People ex rel. Tennant v. Parker

Crounse, J. In the few hours given the court for the determination of the grave questions involved in this case, I cannot undertake to review the history of the several proceedings out of which they have arisen. In fact, I choose to avoid any further publication of the disgraceful transactions that have attended the administration of our state government — transactions which have made the character of the state the subject of jeer abroad, and occasioned every good citizen to blush to acknowledge that he is a member of it. Whether the first proclamation was legally issued, and of any validity, I will not at this time, stop to enquire. Upon that point I may express myself hereafter. But as a majority of the court are agreed upon the effect of the second one, I will briefly state my views thereon. Under the theory of our government, the people ai’e sovereign. The exercise of acts of sovereignty are given — 419 — to the several branches of government whose duties and limits are prescribed in the organic law adopted by the people. To the legislature is given the power, and upon it is imposed the duty of making all laws, subject to the constitution. Inasmuch as the people cannot undertake to create legislatures and set them at work at such times as legislation might be proper and necessary, they have directed that such legislature meet every two years, on a day fixed, for purposes of general legislation. But emergencies may arise when it might, for the welfare or safety of the state, become necessary to have legislation at other times than those provided as above. The determination of the question as to when such an occasion has arisen, resides with the people, of course, for whom this legislation is to be made. It is impracticable, and in fact impossible, to collect the sense of the people in any way in time to make the action of the legislature available. They, therefore, have chosen to commit the exercise of this judgment to the governor of the state. In this he stands in the place of the people. Did the people see that they were threatened with invasion, or that any exigency had arisen demanding the convening of the legislature, they might command, and it would be the duty of the legislature to obey. After having commanded, and before such convention, if the exigency had passed away, the people might countermand the order so given, and it would be the duty of the legislature to respect and obey such command. Does any other reasoning obtain where the governor, for this purpose stands in the place of the people? I think not. The governor is constituted the sole judge of the necessity for calling the legislature, and he must, like the people, be the sole judge as to when such necessity has passed away. His judgment is not like a judicial decree, — 420 — based on certain fixed facts upon which the law attaches its judgment. In that case the judgment is final as far as the tribunal pronouncing it is concerned. But the governor’s decision is a political one, exercised for the well-being of the state. He may conceive a- danger to exist which does not exist in fact, or the threatened danger may have passed away. His judgment is, that the facts exist which demand an assembling of the legislature. If he should find that he was mistaken as to the facts, or the emergency had passed away, his judgment is changed. He is none the less the representative of the people for this purpose, and the judge of the necessity of a meeting of the legislature, after he has issued his proclamation, than he was at the time he issued it. His proclamation is no deed or instrument conveying any right to the legislators which when once issued, is irrevocable; neither can I see any ground for assuming that its issuance involves any trick or technicality which should override the broad reason on which it is founded. The proclamation is but a command. This command is based on the judgment of the governor, acting for the people, who assumes that an emergency exists, demanding a meeting of the legislature. If the emergency does not exist, this judgment is erroneoxis, and is changed, and the expression of this change is communicated through the revocation. The several proclamations are but the expressions or announcements of these different conditions of affairs, and are binding on the legislature. The different proclamations may be treated as issued by one and the same person. The court is dealing with the officer, rather than with any individual. The proclamation issued first, being the only warrant under which a legislature could convene, having been revoked and annulled, there exists no authority under which a legis — 421 — lature can be legally assembled at this time. This being so, there can no authority issue from the pretended legislature to hold Mr. Tennant, and he must be released. Lake, J. This case presents at least two important questions for the consideration of the court. They are not only important, but so novel in their character, that ordinary sources of legal information afford us but a 'dim light to direct us in our investigation. So true is this, that even the learned counsel upon both sides, who have argued the case with their customary ability, and who usually fortify their positions with apt adjudged cases, have been compelled to admit their inability to find in the books of reports a single case wherein these precise questions or even those strongly analagous thereto have been determined by the courts. The questions to be considered are, first, was Isaac S. Hascall, as President of the Senate, authorized to issue his proclamation for the convening of the legislature, and second, if he was so authorized, could Secretary James, in the exercise of his functions as acting Governor of the state, revoke such proclamation and thereby prevent the convening of that body in legal session? If the court shall consider either, that, under all the circumstances, the president of the senate had no authority to act in the premises, or being authorized to act, what he did may be annulled, the imprisonment of the relator is illegal and he must be released therefrom. Upon the first proposition my own mind is not clear. I can say, however, when the question was first presented to me I was strongly inclined to the opinion insisted upon for the respondent, that so soon as the governor sets his foot beyond the limits of our state, the officer next in succession therein, may at once assume all the — 422 — authority, and exercise all or any of the duties pertaining to the executive department of government. But when I reflect upon the possible consequences of such a construction of the constitution, upon the disgraceful tricks, strifes and exhibitions, which might be entailed upon the people of the state, of which our present attitude presents a sad and humiliating commentary, I am induced to hesitate and cast about me for a more salutary rule, one which, while it will insure the efficient administration of the affairs of state during a brief temporary absence of the executive, will at the same time protect this department of the government against unnecessary and ill-advised intrusion. The conclusion to which a majority of the court have arrived on the second question will enable us to decide the case before us, without further notice of this one. I shall take occasion hereafter, however, to examine it more at length. ' Admitting, however, that the exigency existed, by the temporary absence of the then acting governor from the state, for the assumption of executive authority by the president of the senate, and that in pursuance of the provisions of the constitution he duly issued his proclamation for the convening of the legislature in extra session, is the issuance thereof of such an act when done, entirely beyond executive control? The constitution provides for the regular sessions of the legislature. These can be held at no other time. But the necessity and propriety of their assembling oftener than at these stated periods, is left by the constitution entirely to executive discretion. This discretion is wisely lodged in the governor of the state, who is presumed to be well advised when an extraordinary occasion has arisen which ’demands prompt legislative action. "With the exercise of this discretion up to 'the time of — 423 — convening the legislature no one can interfere. The whole matter is left entirely to the will of him who for the time being, is invested with the executive authority of the state. But if, for any good and sufficient reason, the executive shall become satisfied that the necessity which induced the call has passed, or that it was unadvisedly made, it is not only his right, but his duty to revoke the same, that the people may be saved the expense which would otherwise be laid upon them. Nor does it matter whether the revocation be by the same person who issued the proclamation or not, so long as he is for the time being in the legitimate exercise of the executive functions of the government. It is not the act of the individual strictly speaking, but of the executive, in which there is, in one sense, no vnterregnum. In this case it is shown that the secretary of state, in the legitimate exercise of the authority invested „in that officer, has declared that the proclamation theretofore issued for the convening of the legislature was ill-advised ; that in fact no extraordinary occasion had arisen rendering it necessary for the legislature to assemble in extra session, and therefore he revoked the same. I am clearly of the opinion that the legislature is not now in legal session, and has no authority to compel the attendance of absent members; that all and every act done at this time, as a legislative body, is without the shadow of authority and absolutely void, and that, therefore, the relator should be released from custody. This conclusion being also concurred in by my brother Crounse, it is so ordered.