Hendricks, Secretary of State of Indiana v. State ex rel. Northwest Indiana Crime Commission, Inc. et al., 245 Ind. 43

Arterburn, J. — This is an appeal from an action of mandate filed by the appellees, Northwest Indiana Crime Commission, Inc., et al. v. Charles O. Hendricks, Secretary of State of the State of Indiana. The action was brought to mandate the Secretary of State to print, certify and distribute Senate Enrolled Act No. 339 of the 93rd General Assembly of the State of Indiana as a duly enacted law of the state. The lower court granted the relief asked.

The complaint is based upon the theory that the Governor failed to act upon the bill within three (3) days (Sunday excepted) after it was presented to him, as provided in the Constitution, and it therefore became a law without his signature. The authority for this action is based upon State ex rel. Mayr, Secretary of State v. Marion Circuit Court (1931), 202 Ind. 501, 176 N. E. 626.

The bill in general authorizes a change of prosecuting attorney and the appointment of a special prosecuting attorney upon the proof of bias, prejudice, or voluntary inaction of such official when racketeering, professional gambling, corruption, and high crime is found to exist in any county since the citizens are helpless in their attempts to have an active, good-faith prosecution of such alleged crimes. It is said the bill is modeled somewhat after a New York statute enacted for the purposes of effectively prosecuting syndicated gambling and racketeering in that state.

Although some claim is made that the constitutional right of a prosecuting attorney to act or refuse to act as he personally pleases with immunity in the local prosecution of crime, we are not impressed with such contentions, since there is as much if not greater reason for a change of prosecuting attorney if prejudice exists, as in the case of a circuit judge who is also a constitutional officer. In fact, there is a duty on the court to relieve a prosecuting attorney where he is disqualified by reason of prejudice or hostility towards the state’s interest. State ex rel. Latham v. Spencer C.

C. (1963), 244 Ind. 552, 194 N. E. 2d 606. The Constitution of the State of Indiana provides as follows: “Every bill which shall have passed the General Assembly, shall be presented to the Governor; if he approve, he shall sign it; but if not, he shall return it, with his objections, to the House in which it shall have originated; which House shall enter the objections, at large upon its journals, and proceed to reconsider the bill.

If, after such reconsideration, a majority of all the members elected to that House shall agree to pass the bill, it shall be sent, with the Governor’s objections, to the other House, by which it shall likewise be reconsidered; and, if approved by a majority of all the members elected to that House, it shall be a law.

If any bill shall not be returned by the Governor within three days, Sundays excepted, after it shall have been presented to him, it shall be a law, without his signature, unless the general adjournment shall prevent its return; in which case it shall be a law, unless the Governor, within five days next after such adjournment, shall file such bill, with his objections thereto, in the office of Secretary of State; tvho shall lay the same before the General Assembly at its next session, in like manner as if it had been returned by the Governor.

But no bill shall be presented to the Governor, within two days next previous to the final adjournment of the General Assembly.” (Our italics) Ind. Const. Art. 5, §14 (1851). The factual background to which the application of this constitutional amendment is pertinent is as follows: The 93rd General Assembly passed Senate Enrolled Act No. 339 and the same was presented to the Governor of this State on March 9, 1963. This was Saturday. The General Assembly adjourned generally on March 11th. The Governor immediately thereafter called a special session of the legislature to convene the next day, March 12, 1963.

The appellees contend that the Governor had three days, not including Sunday, in which to sign the bill (Senate Enrolled Act No. 339), or return it, with his objections, after it was presented to him on March 9, 1963; and that pursuant to the express provisions of Art. 5, §14 of the Indiana Constitution, since the Governor was not prevented from returning it by reason of the special session, it became a law without his signature. All the parties hereto have made reference to, cited and reviewed the constitutional history and legislative journals in their briefs and arguments.

It seems to us little, if any, light is thrown upon the question here or meaning of this

section of the Constitution from that source. Likewise, a search of cases from various jurisdictions is not helpful in but very few instances. We find none of them dealing with a special session immediately following a regular session where the constitutional provision is worded exactly as that in Indiana. However, other states have somewhat similar constitutional provisions to that of Indiana, particularly Kentucky and New York.

