The Austin weekly statesman. (Austin, Tex.) 1883-1898, 1895-09-26

been broken. Certainly it can not be
that this act had been continuously in
operation from its passage in 1889 until
its re-enactment as a part of the Revised
Civil Statutes. Unless it was, the rule
laid down by Mr.. Sutherland has no APP
plicatiOn. Fullerton VS.. Springs, Wis,
592; State VS.. Mccall, 8 Neb., 303) 10,
When did the Penal Code and the Re
vised Statutes respectively go into eff
feet! A correct answer to these propo-
sitions determines which is the latest
law and the last expression of legisla-
tive will. Upon the part of the State it
is insisted that the Civil Statute passed
the Legislature one day before the Penal
Code passed. Let us see. The Penal
Code passed the house April 10 and the
senate April %. But at this stage has
either bill passed the legislature? /
say not. Section Is, article 4, of the
constitution says: EVERY order. reso-
luton or vote TO which the concurrence
of both houses of the legislature may be
necessary, except on questions of adj
Journment, shall be presented to the gov
ernor before it shall take effect, shall be
approved by him, or being disapproyed
shall be repassed by both houses" Sec
ton ia provides that every bill which
shall have passed both houses of the
legislature shall be presented to the gov
ernor for his approval If he approves
he shall sign it, but if he disapproves it
he shall return it with his objection to
the house in which it originated. If any
bill shall not be returned within 10
law in like manner as if he had signed
it. $50 These constitutional pro-
visions make the governor part of the
lawmaking power of the State. Upon
this subject the supreme court of New
York says: Whatever the authority
touching the enactment of laws with
which the governor is clothed shall be
called it, is of the same general nature
with that which is exercised by the men,
bers of the two houses. He is to con-
slider as to the constitutionality,S justice
and public expediency of such legislative
measures as shall have been agreed upon
by the two houses by the ordinary ma
jorities and be presented to him, and he
is to accord or withhold his APPROPRIATIONS
according to the result of his delibera-
tions. This is plainly the function of a
legislator" (The People VS.. Bowen, p
N. Y, 521) .. r.I
4 The supreme court of California says:
SIN approving law the governor is not
supposed to act in the capacity of the
executive magistrate of the State, whose
duty it is to see that the laws are prop
erly executed, but as part of the legisla-
tive branch of the government" Fow-
Ter VS.. Pierce, 2 CAL, 173.)
The Penal Code was presented to the
governor April % and the Revised Civil
Statutes April 30, 1895. Both bills be-
came laws. without his approval, and
Mr.. Sutherland says: when no other
time is fixed a statute takes effect from
the time of its passage-from the date
of the last act necessary to complete the
process of legislation and give the bill
the force of law. When approved by
the executive the act of approval is the
last act and the date of it is the date of
the passage of the act. If passed after
a veto the date of the final vote is the
date of passage. When bill becomes
a law by the non-action of the executive,
under constitutional regulations, the
non-action of the executive is q quasi ap-
proval, not complete until the lapse OF
the. time prescribed for his affirmative
ACTION under the given conditions. -
Switzerland on stat. con-, Sec 104)
Where bill is presented to the governor
and he neither approves it nor returns it
with his objections it becomes a law at
the expiration of ten days during which
III.
Nell VS.. Commonwealth, ~ Bush, 1927
Where statute is declared to take eff
feet from and after it's passage it takes
effect at the very moment of its approval
by the governor. CThe People VS.. Clark,
l Cal, 406.)
The date of the presidents approval of
the bill is undoubtedly the date at which
it became a law. Gardner VS.. the Col
lector, Wallace, 504)
The attorney general earnestly insisted
that the priority between the two acts is
to be determined by the dates at which
they passed the two houses of the legis-
lature, and in support of his contention
refers to the case of the Southwark bank
VS.. Commonwealth, (26 Penn, State,
446) L do not understand that case.
There the legislature on the 9th of
March passed an act to reinstate a sec
ton and extend the charter of the
Farmers and Merchants bank. The
thirteenth section of the act regulated
the tax on bank dividends and applied to
the several banks of the State. The bill
was sent to the governor on the same
day. On the 18th of March the legisla-
ture passed another act to provide a
more effectual mode of collecting taxes
in certain counties. The seventh sec
ton of the latter act supplied the thir-
teenth section of the act passed ON the
9th of March and the eighth section ex-
pressly repealed the thirteenth section
of the act of March and declared that
henceforth the said thirteenth section
shall not be deemed as part or portion
of the act of March 8. The latter act
was sent to the governor on the 18th of
March. Both acts were pending before
him at the same time. On the 18th of
the same month he signed the latter act
and so informed the two houses. On the
10th he signed the act of March 6. The
court held that the legislature had the
right to repeal section 13 of the act of
March 8 while the bill was in the hands
of the governor, and by approving the
act of March IA, while the act of March
8 was still in his hands, he vetoed the
thirteenth section of the act as effectual-
ly as If he had returned the bill with his
objections. All the branches of the law
making power, the senate, the house and
the governor, concurred in enacting the
law that revoked the thirteenth section
previously passed. After this was done
the thirteenth section was no part of the
act in the hands of the governor. The
court further held that the governor had
no power to reinstate the abolished sec
ton by afterward signing the bill
While the circumstances of this case are
peculiar, the point really involved was
the power of the legislature to alter or
repeal bill while it was in the hands of
the governor. The case clearly recog-