Pennsylvania Advisory Opinions August 01, 1899: AGO 29

Advisory Opinion Text

IN RE APPLICATION OF GEORGE BURNHAM, JR., TO THE ATTORNEY GENERAL, ASKING THAT A SUGGESTION BE FILED IN THE COURT OF COMMON PLEAS OF DAUPHIN COUNTY FOR A WRIT OF MANDAMUS AGAINST THE SECRETARY OF THE COMMONWEALTH TO COMPEL THE PUBLICATION OF CERTAIN PROPOSED AMENDMENTS TO THE CONSTITUTION PASSED AT THE RECENT SESSION OF THE LEGISLATURE BUT VETOED BY THE GOVERNOR.

A petition has been presented to the Attorney General on behalf of a citizen of Philadelphia asking that a proceeding in the nature of a suggestion for a writ of mandamus to be instituted against the Secretary of the Commonwealth, to compel the publication of certain proposed amendments to the Constitution, passed at the recent session of the Legislature, but which failed to receive Executive approval. One of the proposed amendments was intended to change that provision of section 7, article 8, of the Constitution, which requires that registration of electors shall be uniform throughout the State. The other amendment provides for a modification of section 4 article 8 which now requires that all elections by citizens shall be by ballot, so that voting machines can be introduced into our election system. The proposed amendments were introduced separately into the Legislature in the nature of a joint resolution. Each resolution was referred to a committee, reported affirmatively, read at length on three separate days, considered and agreed to by both branches of the Legislature. After having passed that body, the proper official thereof, when they had been signed by the presiding officer of each house, certified them to the governor for his approval or disapproval. The Governor, not being satisfied, that there was any public necessity or demand for the changes proposed to be made by the amendments, and being informed that the costs and expenses to the people for publication, printing and holding elections for this purpose would amount to upwards of two hundred thousand dollars, concluded to exercise what he believed to be his proper prerogative under the precedents established by his predecessors, and a fair construction of the constitutional provisions, by interposing the veto power.

Counsel for petitioner, together with counsel representing the company interested in the voting machine amendment, contend that the disapproval of the Governor is inoperative and should be disregarded by the Secretary of the Commonwealth. This officer, however, as certainly was his duty in the .absence of any judicial determination of the question involved, accepted the action of the Chief Executive as binding upon him and refused to make publication of the proposed amendments when requested so to do. Not being satisfied with this termination of the controversy, the petitioner has appealed to the Attorney General, asking that a mandamus proceeding be instituted.

The Governor takes his right to disapprove the proposed amendments upon the twenty-sixth section of article 3 of the Constitution, which provides that every order, resolution and vote to which the concurrence of both houses is necessary, except on the question of adjournment, shall be presented to the Governor, and before it shall take effect, be approved by him, or being disapproved, shall be repassed by two-thirds of both houses.

Counsel for respondent contends that inasmuch as the article which provides the method of proposing amendments is silent on the subject of executive approval, it is to be read in connection with other sections, so that all of the constitutional provisions may be harmonized and stand together. On the other hand, it is argued that section 26, article 3, applies only to ordinary legislation and that an amendment to the Constitution is not such ordinary legislation as to come within its meaning.

The question of submitting Constitutional amendments to the Governor for his approval and proper practice in reference thereto has not been passed upon by the courts of our State. In the absence of such judicial interpretation it is customary to look to the precedents and decisions of the Executive and Legislative Departments for the best rule of construction in both cases. Courts will be influenced, although not necessarily controlled, by the contemporaneous construction of co-ordinate departments of government on questions peculiarly relating to official and parliamentary duty under the Constitution and statutes.

Counsel for respondent has called to our attention a number of precedents, covering a period of more than sixty years, in which legislation providing for amendments to the Constitution and resolutions containing special amendments,have been submitted to the Governor. Governor Ritner approved legislation of this character in 1833 and again in 1837; Governor Bigler in 1854; Governor Geary in 1871, also in 1872 approved a joint resolution containing a special amendment under the same circumstances as the ones passed at the recent session of the Legislature were submitted; Governor Hartranft approved legislation to appoint a commission to amend the Constitution in 1874; Governor Pattison recognized the right of interposing the veto power to such amendments in 1885, when he returned to the Secretary of the Commonwealth a proposed amendment with the following direction, to wit:

“Not having been filed in the Office of the Secretary of the Commonwealth, with my objections thereto, within thirty days after adjournment of the Legislature * * * * you are, therefore, hereby directed to cause it to be enrolled and published."

Governor Beaver approved the amendment to prohibit the manufacture and sale of intoxicating liquors in 1887 and 1889; in 1891 Governor Pattison approved the legislation providing for the calling of a convention for the purpose of amending the Constitution. On the other hand, the learned counsel for petitioner cites the amendments of 1857 and 1863, also the poll tax amendment of 1887 and 1889, which were not submitted for and did not receive Executive approval.

From the precedents above enumerated it is apparent that there has been a difference of opinion on the question involved for many years, but in a large majority of the cases the doubt has been resolved in favor of the right of the Governor to pass upon such legislation or amendments.

