Opinion of Justices to the House of Representatives

The Justices of the Supreme Judicial Court, having considered the questions proposed in the order of the Honorable House of Representatives of the thirty-first day of May last, respectfully submit the following opinion:

The question whether the legislative or judicial department of the government has the power to investigate the regularity of *597 the action of the executive department, and, if such power exists, what are its limitations, and the question whether, in ascertaining what are the laws of the Commonwealth, we can receive paroi testimony or look to any other source of proof except the public records, are questions of grave importance, which it is not necessary for us now to consider, as the answer to them would not change the conclusion which we have reached. Without expressing any opinion upon them, directly or by implication, but assuming that the facts presented by the order of the House now appear of record, and are properly before us for consideration, we proceed to give our opinion upon the questions proposed by the House.

As we understand the order, the essential facts stated in it are, that the “ Act to incorporate the Union Safe Deposit Vaults ” was duly passed by both branches of the Legislature, and was laid before the Governor for his revisal on the twenty-first day of February last; that he, upon such revision, having objections to the passing of the bill, stated his objections in the form of a message to the House; that on the twenty-third day of February, at the executive chamber, he signed the message and delivered it to the private secretary of the Governor, with orders to have the message delivered to the House; that on the evening of that day he left the Commonwealth, and was absent therefrom until the second day of March; that on the twenty-sixth day of February the executive clerk, acting under directions from the private secretary, delivered the bill and the message to the House, the message being dated as of that day.

The power of the Governor to return a bill with his objections, and thus prevent its becoming a law, is as sacred and as strongly guaranteed and guarded by the Constitution as is the power of the Legislature to enact it.

The only limitations upon this power are found in the provision of the Constitution, that it must be exercised within five days after the bill is laid before him for his revisal, and in the provision giving the two branches of the Legislature the power to pass a bill, notwithstanding his objections, by a vote of two thirds of the members present.

The Constitution provides that “ Ho bill or resolve of the Senate or House of Representatives shall become a law, and have *598 force as such, until it shall have been laid before the Governor for his revisal; and if he, upon such revision, approve thereof, he shall signify his approbation by signing the same. But if he have any objection to the passing of such bill or resolve, he shall return the same, together with his objections thereto, in writing, to the Senate or House of Representatives, in whichsoever the same shall have originated; who shall enter the objections sent down by the Governor, at large, on their records, and proceed to reconsider the said bill or resolve. But if, after such reconsideration, two thirds of the said Senate or House of Representatives shall, notwithstanding the said objections, agree to pass the same, it shall, together with the objections, be sent to the other branch of the Legislature, where it shall also be reconsidered, and if approved by two thirds of the members present, shall have the force of a law: but, in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the persons voting for, or against, the said bill or resolve, shall be entered upon the public records of the Commonwealth.

“ And in order to prevent unnecessary delays, if any bill or resolve shall not be returned by the Governor within five days after it shall have been presented, the same shall have the force of a law.” *

It cannot be contended that the provision that the Governor shall return the bill or resolve to the branch in which it originated, contemplates that he shall personally return the same; it means that he shall cause it to be returned, or “ sent down.”

There are thus three methods by which a bill, after it has been passed by a majority of both branches of the Legislature, can become a law: by the approval of the Governor, evidenced by his signature thereto; by his retaining the bill without approval or disapproval for more than five days after it is presented to him; or by its passage by both branches, if he returns it with his objections, by a vote of two thirds of the members present. In no other way can it constitutionally become and have the force of a law. The act to incorporate the Union Safe Deposit Vaults has not become a law in the first method, as the *599 Governor has not signed it. The question is, Has it become a law by his failure to return it, with his objections, within five days after it was laid before him ?

We do not discuss the question whether the absence of the Governor from the Commonwealth, of itself, and without any other act, devolving the duties of the office upon the Lieutenant-Governor, suspends the powers and functions of the Governor. For, if it be so, the departure of the Governor from the Commonwealth would not necessarily operate to revoke or annul lawful orders previously issued by him. Upon the facts presented to us, the Governor prepared and signed his message, and delivered it to the private secretary, with orders to have it delivered to the House, at a time when he was unquestionably in the rightful exercise of all his powers and functions.

This order was never disavowed or revoked, either by him or by the Lieutenant-Governor acting in his place. The executive clerk, in carrying the bill and message to the House, did so by virtue of the continuing force of a lawful order. The Governor has done no official act while out of the Commonwealth. His lawful act done here, never disavowed' or revoked, has accomplished its purpose of sending down to the House the bill and his objections within the prescribed time.

The view that the acts of the private secretary and executive clerk are to be treated as a nullity, is refined and technical rather than sound. It seeks by construction to contradict the plain fact that the Governor has caused the bill, with his objections, to be returned to the House. His delivery of the message to the private secretary, who is an officer provided for by statute, and the proper organ of communication with the Legislature, with directions to have it sent down, was the first step in its transmission to the House. There is no reason in the nature of things why his temporary absence should revoke the authority to the secretary, and prevent the completion of an act aleady begun. There is no provision of the Constitution which by its necessary construction leads to this result. It is possible that, under the provision that, when the Governor’s chair is vacant by reason of his absence, the Lieutenant-Governor shall perform the duties and exercise the powers of Governor, the Lieutenant-Governor might have countermanded the order to *600 the secretary; but he did not do so; he tacitly acquiesced in it, and thus permitted the act of returning the message to take effect as a valid act of the executive department.

Boston, June 5, 1883.

It seems to us, upon the facts stated in the order of the House, that the Governor has done all that is required by the Constitution to prevent this bill from becoming a law, unless it is passed over his objections. He has, upon revision, stated, in writing, his objections, and has, within five days after the bill was laid before him, caused the bill and his objections thereto to be returned to the House. To hold that his action is invalid, because the merely ministerial act of carrying it from the executive chamber to the House was done during his temporary absence from the Commonwealth, would be to violate the spirit of the Constitution by an unnecessary and technical construction of its letter.

We attach no importance to the written date. If the message was signed by the Governor on the twenty-third day of February, and then directed by him to be sent to the House, the fact that the date of the twenty-sixth of February was written upon it does not invalidate it.

We are therefore of opinion, that the act to incorporate the Union Safe Deposit Vaults has not become, and is not, a law of this Commonwealth.

Marcus Morton.

Walbridge A. Field.

Charles Devens.

William Allen.

Charles Allen.

Waldo Colburn.

Oliver Wendell Holmes, Jr.

Const. Mass. c. 1, § 1, art. 2.