a reason- cers of the senate and house of repreable construction; and it can hardly sentatives are obliged, in order to be supposed that the time limited for perform their duty, to follow the govthe return of the bill has expired be- ernor wherever he may chance to go, cause that branch of the legislature whether in the state or out of it, upon in which the bill originated has ad- his private business as well as public, journed for the day, if the five days and present it to him in person wherlimited by the constitution have not ever he may happen to be.” expired. The word “day,” in its com- 2 See post, ch. V. mon acceptation, means a civil day

66

CHAPTER III.

FORMS OF LEGISLATION-REFERENCE TO THE ENACTING

POWER, AND THE DELEGATION OF IT.

$ 69. What is a delegation of legis

lative power.

$ 60. Forms of legislation.
62. Constitutional regulations of,

directory in certain states.
64. Mandatory in others.
65. As to enacting style.
67. Legislative power cannot be

delegated.

70. Exceptions which have been

established 71. Effect of submitting laws, etc.,

to popular vote. 75. Local laws may be submitted.

a

3

$ 60. Forms of legislation.— A bill is a form or draft of a law presented to a legislature, but not yet enacted, or before it is enacted; a proposed or projected law. This is the meaning of a bill in practice, and has been judicially commended.” It is an act after it has gone through the process of enactment and become a law. A legislative act or statute is a bill passed and approved under the introductory words, formula or style, “Be it enacted.” The term bill is sometimes loosely applied to mean the same as an act, as well as to other forms of proposed or completed legislation. These terms, bill and act, are used as synonymous in some of our constitutions.

$ 61. Ordinances have sometimes been distinguished from statutes in practice; not that to ordain is of less force than the expression to enact, but, as Lord Coke says, because an ordinance has not the assent of the king, lords and commons, being made by only one or two of those powers. It is, however, stated in Bacon's Abridgment that this distinction has been disputed. It is there laid down that “with regard to parliamentary forms this much seems agreed: that where the proceeding consisted only of a petition from parliament, and an answer from the king, these were entered on the parliament roll; and if the matter was of a public nature, the whole was

I Webster's Dict
2 May v. Rice, 91 Ind. 549.

* Cushing, L. & P. of Leg. Ass. 8 2055.

4 People v. Lawrence, 36 Barb. 185.

then usually styled an ordinance; if, however, the petition and answer were not only of a public but a novel nature, they were then formed into an act by the king, with the aid of his council and judges, and entered on the statute roll.”] It is also laid down by the same authority that an ordinance on the parliamentary roll, with the king's assent upon it, has, nevertheless, equal force with a statute.? The term ordinance is more usually applied to the acts of a corporation, and as synonymous with by-law. It has, however, been often used in more solemn acts of the states and of the general government." Resolutions, or joint resolutions, are a forin of legislation which has been in frequent use in this country, chiefly for administrative purposes of a local or temporary character, and sometimes for private purposes only. It is recognized in many of our constitutions, in which, and in the rules and orders of our legislative bodies, it is put upon the same footing and made subject to the same regulations as bills properly so called.” By legislative practice and usage, joint resolutions have the force of law, whether applied to administrative, local or temporary matters, or intended for important measures.

$ 62. Constitutional forms directory in certain states.Many constitutions provide that laws shall be enacted by bill, and direct that the style shall be, “Be it enacted,” etc. In a few states such provisions have been held to be directory. Thus, in Swann v. Buck, it was so held that a joint resolution passed by all the forms of legislation was valid -- that the word “resolved” is as potent to declare the legislative will as the word “enacted.” The court say: “The argument against requiring a literal compliance with any form of words in the enacting clause, as a condition of giving effect to a statute, would be very strong on the score of convenience; for the plainest expressions of the legislative will, and the most urgent in their character, would be constantly liable to be defeated by the slightest omission or departure from the established phraseology. No possible good could be achieved by such strictness, and the greatest evil might result from it. There

1 Bac. Abr. Statute A.

2 Id.

3 Cushing, L. & Pr. Leg. Ass. S 2403; Swann v. Buck, 40 Miss. 293.

6 Id.

3 Bish. Written Laws, $ 18.
4 Cush. L & Pr. Leg. Ass. S 2046.

i 40 Miss. 268.

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are no exclusive words in the constitution negativing the use of any other language, and we think the intention will be best effectuated by holding the clause to be directory only."

