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Although section 3, of article 10, declares that no money shall be drawn from the treasury, but in pursuance of appropriations made by law, and the section before quoted prohibits any law from being enacted except by bill, still appropriations have been made by joint resolutions, and the money drawn from the treasury under them. It may not be unprofitable,

It may not be unprofitable, in this connection, briefly to review the case of The State v. Bailey, already alluded to, which seems to sanction this species of legislation.

That case arose under a joint resolution, passed at the first session of the General Assembly after the taking effect of the present Constitution. See Acts of 1852, page 178.

The resolution directed the Secretary of State to have published in pamphlet form six acts passed at the same session, and to forthwith forward a copy thereof to each of the clerks of the Circuit Courts of the state. Among the laws thus directed to be published was the General Law of 1852, for the incorporation of railroad companies. The laws passed at the Session of 1851-2, were not regularly distributed, and did not take effect until May 6th, 1853. The question arose in The State v. Bailey, whether the General Railroad Law of 1852 was in force as early as February 25th, 1853, by virtue of its publication, or presumed publication, under said joint resolution.

The court presumed that the Secretary of State had done, prior to February 25th, 1853, what the joint resolution required to be done, because a reasonable time had elapsed for doing it; and held that, the authority of the joint resolution was sufficient to put the Railroad Law in force. To form an opinion of the correctness of this decision, it will be necessary to consider what enactments were then in force regulating the publication and distribution of the laws.

The Constitution of 1816 provided, “ that no Act of the General Assembly shall be in force until it shall have been published in print, except in cases of emergency.” The Constitution of 1851 provides, that “no act shall take effect until the same shall have been published and circulated in the several counties of the state by authority, except in case of emergency, which emergency shall be declared in the preamble, or in the body of the law."

The first clause of the schedule of the Constitution of 1851 provides, that “all laws now in force, and not inconsistent with this Constitution, shall remain in force until they shall expire or be repealed. When the Constitution of 1851 took effect, there was a law in force regulating the distribution and publication of the laws. Revised Statutes of 1843, page 169–73.

That law provided as follows, viz.

1st. That the Secretary of State should cause to be printed in one volume, 5000 copies of the General Laws, and annex to each volume his certificate, in print, that, he had compared the printed with the enrolled acts, and found them correctly printed.

2d. The number of volumes to be delivered to the clerk of each county was specified in the act-no county being entitled to less than forty-five copies.

3d. The act made it the duty of the clerk of the Circuit Court of each county, to make a record of the day and date of the reception of the acts in his office, and declared that such record should be deemed and taken as the time of the publication of said laws within said county.

These provisions of the Revised Statutes of 1843, not being inconsistent with the present Constitution, were continued in force by the first clause of the schedule before mentioned.

Here, then, we have a law in full force directing the general laws to be bound in one volume, each volume to be authenticated by the printed certificate of the Secretary of State, and requiring from forty-five to sixty copies of that volume to be delivered to the clerks of the Circuit Courts of the several counties, and requiring each clerk to make a record of the date of the reception, and constituting that record the evidence of the time of publication of said laws within the respective counties.

The Constitution does not provide that every act shall be in force from and after its publication and circulation in the several counties by authority, but it does provide that, no act shall take effect until the same shall have been published and circulated in the several counties by authority, leaving the General Assembly free to provide by law as to the extent and manner of the publication, or to postpone the taking effect of the laws, or any one or more of them, until a date subsequent to their actual publication. The Revised Statutes of 1813 provided what should be a publication, and required record evidence to be made of the date of such publication.

The joint resolution of June 9th, 1852, simply authorized and required the Secretary of State to publish, in pamphlet form, the Railroad Law and five other acts, and to forward one copy of the pamphlet to each of the clerks of the Circuit Courts of this state. It requires no authentication of the pamphlet, no record of its reception, and does not even pretend to declare that this publication shall put these laws in force.

Surely this joint resolution could not have the effect to change or modify the Law of 1843, or dispense with its requirements, unless the resolution was itself a law.

