their selection, defining their jurisdiction, and repealing all laws inconsistent therewith," could not constitutionally contain provisions which should authorize a defendant in a criminal case, on a trial for any offence, to be found guilty of any lesser * offence necessarily included therein. These cases must [*150] In all we have said upon this subject we have assumed the constitutional provision to be mandatory. Such has been the view of the courts almost without exception. In California, however, a different view has been taken, the court saying: "We regard this section of the constitution as merely directory; and, if we were inclined to a different opinion, would be careful how we lent ourselves to a construction which must in effect obliterate almost every law from the statute-book, unhinge the business and destroy the labor of the last three years. The first legislature that met under the constitution seems to have considered this section as directory; and almost every act of that and the subsequent sessions would be obnoxious to this objection. The contemporaneous exposition of the first legislature, adopted or acquiesced in by every subsequent legislature, and tacitly assented to by the courts, taken in connection with the fact that rights have grown up under it, so that it has become a rule of property, must govern our decision."2 Similar views have also been expressed in the State of Ohio. These cases, and especially what is said by the California court, bring forcibly before our minds a fact, which cannot be kept out of view in considering this subject, and which has a very important bearing upon the precise point which these decisions cover. The fact is this: that whatever constitutional provision can be looked upon as directory merely is very likely to be treated by the legislature as if it was devoid even of moral obligation, and to be therefore habitually disregarded. To say that a provision is directory seems, with many persons, to be equivalent to saying that it is not law at all. That this ought not to be so must be conceded; that it is so we have abundant reason and good authority 1 Foley v. State, 9 Ind. 363; Gillespie v. State, ib. 380. See also Indiana Cent. Railroad Co. v. Potts, 7 Ind. 681; State v. Squires, 26 Iowa, 340; State v. Lafeyette Co. Court, 41 Mo. 39; People v. Denahy, 20 Mich. 349. 2 * Washington v. Murray, 4 Cal. 388. * Miller v. State, 3 Ohio, N. s. 475; Pim v. Nicholson, 6 Ohio, N. s. 177. for saying. If, therefore, a constitutional provision is to be enforced at all, it must be treated as mandatory. And if the legislature habitually disregard it, it seems to us that there is all the more urgent necessity that the courts should enforce it. And it also [* 151] seems to us that there are few evils which * can be inflicted by a strict adherence to the law, so great as that which is done by the habitual disregard, by any department of the government, of a plain requirement of that instrument from which it derives its authority, and which ought, therefore, to be scrupulously observed and obeyed. Upon this subject we need only refer here to what we have said concerning it in another place.1 Amendatory Statutes. It has also been deemed important, in some of the States, to provide by their constitutions, that "no act shall ever be revised or amended by mere reference to its title; but the act revised or section amended shall be set forth and published at full length."2 Upon this provision an important query arises. Does it mean that the act or section revised or amended shall be set forth and published at full length as it stood before, or does it mean only that it shall be set forth and published at full length as amended or revised? Upon this question perhaps a consideration of the purpose of the provision may throw some light. "The mischief designed to be remedied was the enactment of amendatory stat utes in terms so blind that legislators themselves were sometimes deceived in regard to their effects, and the public, from the difficulty in making the necessary examination and comparison, failed to become apprised of the changes made in the laws. An amendatory act which purported only to insert certain words, or to 2 This is the provision as it is found in the Constitutions of Indiana, Nevada, Oregon, Texas, and Virginia. In Kansas, Ohio, Nebraska, Michigan, Louisiana, Wisconsin, Missouri, and Maryland there are provisions of similar import. In Tennessee the provision is: "All acts which revive, repeal, or amend former laws, shall recite, in their caption or otherwise, the title or substance of the law repealed, revived, or amended." Art. 1, § 17. In Texas it appears to be held that the legislature may repeal a definite portion of a section without the re-enactment of the section with such portion omitted. Chambers v. State, 25 Texas, 307. But quære of this. Any portion of a section amended which is not contained in the amendatory section as set forth and published is repealed. State v. Ingersoll, 17 Wis. 631. * substitute one phrase for another in an act or section which was only referred to, but not published, was well calculated to mislead the careless as to its effect, and was, perhaps, sometimes drawn in that form for the express purpose. Endless confusion was thus introduced into the law, and the constitution wisely prohibited such legislation." If this is a correct view of the purpose of the provision, it does not seem to be at all important to its accomplishment that the old law should be republished, if the law as amended is given in full, with such reference to the old law as will show for what the new law is substituted. Nevertheless, it has been decided in Louisiana that the [* 152] constitution requires the old law to be set forth and published; 2 and the courts of Indiana, assuming the provision in their own constitution to be taken from that of Louisiana after the decisions referred to had been made, at one time adopted and followed them as precedents. It is believed, however, that the general understanding of the provision in question is different, and that it is fully complied with in letter and spirit, if the act or section revised or amended is set forth and published as revised or amended, and that any thing more only tends to render the statute unnecessarily cumbrous. Statutes which amend others by implication, however, are not within this provision; and it is not essential that they even refer to the acts or sections which by implication they amend." 