Article I, §7 (2) of the United States Constitution reads as follows: “Every bill which shall have passed the house of representatives and the senate, shall, before it become a law, be presented to the President of the United States; if he approve he shall sign it, but if not he shall return it, with his objections to that house in which it shall have originated, who shall enter the objections at large on their journal, and proceed to reconsider it.

If after such reconsideration two-thirds of that house shall agree to pass the bill, it shall be sent together with the objections, to the other house, by which it shall likewise be considered, and if approved by two-thirds of that house, it shall become a law. But in all such cases the vote of both houses shall be determined by yeas and nays, and the names of the persons voting for and against any bill shall be entered on the journal of each house respectively.

If any bill shall not be returned by the President 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 congress, by their adjournment, prevent its return, in which case, it shall not be a law.” In Okanogan, etc., Indian Tribes v. United States (1929), 279 U. S. 655, 49 S. Ct. 463, 73 L.

Ed. 894, the United States Supreme Court held a bill passed by congress does not become a law when the President is prevented from returning it to the house from which it originated, by an adjournment terminating the session before the expiration of the ten day calendar period. This case gives quite a considerable discussion of the matter and turns purely, in our opinion, upon the fact of whether or not the congress is in session at the time the ten day period has run and whether or not the President, as a result of congress not being in session, is “prevented” from thus returning the bill to the congress.

The court stated: “We think that under the constitutional provision the determinative question in reference to an ‘adjournment’ is not whether it is a final adjournment of Congress or an interim adjournment, such as an adjournment of the first session, but whether it is one that ‘prevents’ the President from returning the bill to the House in which it originated within the time allowed.

It is clear, and, as we understand, is not questioned, that since the President may return a bill at any time within the allotted period, he is prevented from returning it, within the meaning of the constitutional provision, if by reason of the adjournment it is impossible for him to return it to the House in which it originated on the last day of that period.” (Our italics) Okanogan, etc., Indian Tribes v. United States, supra, at 680.

The United States Constitution refers only to an “adjournment” (temporary or sine die), while the Indiana Constitution refers specifically to a “general adjournment” (or a sine die adjournment). It follows, therefore, that an interim or temporary adjournment could prevent the return of a bill by the President under the United States Constitution, while only a general adjournment (not a temporary or interim adjournment) must concur under the Indiana Constitution with a preventing factor to avoid the three day period.

In other words, interim or temporary adjournments of the General Assembly of Indiana during a session do not affect the three day period (Sundays excepted) within which the Governor must return a bill, if he desires to veto the same. For cases where state constitutions use the word “adjournment” only, as distinguished from general or sine die adjournment, as in the Indiana Constitution, See: State ex rel. Sullivan v. Dammann (1936), 221 Wis. 551, 267 N. W. 433; Wood v. State Administrative Board (1931), 255 Mich. 220, 238 N. W. 16; In Re

an Act Concerning Public Utilities (1912), 83 N. J. L. 303, 84 Atl. 706; See Generally, 64 A. L. R. 1450. It was the same 93rd General Assembly which met in special session following the regular session. The statute provided for the carry-over of all unfinished business from the regular session (Burns’ §34-203). The Governor’s proclamation calling the special session referred to it as the 93rd General Assembly.

The United States Supreme Court also held that the bill must be returned to the same “house” in which it originated, just as the Indiana Constitution so provides, namely: “ ... he shall return it, with his objections to the house in which it shall have originated. ...” The appellant contends that Art. 5, §14 of the Indiana Constitution means that a general adjournment prevents, in all cases, the return of a bill to the house from which it originated, and the convening of a special session immediately following a general session of the General Assembly (such as occurred in this case before the three day period had expired) nevertheless extends the period to five days within which the Governor, if he desires to exercise a veto, is required to return the bill with his objections, to the office of the Secretary of State, rather than to the General Assembly then in special session.