$ 63. The several constitutions of Mississippi make a plain distinction between bills and resolutions, as does the constitution of Indiana. There seems to be many of the contrasts pointed out in the opinion in May v. Rice,' which will presently be referred to particularly. The constitutions of Maryland have made no provision for any form of legislation but by“ original bill.” They have provided that “The style of all laws

shall be, 'Be it enacted by the general assembly of Maryland;' and all laws shall be passed by original bill.” 3 The case of McPherson v. Leonard does not altogether follow Swann v. Buck in the reasoning upon which the court arrived at the conclusion that the foregoing provisions are directory. The Mississippi case concedes that, to be valid, an act should refer to the enacting authority. That was the point of the objection to the act in the Maryland case. The court held the above provisions directory, and, therefore, as the court said, “may be disregarded without rendering the act void.” It was so held upon the rule applicable in the construction of statutes that provisions which relate to form, and not to the essence and substance of the thing to be done, are directory unless the statute is restrictive to the mode and form prescribed. The constitution of Missouri prescribes also a precise style, and declares it shall be the style of the laws of that state. The act in question in the City of Girardeau v. Riley 8 had no enacting clause or style. That provision of the constitution Win held directory and the act valid, and upon the same argument put forth in

191 Ind. 546. Const. 1817, art. 3, 540 Miss. 293. SS 4, 23, 24; art. 4, SS 15, 16; art. 6, 6 Citing Sedgw. on St. & Con. L.

2, 8, 10, 11, 14. Const. 1832, art. 3, 368 et seq., and cases there cited;

4, 23, 24; art. 5, SS 15, 16; art. 7, Smith on S. & C. Con. $ 679; Striker SS 2, 6, 7, 9, 10. Const. 1868, art. 4, v. Kelly, 7 Hill, 24; Pacific R. R. v. SS 23, 24, 25, 26, 32; art. 12, SS 2, 4, The Governor, 23 Mo. 368. See post, 8, 11.

SS 448, 451. 2 See post, $ 64.

7 Const. 1820, art. 3, § 36; Const. 3 Const. 1851, art. 3, SS 17, 18, 19, 20; 1865, art. 4, § 26; Const. 1875, art. 4, Const. 1864, art. 3, SS 26, 27, 28; Const. $ 24. 1867, art. 3, SS 27, 28, 29, 32.

8 52 Mo. 424. 4 29 Md, 377.

8

McPherson v. Leonard. The court remarked on the similarity of the language as to process requiring writs to run in the name of the state, and that that provision had been held to be directory.

$ 64. Constitutional forms mandatory in other states.The requirement that laws shall be passed under a precise enacting style, commencing with the words, “Be it enacted,” and referring to the enacting authority, has been held mandatory in Indiana, Nevada, Alabama, Rhode Island and West Virginia. In other states the courts have held other provisions of the constitutions of like nature to be mandatory. In Indiana the constitution plainly distinguishes between bills' and resolutions, as does the constitution of Mississippi. In May v. Rice, the question was whether money could be ap

" propriated by a joint resolution. It was held that such a resolution is ineffectual for that purpose. The constitution prohibits the drawing of money from the state treasury, except in pursuance of appropriations made by law. It also requires that “the style of every law shall be: ‘Be it enacted by the general assembly of the state of Indiana,' and no law shall be enacted except by bill.” “ The resolution was held not, eo nomine, enacted as a “bill.” The opinion answers three inquiries: 1st. “Is it essential to constitute a law, in the sense in which that term is used in the constitution, that the enactment shall have been presented and passed as a bill? 20. Is it essential in the enactment of a law that the words prescribed for the enacting clause shall be used, or may the words ‘Be it resolved' be substituted for Be it enacted?' Out of these inquiries,” say the court, “springs the more general one: 3d.

, Is this resolution a law, in any sense, as that term is used in these sections of the constitution

in relation to the appropriation of money?” The first two were answered in the affirmative, and the last in the negative.

The opinion points out important differences in the procedure for the passage of bills from that which may be followed in the adoption of resolutions, showing that the former only

.

1 Supra.

2 Davis v. Wood, 7 Mo. 165; Jump v. Batton, 35 id. 196; Doan v. Boley, 38 id. 449.

3 See ante, SS 29-35; post, $ 79.
491 Ind. 546.
5 Const. 1851, art. 4, sec. 1; art. 10,

sec. 3.

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