Concurring opinion of CLERKE, J.

Some other reasons, of less cogency than those which have been mentioned, were urged on the argument. They have received the attentive consideration of the judges; but we are of opinion, upon the whole case, that the act under consideration is not void, on account of its having received the executive approval after the legis lature had adjourned. The other objections to the act were, we think, properly disposed of by the supreme court. The judgment appealed from should be reversed.

*CLERKE, J.—The principal and most interesting question presented in this case is, whether [* 524 the governor of this state has the constitutional power to approve and sign bills, after the adjournment of the legis lature. It is contended by the counsel for the respondents, that the whole legislative power of the state being vested in a senate and in an assembly, upon their adjournment, no power existed in any other department of the government to make the bill in question a law. He endeavors to maintain this position, upon the ground, that such a power would be an absolute power of determining whether a bill should become a law; which would be an exercise of legislative functions, not granted to the gov ernor by the constitution. It is confidently asserted by the counsel of the respondent, that the governor possesses no legislative functions, and he, consequently, maintains that, as the power of signing bills after the adjournment of the senate and assembly, would amount to an exercise of legislation, the exercise of such a power is unconstitutional and void.

The 9th section of article 4th of the Constitution of this state, prescribes a general outline of the method by which laws shall be enacted. It dictates the action of all the agencies which have anything to do with legislation, in the general sense of that word. The bill must be initiated in one of the two houses, and when it passes both, in the first instance, it is no more a law than when

Concurring opinion of CLERKE, J.

it passed only one. It is still necessary that it should be presented to the governor for his approval or disapproval. By his approval, he gives it life; then, only, it becomes a law; by his disapproval, it remains inert and inoperative; and, if the two houses should deem it of sufficient importance, nothwithstanding the non-concurrence of the governor, to make it a law, a new and somewhat different course of action becomes necessary on their part. The house, to which the governor has returned the bill, must record his objections and proceed to reconsider it; if after reconsideration, two-thirds of the members present shall agree to pass the bill, it must be sent, together with the objections, to the other house, by which it must likewise be reconsidered; and, if approved *by two* 525] thirds of all the members present, it becomes a law, nothwithstanding the objections of the governor.

Now, to say that this right of the two houses to pass a bill, notwithstanding the objections of the governor, divests him, as a branch of the government, of any legisla tive functions, or that he does not participate in the legis lative power, is the affirmation of a mere verbal distinction; it is a distinction without a difference. That he has an agency in making, though not in framing laws; that his action in enacting them is in many cases necessary, and, without that action, numerous bills practically fail to become laws, cannot be disputed; and it is of very little consequence, indeed, whether we call his action a participation in the legislative power, or an agency in enacting laws. That he has some instrumentality, and a very important instrumentality, in this work, is evident; and all we can say, is, that while he cannot make laws, without the concurrence of the two houses, they can, under certain circumstances, make laws without his concur

rence.

His power, indeed, in degree, is not as great as that of the Sovereign of the United Kingdom of Great Britain and Ireland; it is not an absolute veto, but a right of dis

Concurring opinion of CLERKE, J.

approval, which, at all events, arrests, and, in many instances, frustrates the action of the two houses.

It is conceded, by all writers on English constitutional law, that the sovereign partakes of the legislative power; but his legislative function is not, any more than that of the governor of this state, of the deliberative kind. As Wooddeson says, "It consists not in devising expedients, in altering or amending, or in conditional assent or dissent." It consists merely in the power of rejecting, and not in resolving.

For nearly two centuries, undoubtedly, after the origination of Parliaments in England, the commons used the style of very humble petitioners, their petitions frequently beginning with "your poor commons beg and pray," and concluding with," for God's sake and as an act of charity." It was, at length, however, discovered, that this gave, in fact, the whole power of legislation to the king; he modified and altered bills; and *out of [* 526 the petitions and answers, new statutes were extracted and framed, without the authority of the Lords or Commons. To remedy this evil, about the latter end of the reign of Henry VI., and the beginning of the following reign, bills were reduced, in the first instance, into the complete form of acts of parliament, in which they have ever since been framed, and thus come to the sovereign for assent or rejection. She has now no greater power in framing, altering, or resolving, than the presi dent of the United States, or the governor of this state. It is simply the power of rejection which the British sovereign possesses, although to a greater extent than the president or the governor: the difference, I repeat, being plainly in degree and not in kind.

But, it is urged, that the 1st section of article 3d of our state constitution declares, that the legislative power shall be vested in a senate and an assembly. In answer to this, we say, that, notwithstanding this declaration, section 9 of article 4 vests a power in the governor which

Concurring opinion of CLERKE, J.

we have endeavored to prove to be a participation, measurably, in the legislative power; and in construing the instrument, of course, the whole must be taken together. The action, therefore, of the governor, in the case before us, is relieved from the difficulty, if any really existed, suggested by the counsel of the respondents. We must then return to the section under consideration, and determine, from its general import or express terms, whether that action is in accordance with the constitution.

How is the approval or disapproval of the governor to be expressed or ascertained? The former is ascertained by his signature, or by not returning the bill to the legis lature within ten days (Sundays excepted); his disapproval is ascertained, except in the contingency, to which we shall presently refer, by his returning the bill, within those ten days, and stating his objections. This power of disapproval is a conservative, and, therefore, a most important prerogative for the governor. Whoever has reflected, by the light of history or of current events, upon the usurpations, corruption and recklessness of legislative * 527 ] *bodies, will at once recognise the importance of preserving it in its complete integrity. The numerous members of whom those bodies are composed, seldom feel the deep sense of responsibility by which the executive and judicial departments are generally influenced. Where duty is shared among numbers, it is seldom discharged with that solicitude which is felt when it is confined to one man, or to a few men. The consciousness of responsibility seems to be commensurate with the apportionment of duty. In proof of this, we have only to consider the conduct of nearly all legislative bodies, and particularly two examples, calamitously prominent in history-the Long Parliament of Great Britain, and the Legislative Assembly and National Convention of revolutionary France, which absorbed, in a brief period, all the powers of government, and became the most odious and cruel instruments of tyranny and corruption.

Concurring opinion of CLERKE, J.

Without a veto, absolute or qualified, this tendency would be unchecked; and, when conferred in the manner provided by our constitution, it could, were it not carefully guarded, be practically annulled or defeated by the intentional or unintentional action of the legislature. One most obvious method would be, by its adjournment within ten days after the bill is presented to the gov ernor. The constitution provides that he shall have ten days to consider the bill, within which time he may disapprove of it; now, if the legislature adjourned within the ten days, he would be deprived of this opportunity, if there was not a further provision to meet this contingency. This is the purpose, and the sole purpose, of the latter part of the last sentence of the section. It provides, "if any bill shall not be returned by the governor within ten days (Sundays excepted) after it shall have been presented to him, the same shall be a law, in like manner as if he had signed it, unless the legislature shall, by their adjournment, prevent its return; in which case, it shall not be a law." What object other than the one which I have indicated, could this provision serve? There could be no adequate object in declaring a bill passed by the two houses, but signed after the adjourn ment, to be no law. *Both having concurred and [ * 528 adopted the bill, and the governor afterwards concurring and signing it, no purpose whatever, in such case, could be fulfilled by a prolongation of the sesssion; no purpose indicated or declared by the constitution, could be effected or aided by it. When the governor signs a bill, during the session, he does not let it be borne in mind-return it to either house; the houses having nothing further to do with it. He frequently, no doubt, as a matter of information, apprises them, during the session, that he has signed a list of bills; but he is under no necessity or obligation to do so; in no instance, when he signs a bill, does he return it to either house;