The Secretary of State is then required to send the bill to the house of its origin in the next session of the General Assembly, which would here be the existing special session. If we accept such an

interpretation, then the drafters of the Constitution provided a rather circuitous method of doing

an act when the General Assembly is in session at the time, where it could have been done directly by sending the bill to the house in which it originated, rather than through the office of the Secretary of State. The appellant would have Art. 5, §14 of the Indiana Constitution interpreted so as to eliminate the word “prevent”. That is to say, appellant would have that portion of the

section which reads: “unless the general adjournment shall prevent its return” to read simply: “unless there is a general adjournment”. One of the fundamental rules of constitutional construction is that no word shall be assumed to be mere surplusage. It is an essential corrollary that every word must be given a meaning if possible. In Chadwick, Treasurer v. City of Crawfordsville (1940), 216 Ind. 399, 24 N. E. 2d 937, 129 A. L. R. 469, we said: “The authorities agree that the words used in the Constitution must be presumed to have been carefully chosen so that each word would have a meaning.

It has been said that each word must be thought of as having been deliberately selected and intentionally placed as though it had been hammered into the instrument. Each word therefore must be given effect....” We may assume that the drafters of the Constitution of 1851 meant what they said. If they had intended to mean that in all cases a general adjournment of the General Assembly shall extend the time to five days within which the Governor may consider a bill and determine to veto it, it would have accordingly drafted the

section to say exactly that. The drafters, however, qualified the general adjournment with the use of the word “prevent”, thereby raising the implication that not all “general adjournments” would automatically extend the period from 3 to 5 days within which the Governor could consider a bill submitted to him, but rather assuming thereby that there would or could be situations where a general adjournment occurs, and yet the Governor is not prevented from returning the bill within the three day period.

We have such a situation before us now in which the special session immediately following the general adjournment did not prevent the return of the bill within the three day period fixed. The word “prevent” in the constitutional

section considered must be given meaning, and be given a reasonable meaning. The Governor was not prevented from returning the bill to the house of its origin by the general adjournment of the General Assembly, since it was in special session at the end of the three day period and the bill could have been returned “to the house in which it shall have originated.” The veto power is a restriction upon the legislative branch of the government and is in derogation of the general plan of government for the separation of powers. This power, therefore, must be strictly construed. 82 C. J. S., Statutes, §52; Wood v.

State Administrative Board (1931), 255 Mich. 220, 238 N. W. 16. Senate Enrolled bill 339 was not vetoed by the Governor in accordance with the constitution of this state; hence it became a law without his signature. Judgment affirmed. The

interpretation of this

section of the Constitution being a matter of public importance affecting other legislation, the clerk of this court is directed to certify to the court below immediately this opinion. Landis, C. J., concurs. Achor, J., concurs with opinion. Myers, J., dissents with opinion. Jackson, J., concurs in dissenting opinion. . From the briefs and in argument we are reminded that there are other bills whose validity as a statute turn upon the same points by reason of the special session immediately following the regular session of 1963: Senate Enrolled Bill No. 160 (Reapportionment bill), No. 132 (Kerr-Mills bill).

No. 1127 (Repealing requirements with reference to bank examiner reports 'to Board of Directors). . Reference is made to the fact that the Senate Journal shows that Senate Enrolled Bill 160 was returned to the Secretary of State and then to the Senate for reconsideration upon the theory that the Governor vetoed the same, and that by one vote the Governor’s action had been sustained. This one example can not be accepted as a custom or practice, particularly in view of the fact that the three other bills similarly involved in the question here were never resubmitted to the Senate, .

The Hawaiian case [Haw’n Airlines v. Pub. Ut. Com. T.H. (1959), 43 Haw. 216] turns upon this very point. The first paragraph of

Section 51 of the organic act plainly says that a bill must be signed or vetoed by the Governor within ten days after it is delivered to him “unless the legislature adjourns sine die prior to the expiration of such ten days.” For that reason a second paragraph using somewhat similar language to that in the Indiana Constitution was interpreted in the light of the above statement. The phraseology therefore of the entire

section was not similar to that in the Indiana Constitution. The second reason why that case does not support the appellants here is that the Hawaiian court concluded that upon a sine die adjournment, unfinished business of the regular

section was not transferred to the calendar of the succeeding special session. In Indiana the contrary exists. It was the same 93rd General Assembly that met in special session. This is also supported by specific legislation to that effect. Burns’ §34-203. (1949 Repl.).