The Constitution says no law shall be enacted except by bill ; but to change or modify a law, or dispense with its requirements, is to enact a new law. This, it would seem clear, cannot be done by joint resolution.

The Supreme Court seems to give prominence to the fact that the joint resolution was approved by the Governor; but the question arises, what authority was there for presenting it to the Governor for his approval, and how that approval could give it validity or enlarge its scope ?

The court dispenses with the record evidence of publication required by the Act of 1843; presumes, without evidence, that the Secretary of State acted under the joint resolution, and that such action was taken prior to February 25th, 1853; because, by reasonable diligence, he could have acted long before that time.

It is further said, in the opinion of the court, that “it would seem too plain for argument, that, as the Legislature is made the judge by the Constitution of the proper discharge of his


duty by the secretary, when determining whether he shall be removed for a negligent discharge, so that body by implication, has the power of directing him as to the proper discharge of his duty while acting as secretary.”

The answer to this is that, the question is not whether the Legislature has power to prescribe the secretary's duties, but whether it can do it otherwise than by the enactment of a law; and if it cannot, whether it can contravene or change a law by joint resolution. It is true that the 7th section of the 6th article of the Constitution does provide, that all state officers shall, for crime, incapacity, or negligence, be liable to be removed from office, either by impeachment by the House of Representatives to be tried by the Senate, or by joint resolution of the General Assembly, two-thirds of the members elected to each branch voting in either case therefor. But how it can be implied from this, that the Legislature may prescribe the duties of a state officer, otherwise than by the enactment of a law, is by no means clear; and, when it is considered that the first section of the 6th article of the Constitution, in terms, says, that “the Secretary, Auditor, and Treasurer of State, shall perform such duties as may be enjoined by law,” it becomes clear that, these duties cannot be prescribed by a joint resolution, unless the Legislature may enact a law by such a resolution in the face of the plain prohibition inhibiting the enactment of any law except by bill.

The General Assembly may remove a state officer, but the Constitution prescribes how this must be done. It must (unless impeachment be resorted to be by joint resolution; and a bill to remove a state officer, if even passed by two-thirds of each branch, would be simply void. So the General Assembly may prescribe the duties of state officers, but it must be by law; and as it cannot enact a law except by bill, a joint resolution attempting to prescribe law either for the officer or the citizen is void.

The duties of the Secretary of State, in relation to the publication of the Acts of the Legislature, were enjoined by the Law of 1843; and this injunction could only be changed by the


enactment of a subsequent law. From a careful study of the Constitution, it is believed the following conclusions may be safely drawn, viz. :

1st. That the vote on the passage of every joint resolution, as well as on every bill, must be by yeas and pays. Article 4, section 18, last clause.

2d. That a majority of all the members elected to each House, is necessary to pass every bill or joint resolution; and all bills and joint resolutions so passed, must be signed by the presiding officers of the respective Houses. Article 4, section 25.

3d. That laws cannot be enacted, nor can money appropriated by joint resolution, or by any other instrumentality except by bill. Article 4, section 1; Article 10, section 3.

4th. That every bill, as well as every joint resolution, should be plainly worded, avoiding, as far as practicable, the use of technical terms. Article 4, section 20.

5th. That every bill must be read by sections on three several days in each House, unless in case of emergency, two-thirds of the House in which the bill may be depending, shall dispense with this rule; but that the reading of a bill by sections, on its final passage, shall in no case be dispensed with. Article 4, section 18.

6th. That the restriction last above-mentioned, has no application to a joint resolution; and that such a resolution may

be passed in either House (unless restrained by its own rules) upon the day upon which it is introduced. Even a reading by sections, or other subdivisions, on its final passage, may be dispensed with.

7th. That every act or bill shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. Article 4, section 19.

8th. That the restriction last above-named has no application to a joint resolution, and, consequently, that such a resolution may embrace various subjects (such as can be acted upon in that form), and may be valid without any title whatever. Such

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