LEGISLATIVE DAYS.
The following message from the Governor was received and read by the hand of an Executive Messenger :
To the House of Representatives of the State of Indiana:
The Constitution of the State limits the legislative term to sixty-one days. In counting these days, heretofore, Sundays have been included. I am satisfied, however, from a careful examination of the Constitution, in connection with several usages and principles of law that are well recognized, that the practice has been erroneous, and that sixty-one working day are meant. By common consent in this and other States, Sunday is not considered a legislative day, and it is specially excepted from the three days during which the Governor has time to consider a bill. In analogy to this, Sunday is not considered as a judicial day to be counted in the term of court in any State where the common law prevails.
It will not be denied by any one that the legislative term established by the Constitution, as heretofore construed, is too short for the dispatch of the necessary business of the State, and if, by proper construction, it can be extended for a few day , will be of great importance to the public interest
Accordingly, I have asked the opinion of the four Judges of the Supreme Court upon the questions which they have given to me in writing as follows:
INDIANAPOLIS, March 8,1865.
To His Excellency O. P. Morion, Governor:
Sir, in response to your request for our opinion upon the question whether "the term of sixty-one days") to which the session of the Legislature is limited by the Constitution, includes intervening Sundays, we beg to say that we have given the subject such consideration as time would permit, and that we deem the better opinion to be that business days only are embraced. Various considerations tend so strongly to support this view that if a contrary practice had not heretofore prevailed, we would hardly entertain a doubt upon the subject.
If the Legislature should now be of the opinion above indicated, and should act upon it, of course it, would go far to annul the influence of the former practice of that body as a precedent, and at any rate if the question be deemed a doubtful one, the courts would not, it is well settled, be justified in holding void the action of a co-ordinate department.
This being simply question of public importance which cannot, as we suppose, involve any party considerations, or mere private and personal interests, we have felt no delicacy in giving our view upon it. We have not meant, however, to depart from that rule of silence which we have prescribed to ourselves, as to measures of legislation which may be pending.
- CHAS. A. RAY,
- J. T. ELLIOTT,
- JAS. S. FRAZER,
- R. C. GREGORY.
I have also consulted the President of the Senate, and the Speaker of the House of Representatives, both able and learned lawyers, and find that they concur in the opinion expressed by the Judges of the Supreme Court.
In view of the importance of the subject, and the present condition of the business of the Legislature, I have thought it proper to call your attention to the subject in a special message.
O. P. MORTON, Governor of Indiana.
On the motion of Mr. COFFROTH, (by unanimous consent,) the foregoing message was taken up, and read by the clerk.
Mr. COFFROTH, regarding the communication of such a character as to demand the immediate attention of the House, moved that it be referred to a special committee of five members.
Mr. DUNHAM regarded it as an impudent and impertinent interference on the part of the Executive in the proper business of a co-ordinate branch of the government, and proposed to amend the motion to refer, by substituting an order, that the message be respectfully returned to His Excellency, with the information that this House is abundantly able to interpret the Constitution, and to determine for itself what shall be its action undor that instrument. It was an impudent interference with the legislative authority, the legislative powers and duties of the House of Representatives. It was an attempt at interference by the Executive, such as he undertook to say, was never before heard or read of in the legislation of any State of this Union or in the Congress of the United States. He was quite certain that in the Congress of the United States, made up as it was with the political partizans of Mr. Lincoln, such a message would not be tolerated, for a single page: 372[View Page 372] moment. To receive such a message here would be to give up at once the dignity that belongs to a legislative body. When we come in here and take upon ourselves the oath to support the Constitution, as representatives of the people, what was it but a solemn legal announcement of the right and duty of interpreting that Constitution for ourselves. To receive this message would be to accept the Governor as the Executive of our action. But the terms of the Constitution makes him the Executive of the State--simply the Executive of the edicts of the people of the State made through their representatives in this body. And if there is a single line in that instrument that makes the Governor or the Judges of the Supreme Court to stand for us as interpreters of the Constitution for the direction of our duty, he had never yet been able to comprehend it. The powers of this government are three: the Legislative is first, because it comes directly from the fountain and source of all