Opinion
Opinion filed October 19, 1929.
1. STATUTORY CONSTRUCTION. Words and Phrases, "Presented" "Held by."
The statute requiring every bill after it has been passed, enrolled and signed by both speakers, to be "presented" to the Governor, and if the Governor shall fail to return the bill with his objections within five days after it shall have been "presented" to him, is complied with by the certificate of the clerk that the bill was "held by" the Governor for five days and returned by him without his signature. It could not have been "held" (as certified) unless it had been "presented" to him (as required by the statute). (Post, p. 574.)
Citing: Ch. 212, Acts of 1927; Sec. 1, Ch. 139, Acts of 1871 (Shannon's Code, Sec. 228).
2. CONSTITUTIONAL LAW. Legislative enactments.
The statute requiring every bill after it has been passed, enrolled annd signed by both speakers, to be "presented" to the Governor, and if the Governor shall fail to return the bill with his objections within five days after it shall have been "presented" to him shall be certified, etc., is merely directory. It is constitutional and not statutory prohibitions which bind the legislature. The creator is greater than its creations. (Post, p. 575.)
Citing: Ch. 212, Private Acts of 1927; Ch. 139, Acts of 1871 (Shannon's Code, Sec. 228).
3. CONSTITUTIONAL LAW. Failure of Governor to return bill with his objections.
The provision of the Constitution that "if the Governor shall fail to return any bill, with his objections, within five days (Sundays excepted) . . . the same shall become a law without his signature, unless," etc., is mandatory, and presupposes that the bill has been passed both houses in conformity to other constitutional requirements, where the Journals show the passage of the bill in due course and with all essential formalities. The passage of the bill thus appears and was, in fact, held by the Governor for more than five days and returned without his signature. It became the law of the land by operation of the Constitution, with or without specific or statutorially prescribed certification. (Post, p. 575.)
Citing: Johnson City v. Eastern Elec. Co., 133 Tenn. (6 Thomp.), 645. See Constitution, Article III, Sec. 18.
4. CONSTITUTIONAL LAW. Evidence of Journals.
The courts take judicial notice as to whether or not the constitutional procedure has taken place. (Post, p. 575.)
Citing: Heiskell v. Knox County, 132 Tenn. (5 Thomp.), 187.
FROM HAMILTON.Appeal from the Criminal Court of Hamilton County. — HON.C.W. LUSK, Judge.
FLETCHER BERNHARDT, for plaintiff in error.
W.F. BARRY, JR., Assistant Attorney-General, for the State.
Plaintiff in error appeals from a conviction for unlawfully and wilfully allowing his cattle to run at large. The case was made out by the State on its facts.
But it is insisted that the Statute creating this offense, Chapter 212 of the Private Acts of 1927, is unconstitutional, in that the certification or notation of the fact that the Governor was presented with the bill and failed to act on and return it within the constitutional limitation of five days, and that the bill thus became the law, was not made in accordance with the requirement prescribed by Section 228 of Shannon's Code. The Statute here brought into the Code prescribes the legislative procedure when and "if the Governor shall fail to return any bill . . . within five days (Sundays excepted) after it shall have been presented to him," and provides for the signing by the speakers of both houses of a certain form of certificate.
In the instant case (as in many others) it appears that the notation or certificate is signed by the Clerk of the Senate, in which body the bill originated, wherein it is recited in the statutory form that it had "been presented to him." It could not have "been held by him" unless it had "been presented to him."
But, we think it clear that the Statute cited is directory merely, and that each successive General Assembly is a law unto itself in this regard. It is constitutional and not statutory prohibitions which bind the Legislature. The creator is greater than its creations.
The Constitution provides that "If the Governor shall fail to return any bill, with his objections within five days (Sundays excepted) . . . the same shall become a law without his signature, unless," etc. This is mandatory. It presupposes that the bill shall have passed both houses in conformity to other constitutional requirements. In the present case the Journals show the passage of the bill in due course and with all essential formalities. When it was in fact held by the Governor for more than five days and returned without his signature it became by operation of our constitutional provision the law of the land, with or without specific or statutorially prescribed certification. In harmony with this view see Johnson City v. Eastern Elec. Co., 133 Tenn. 645. And as to notice of and the binding force of Journal recitals, see Heiskell v. Knox County, 132 Tenn. 187.
It results that the Act was in full force and effect and the judgment must be affirmed.