While precedents in our State largely preponderate in favor of the contention of the respondent, counsel for petitioner has cited several decisions of the courts of other states in order to show that the weight of legal authority in other jurisdictions sustains the position taken by him. The question was raised before the courts in the States of Louisiana, Nebraska and Colorado, where it was decided that a resolution proposing an amendment to the Constitution did not require the approval of the Governor. In other jurisdictions the opposite view has been held by the courts. In his treatise on constitutional conventions, Jameson sums up the authorities, in section 561, in the following language:

"In New York the propositions of amendments are sometimes incorporated in a bill, providing conditionally in one or more classes for submission to the people, and in those cases the bill is submitted to the Governor for his approval. The existing constitutions of Michigan and Minnesota provide that amendments may be proposed by a prescribed majority of the Legislature, after which they are required to be submitted by that body to the people. In the former state, the practice has been to effect this by a joint resolution, and in the latter by a bill; in both cases, however, combining the propositions and the clauses submitting them to the people in a single act. In both cases, this act is presented to the Governor for his sanction. In the constitutions of Georgia and Rhode Island, amendments are permitted to be made by the action of two successive Legislatures, without submission to the people; and in neither case are the resolutions proposing the amendments presented to the Governor. In the constitution of Missouri, authorizing amendments to be made in the same manner, the resolutions of the first Legislature are presented to the Governor, and those of the second not. In the constitution of Maine, finally, amendments may be proposed by the Legislature, which are then to be submitted to the people, the constitution itself containing particular direction as to the time and mode of holding the election, and no action on the part of the Legislature being requisite, except by resolution to notify the towns to vote on the proposed amendments as prescribed in the constitution. It is the practice to present the resolutions embodying the amendments to the Governor."

In a very well-considered case under the constitution of Nebraska, it was held that the proposed amendment should not be submitted for Executive approval, but, in delivering the opinion of the court, Mi'. Justice Maxwell says:

"It will thus be seen that there is no uniform practice in the several states in regard to the matter of submitting propositions to amend a Constitution; * * * the cases where the propositions have been submitted to the Governor being nearly as numerous as those where they were not submitted to him for his approval." (See 25, Nebraska, page 876.)

Black, in a recent edition of his work on American constitutional law, in speaking about the question of submitting propositions to amend the Constitution to the Governor, among other things, says:

"The proposition or resolution of the Legislature to refer the amendments to the popular vote may take such shape as to fall within the designation of the ordinary legislation and so require the assent of the Governor. The practice in different states in this particular is not uniform."

In legislative practice joint resolutions providing amendments have always been treated as ordinary legislation in our State. Such resolutions are introduced, referred to committees, read at length on separate days, signed by presiding officers, and certified to the Governor like ordinary legislation. If article 18 of the Constitution, which provides for its future amendment, stands independent of all .other sections, it must necessarily follow that the legislative practice in connection with resolutions proposing amendment is without authority.

From all the precedents and authorities hereinbefore referred to, it clearly appears that there is a diversity of opinion and practice on this question. This being the case, it is only proper that it should be finally determined in the courts and for this purpose the Attorney General is entirely willing that a proper proceeding shall be instituted.

The petitioner, however, insists that a mandamus be issued, compelling the Secretary of the Commonwealth to make arrangements for the publication of the proposed amendments, although disapproved by the Governor. In order that the publication be effective it must first appear on the 7th day of August next, but, as it seems to me, this is an impossibility. Even if the court below should decide the case prior to that date, it would be necessary for one side or the other to take an appeal, so that the controversy could be finally settled by a decision from the highest court. The final decision would come too late to cover the pending cases. Then, again, if the alternative mandamus should issue, and under it the Secretary of the Commonwealth take chances of making the publication, and it were afterwards decided by the courts that he acted without authority, a large amount of expenses would be incurred, for which nobody is responsible unless the Secretary himself.

Again, the respondent, in answer to the prayer of the petitioner, states that, entirely independent of the veto power of the Governor in such cases, it is impossible for him to make necessary arrangements and contracts for the publication of the proposed amendments for the reason that it will cost upwards of fifty thousand dollars, and that no appropriation, general or special, has been made for this purpose. There is no fund provided by law from which these expenses can be paid and he is therefore left without the necessary means to set the machinery in motion, even if he desired so to do. In this connection is cited the constitutional requirement that:

"No money shall be paid out of the Treasury except upon appropriations made by law and on warrant drawn by the proper officer."

In this instance there is no appropriation made by law and no officer authorized to draw a warrant for the expenses incurred. It will not be seriously contended that the Legislature can impose a duty upon a public official, the performance of which involves the expenditure of money, and then compel the performance of the alleged duty, without first having made an appropriation to defray the necessary expenses. As for instance, suppose The Legislature should pass an act requiring the Board of Public Grounds and Buildings to complete the new Capitol at a cost of not less than three million dollars, and fail to make an appropriation of a sufficient amount to pay for the improvements authorized to be made, no one will contend that the board could be compelled by mandamus to complete the work. It is my opinion that every joint resolution proposing an amendment to the Constitution should be accompanied with a clause making an appropriation to pay the expenses of publication, or, in the absence of such provision in the joint resolution itself, then an appropriation by separate bill, or in the general appropriation bill, should be made at the same time, so that public officers shall be provided with the necessary funds to pay expenses incurred in making contracts in compliance with their duties.

While to my mind this position is sound and a good defense to the proposed proceeding, this* and other important questions raised by the controversy are of such a character, there being a diversity of opinion in reference to many of them, that it is proper for the courts to finally determine the issue.

Therefore, a suggestion for a writ of mandamus in the name of the Commonwealth is allowed.

JOHN P. ELKIN, Attorney General.