Слике страница
PDF
ePub

Concurring opinion of CLERKE, J.

he sends it to the secretary of state, who files it in his office.

But if he should disapprove of a bill, and has not time to exress his disapproval, in consequence of the adjournment of the two houses, then, there is a very manifest reason why it should be declared to be no law. That reason is, as I have intimated, the protection of this power of disapproval against the sinister designs of a bare majority, in the first instance, of the two houses. Without this provision, I repeat, the senate and assembly could nullify this power. For, as in a previous part of the sentence, it is declared, that unless the governor shall return the bill within ten days, it shall be deemed a law, the legislature, by adjourning, would deprive him of this right, unless it was further provided to be no law, in case of their adjournment, if he should disapprove of it.

Again, not only does the manifest object of the provision require this interpretation, but the language employed admits of no other. Let us again read the last sentence of the section. It says "If any bill shall not be returned by the governor, within ten days (Sundays excepted) after it shall be 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." Of course, the first part of the sentence means that the bill shall become a law, unless the governor returns it, with his disapproval and reasons, within ten days; so the latter part can contemplate nothing but the return, with his disapproval and reasons, * 529 ] which may be prevented by the adjournment. I have shown, it is only when the governor disapproves, that the return of a bill to the legislature is contemplated; when he signs a bill, he does not return it; he sends it, as I have said, to the secretary of state, who records it. The words, then, "prevent its return," do not and cannot apply to his approving and signing a bill.

To recapitulate, the Constitution of the State of New

Concurring opinion of CLERKE, J.

York, in no part of it, expressly or impliedly, prohibits the governor from signing bills after the adjournment of the senate and assembly. The words in the concluding sentence in the 9th section of article 4th, which have been supposed to import such a prohibition, apply solely to his disapproval of a bill in a certain event, and are designed for the protection of his right of rejection. The whole section prescribes the manner of approval and of disapproval. If he retains a bill, without signing it, for ten days during the session, his approval is to be presumed; but, if he retain it after the adjournment, without signing it, his disapproval is to be presumed, and it fails to become a law.

If the terms of the section admit of no other interpretation, of which I can entertain no doubt, it seems superfluous to consider the argument of precedent, or practice of the executive, under other constitutional governments. But, it may be well to observe, that with regard to the practice of the British government, no reason exists there, why the approval or disapproval of bills by the sovereign should be delayed after the prorogation of parliament. The sovereign exercises all her various powers and prerogatives in conformity with the advice of her council or cabinet, the members of which alone are individually responsible for the acts of the government. Every member of her cabinet is a member of either the House of Commons or the House of Lords. It is the duty and practice of each, vigilantly to watch the progress of every bill through the house to which he belongs. He generally takes an active part in considering and discussing it, and, before the end of the session, is fully prepared to advise the monarch to grant or to withhold the *royal assent. In fact, the latter prerogative has [ * 530 never been exercised since 1692, when William III. refused his assent to the bill for triennial parlia ments, which, however, he granted two years afterwards. With regard to the practice of the president of the

Concurring opinion of CLERKE, J.

United States and the governors of the several states, I believe, the former has always signed bills before the adjournment of congress, and many of the latter are in the habit of doing so, after the adjournment of the legis lative bodies with whom they are respectively concerned. But as far as mere custom or practice can have any bearing on the question before us, I can only say, that the practice of the supreme executive of every government, in a matter of this kind, must be guided by the express or implied language of the constitution under which he acts, or, in the absence of any such guidance, by necessity or expediency. The president of the United States is probably able, without serious inconvenience, to examine every bill before the adjournment of congress. At all events, if this question depended upon precedent, the practice which has obtained in our own state, may surely be adduced against that of any other government, and should be considered controlling. We have seen, that it has been the practice of many governors of this state, for a considerable number of years, to sign bills after the adjournment of the legislature.

With regard to the other constitutional objections presented on the demurrer, we entirely concur with the judge who decided the case at special term. The decision of the general term should be reversed, with costs.

Judgment reversed, and judgment at special term affirmed.

COMSTOCK, C. J., dissented.

Statement of the Case.

VAN DUZER v. HOWE and others.

Usury.-Blank acceptance.-Amendment.

The payment to an accommodation indorser of a sum excceding seven per cent. for the loan of his credit, the procuring of another indorser, and obtaining a discount of the bill, does not amount to usury.

Steel v. Whipple, 21 Wend. 103, said by Denio, J., to have been questioned, if not overruled by subsequent cases.

One who intrusts another with his blank acceptance, is liable to a bond fide holder, though filled up for a sum exceeding that limited by the acceptor, and this, it seems, on the ground of estoppel.

In an action on a bill of exchange, the want of an averment of a negotiation of it to the holder, may be supplied by amendment; the propriety of the allowance of such amendment is not reviewable in the court of appeals.

APPEAL from the general term of the Supreme Court, in the first district, where judgment in favor of the plaintiff upon a verdict had been affirmed.

This was an action by Van Duzen, the plaintiff, President of the New York Exchange Bank, as indorsee of a bill of exchange, against O. B. Howe & Co., the acceptors. The bill in question, bearing date the 9th June 1855, was drawn by H. L. Webb upon the defndants for $1200, payable to the order of the drawer, and was indorsed by James L. Dewey and Adam Smith. The answer denied the drawing and acceptance of the bill, and set up the defence of usury.

It appeared on the trial, that the defendants accepted the draft in blank, for the accommodation of the drawer, and also two other drafts of like import, with instructions to fill them up for sums not exceeding $1000 in the whole. *Webb filled up the draft in question for [ * 532 $1200, and procured Dewey to indorse it and get it discounted, for which he agreed to pay Dewey the sum

Opinion of the Court, per DENIO, J.

of $50. Prior to the negotiation of the bill, Webb borrowed $150 from Dewey, without reference to the draft. Dewey indorsed the bill, procured Smith's indorsement, and had it discounted at the plaintiff's bank. He paid over the proceeds to Webb, deducting the loan of $150, and also the $50 for his services.

The defendants contended, that the acceptance was a forgery; and, if not, that the bill was usurious in its inception. The judge held, that the acceptance was not a forgery; and that the draft was not affected with usury, unless originally negotiated to Dewey. The defendants' counsel excepted; and a verdict having been rendered for the plaintiff, and the judgment entered thereon af firmed at general term, the defendants took this appeal. There was also a question of an amendment in the case, which is sufficiently stated in the opinion of the court.

Reynolds, for the appellant.

Porter, for the respondent.

* 533 ] *DENIO, J.-There is no pretence, on the evidence, for the allegation of usury. Both witnesses 'who spoke of the loan of $150, by Dewey to Webb, stated that it was not made on the security of the bill; and the evidence is uncontradicted, that Dewey acted, in what he did, as Webb's agent, and not as the purchaser or holder of the paper. It is true, that, in making title to the bill, when pleadings were technical, the plaintiff would have set out an indorsement and delivery by Webb to Dewey, and by the latter to the bank, and would thus have stated, in effect, that Webb was at one time the holder, and then, inasmuch as he had $50 for his connection with its negotiation, it might be said, that the bill was infected with usury. But, in inquiring at what stage of a transaction respecting a negotiable bill or note, it became operative as commercial paper, successive in

« ПретходнаНастави »