94. 3 People v. Mahaney, 13 Mich. 497. Walker v. Caldwell, 4 La. An. 297; Heirs of Duverge v. Salter, 5 La. An. Langdon v. Applegate, 5 Ind. 327; Rogers v. State, 6 Ind. 31. These cases were overruled in Greencastle, &c., Co. v. State, 28 Ind. 382. * See Tuscaloosa Bridge Co. v. Olmstead, 41 Ala. 9; People v. Pritchard, 21 Mich. 236; People v. McCallun, 1 Neb. 182; State v. Draper, 47 Mo. 29; Booneville v. Trigg, 46 Mo. 288. Under such a constitutional provision where a statute simply repeals others, it is not necessary to set them out. Falconer v. Robinson, 46 Ala. 340. Compare Bird v. Wasco County, 3 Oreg. 282. People v. Mahaney, 13 Mich. 496; Spencer v. State, 5 Ind. 41; Branham v. Lange, 16 Ind. 497; Lehman v. McBride, 15 Ohio, N. s. 573. Repeals by implication, however, are not favored. Ibid. And see Naylor v. Field, 5 Dutch. 287; State v. Berry, 12 Iowa, 58; Attorney-General v. Brown, 1 Wis. 525; Dodge v. Gridley, 10 Ohio, 177; Hirn v. State, 1 Ohio, N. s. 20; McCool v. Smith, 1 Black, 459; New Orleans v. Southern Bank, 15 La. An. 89; Blain v. Bailey, 25 Ind. 165; Swann v. Buck, 40 Miss. 268; Davis v. State, 7 Md. 151; State v. The Treasurer, 41 Mo. 16; Henderson's Tobacco, 11 Wal. 652. It was a parliamentary rule that a statute should not be repealed at the same session of its enactment, unless a clause permitting it was inserted in the statute itself; but this rule did not apply to repeals by implication,2 and it is possibly not recognized in this country at all, except where it is incorporated in the State constitution.3 Signing of Bills. When a bill has passed the two houses, it is engrossed for the signatures of the presiding officers. This is a constitutional requirement in most of the States, and therefore cannot be dispensed with; though, in the absence of any such requirement, it would seem not to be essential. And if, by the consti[153] tution of the State, the governor is a component part of the legislature, the bill is then presented to him for his approval. Approval of Laws. The qualified veto power of the governor is regulated by the constitutions of those States which allow it, and little need be said here beyond referring to the constitutional provisions for information concerning them. It has been held that if the governor, by statute, was entitled to one day, previous to the adjournment of the legislature, for the examination and approval of laws, this is to be understood as a full day of twenty-four hours, before the hour of the final adjournment. It has also been held that, in the approval of laws, the governor is a component part of the legislature, and that unless the constitution allows further time for the purpose, he 1 Dwarris on Statutes, Vol. I. p. 269; Sedgw. on Stat. and Const. Law, 122; Smith on Stat. and Const. Construction, 908. .3 Ibid. And see Spencer v. State, 5 Ind. 41. Spencer v. State, 5 Ind. 41; Attorney-General v. Brown, 1 Wis. 513; Smith on Stat. and Const. Construction, 908; Mobile & Ohio Railroad Co. v. State, 29 Ala. 573. Speer v. Plank Road Co., 22 Penn. St. 376. Hyde v. White, 24 Texas, 137. The five days allowed in New Hampshire for the governor to return bills which have not received his assent, include days on which the legislature is not in session, if it has not finally adjourned. Opinions of Judges, 45 N. H. 607. But the day of presenting the bill to the governor should be excluded. Ibid. As to the power of the governor, derived from long must exercise his power of approval before the two houses adjourn, or his act will be void. But under a provision of the Constitution of Minnesota, that the governor may approve and sign "within three days of the adjournment of the legislature any act passed during the last three days of the session," it has been held that Sundays were not to be included as a part of the prescribed time; 2 and under the Constitution of New York, which provided that, "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," it was held that the governor might sign a bill after the adjournment, at any time within the ten days. The governor's approval is not complete until the bill has passed beyond his control * by the constitutional [* 154] and customary mode of legislation; and at any time prior to that he may reconsider and retract any approval previously usage, to approve and sign bills after the adjournment of the legislature, see Solomon v. Cartersville, 41 Geo. 157. Neither house can, without the consent of the other, recall a bill after its transmission to the governor. People v. Devlin, 33 N. Y. 269. The delivery of a bill passed by the two houses to the secretary of the commonwealth according to custom, is not a presentation to the governor for his approval, within the meaning of the constitutional clause which limits him to a certain number of days after the presentation of the bill to veto it. Opinions of the Justices, 99 Mass. 636. 1 Fowler v. Peirce, 2 Cal. 165. The court also held in this case that, notwithstanding an act purported to have been approved before the actual adjournment, it was competent to show by parol evidence that the actual approval was not until the next day. In support of this ruling, People v. Purdy, 2 Hill, 31, was cited, where it was held that the court might go behind the statute-book and inquire whether an act to which a two-thirds vote was essential had constitutionally passed. That, however, would not be in direct contradiction of the record, but it would be inquiring into a fact concerning which the statute was silent, and other records supplied the needed information. 2 Stinson v. Smith, 8 Minn. 366. People v. Bowen, 30 Barb. 24. Where on the tenth day the governor sent a bill with his objections to the house with which it originated, but the messenger, finding the house had adjourned for the day, returned it to the governor, who retained it, it was held that to prevent the bill becoming a law it should have been left with the proper officer of the house instead of being retained by the governor. Harpending v. Haight, 39 Cal. 189. |