government--the people. The next is the Judiciary, whose duty it is to interpret nothing but the action of the Legislative power. And then comes the Executive power, which is to execute what the legislative power have passed upon, and that which the Judiciary have declared. Such was the duty of the Governor, and he has no duty beyond that. And he repeated the declaration, that there was neither power in the Constitution nor precedent in legislation for such a communication as this addressed by the Executive to the legislative branch of the government: and there cannot be found one scintilla of authority in the Constitution that gives right or permission to the Governor to come in here with any such address as this to the Representatives of the people of the State, and undertake to tell them what are their legislative rights, powers and duties: And for one, he undertook to say, at the threshhold, that he would resist it--not by physical force--but he would resist it to the utmost of all the political power he possessed. He declared this night, that he would not stand for one single hour under the dictation of His Excellency,neither enquiring after other men's views, nor earing what anybody else might do or say, for he believed that in thus deprecating and denying this attempted interference of the Executive he announced the rights and liberties of the people, and but asserted the dignity of a representative of the people. In doing this, he believed that lie was trying at least to bring back and reassert that sovereign power which was stealing away from the American people, and which must be recovered or free government is gone. There was nothing in which he could engage with more earnestness than in the work of resisting the interventions of the Executive in any matter which lies wholly with the people and their representatives. These were inalienable rights, and he would guard them jealously, and allow not the first symptom of interference: and for one--come weal or woe--he would stand by them and defend them to the utmost of his power.
Mr. KILGORE interposing. How was this message an interference with the Legislative power ?
Mr. DUNHAM. It was an interference simply because the. Constitution never contemplated that the Executive should attempt to interpret the Constitution for us, and define our duty : simply, because each one of us is supposed to have and to exercise the same power of reasoning and common judgment with His Excellency, and the same right to interpret the Constitution. For we are all required to cake the same oath that he has taken : and it is not his right to come in here in the way of interference in our prerogatives. He did not say that this was the exercise of any power, but he characterized it as an interference with the right and the dignity of the House of Representatives.
Mr. SIM (interposing.) Had not the Governor a right to advise with the General Assembly ? There was nothing like dictation in it.
Mr. DUNHAM. It was the right of the Governor to suggest such matter of legislation as his judgment shall approve as conducive of the interests of the people: but this is a matter of conscience of legal interpretation for our legislative action and guidance, not contemplated in the Constitution.
Mr. KILGORE. Did he understand the gentleman to say that the Governor has no right to call the attention of the House to this matter ?
Mr. DUNHAM. The Governor had no right to address the House except to call its attention to matter of legislative action.
Mr. COFFROTH. That was what he supposed the Governor desired in this message. He did not regard it as in any sense a dictation on the part of the Governor ; but it was simply calling our alteration to the fact, that there is a contrariety of views on the question whether Sunday is a legislative day--giving his own views and those of the Supreme Court Judges and others. He did think, on the first blush, and he still thought the ruling was wrong and it was for that purpose--to investigate the matter--that he had moved to refer it. He did not regard the message as in any sense offensive, or in the spirit of dictation.
Mr. MILLER, of Tippecanoe. As it appeared to him, there was nothing in this message either unusual, or inconsistent with the duty of the Executive, nor anything that could be considered otherwise page: 373[View Page 373] than as a suggestion for the public good. He hoped it would be referred.
Mr. REESE moved to refer the message to the Committee on the Judiciary.
Here there was a demand and second of the previous question, and under its force Mr. Reese's motion was rejected.
And then the message was referred to a select committee of five. Whereupon--
The SPEAKER announced the following gentlemen as members of said committee ; viz : Messrs. Coffroth, Church, Newcomb, Buskirk and Miller of Tippecanoe.
Mr. COFFROTH moved to reconsider the vote whereby the night session was ordered ; which was agreed to.
And then the order was rejected.
On motion by Mr. MILLER, of Tippecanoe, the bill S. 168 fixing the times of holding courts in the Third Judicial Circuit was taken up and read the second time.
On motion by Mr. OSBORN the bill S. 173 to enable boards of trustees of incorporated towns to authorize persons to enclose fronts for shade trees and ornamental purposes, was taken, up and read the second time.
And then at 6:10 P. M., the House adjourned till to-morrow morning at 9 'o'clock.
