Harpending v. Haight. 22, upon which to return the bill. But the house of representatives was not in session on that day, because on the preceding Saturday, August 20, both houses adjourned to Tuesday, August 23. The court say, upon this point, that it would, in their opinion, be suffcient for the governor to return the bill to the speaker, if within the five days; and they add, that "the house could not prevent the return of a bill by adjourning over any one of the five days, even though it should be the last one of the five, because the bill might, in that case, be returned, within the time limited, to the speaker, or to the clerk, or some other proper officer." 45 N. H. 610. Having reached the conclusion that the facts do not show that the governor returned the bill to the senate within the meaning of the constitution, we proceed to inquire whether "the legislature, by adjournment," prevented such return; for, if it did, the bill could not become a law by reason of the failure of the governor to return it within the ten days. We judicially know, and, if we did not, we are distinctly informed by the agreed statement of facts, that the late session commenced on Monday, the 6th day of December, 1869, and terminated on the 4th day of April, 1870. The adjournment of the 4th day of April was, in our opinion, the only adjournment which could have prevented the executive from making the required return within the prescribed time. This results necessarily from the views we have expressed on the other proposition, in which we hold that the executive may returr a bill to the senate, though it be not, at the moment of the return, in actual session. If it has adjourned for the day, or for three days, it still has an organized existence as a legislative body, with its president, secretary and other officers, to whom, under such circumstances, a substitutional delivery of the bill and message might be made, and whose official duty it would be to place the bill and message before the senate at as early a time as might be thereafter. Such a return, as we have said, would be the only one permitted by the circumstances, and when the bill should afterward actually reach the senate, it could then proceed to reconsider it, as required by the constitution in that respect. But when a final adjournment of the legislature has occurred, there is an end to the organized existence of the senate. It has no longer officers to represent it for any purpose; nor could the bill, in the nature of things, ever be brought to its attention, for it would VOL. II.-56 Harpending v. Haight. not be in session thereafter, nor be reconsidered by it, which is the purpose to be attained, for it would be itself no longer existing. In the New Hampshire case, supra, the court say that "upon this point there can be no doubt. The adjournment referred to in the provision of the constitution is not, we think, the ordinary recess or adjournment from time to time during the continuance of the session, but the final adjournment at the close of the session. In fact, this is the only adjournment, we think, which can prevent a return of a bill within the time limited." The seventeenth section of the constitution of California, relating to the adjournment of the legislature, which will prevent the return of a bill by the governor, will be found to be substantially the same as the seventh section of the first article of the federal constitution, which regulates the exercise of the veto power of the president over bills passing the senate and house of representatives of the United States. Its language upon this point is as follows: "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." It seems to have been the opinion of the late Mr. Justice STORY (Com. on Const., § 891), that the only adjournment which could prevent the federal executive from returning a bill within the time prescribed must be an adjournment amounting to "a termination of the session." In the New Hampshire case, as has been seen, the legislature did adjourn; but the court held that a mere temporary adjournment, even of both houses, did not prevent a return of the bill then in question. In the case before us, however, it does not appear that the legislature — both houses — adjourned even temporarily. We do not think that the temporary adjournment of the senate alone from four o'clock P. M. of one day to the usual hour of meeting on the morning of the next day, drew after it the grave constitutional consequence-attributable, in our opinion, to no other adjournment than the final adjournment of the legislature itself at the end of the session of preventing the return of a bill by the executive with his objections to its passage. For the reasons given, and many others that readily suggest them. eives, we think that the adjournment of the senate on the 31st day Harpending v. Haight. of March was not an adjournment by which the return of the bill was prevented. The senate bill in question, therefore, became a law, and within the contemplation of the act of March 1, 1852, the second section of which is as follows: "Section 2. Every bill which has passed both houses of the legislature, and shall not be returned by the governor within ten days, having thereby become a law, shall be authenticated by the governor causing the fact to be certified thereon by the secretary of state in the following form: This bill having remained with the governor ten days (Sundays excepted), and the senate and assembly being in session, it has become a law, this day of, A. D.'; which certificate shall be signed by the secretary of state and deposited with the laws in his office." And this bill should receive the prescribed authentication and be deposited with the other laws of the state. But the governor refused to permit either the authentication or deposit, and retains the bill in his possession in the condition in which he received it from the enrolling committee of the senate. And here we reach the only remaining question for our consideration in the case. Can the performance of this duty be enforced through the instru mentality of the writ of mandamus? In the voluntary submission which was made of the cause, no such question was presented for determination. By the stipulation, as we have seen, it was agreed that if the court are of the opinion that said bill did become a law, a peremptory mandamus may issue commanding the respondent to cause said bill to be authenticated, as provided by section 2 of the act of May 1, 1852, already cited. Since then, however, the respondent has filed an exception to the jurisdiction of the court, because "the functions of the executive, in conjunction with the legislature as part of the law-making power, are not the subject of mandamus." [We shall consider this objection in the form here stated, without, however, being understood as conceding that any executive function is "part of the law-making power."] The attorney-general, too, in an able argument, brought to our attention since the submission of the cause, states the proposition in a more imposing form, and inquires: Can it be successfully contended that the chief executive of a state a correlative branch of the state government, equal in dignity with the court can Harpending v. Haight. commanded to do an act, which, in his executive opinion, may not be right?" Undoubtedly, if the mere authentication of the bill, pursuant to the requirement of the statute, be a political power, such as the authority to grant reprieves and pardons, to convene the legislature in extraordinary session, to appoint to office, to accord or withhold the executive approval to legislative bills, or the like; or if there be any mere discretion in the governor to withhold such authentication, when the statutory facts have occurred, it does not belong to the judicial department to interfere with its exercise in any manner. The executive responsibility for the proper discharge of such trusts is directly to the immediate political representatives of the people, and ultimately to the people themselves. But we think it would be difficult to show that the case at bar is one of that character. The functions of both the legislature in making the law, and of the executive in the exercise of the qualified veto power conferred upon him, must have been completely exhausted before the duty of authentication and deposit in the secretary of state's office can be asserted to have begun. It is only because the bill has already become a law that the statute requires its authentication at all. It will be seen that the power and the duty to direct the authentication are inseparable, and that where the one exists there is no discretion to decline the performance of the other. The power to withhold the possession of a bill, which has passed both houses of the legislature in the proper form of legislative proceeding, and has thereby become a law under the operation of the constitution, either with or without the execu tive signature, is one which is unknown to our people, and has no place in the system of government prevailing here. It is true that, in the earlier days of parliament, the sovereign is said to have exercised the power of altering and amending bills at pleasure, before according the royal approval, but at that time the asserted authority of the crown was almost absolute, and certainly under but little restraint at the hands of the representatives of the commons, the habitual language of whose addresses to the throne was: "Your poor commons beg and pray, for God's sake, and as an act of charity," etc. And it is also true that, at a much later period, the English princes of the house of Stuart, especially the duke of York, when upon the throne, asserted, as part of the royal prerogative, the power to dispense with the operation of the statutes of the Harpending v. Haight. realm in such special cases, and in regard to such particular individuals, as they saw fit. But even that claim of authority was utterly abrogated at the accession of the prince of Orange, and since the beginning of his reign no English sovereign has asserted it, or, indeed, even in any manner withheld the royal assent from the pas sage of any act of parliament whatever. Under our system of government, based as it is upon a written constitution, defining distinctly the measure of power to be exercised by the executive department, the authority to dispense with a statute, either in a particular instance or altogether, by withholding it from the depository of the law in the proper office, has not been conferred. The statute of 1852, as we have seen, declares in totidem verbis, that a legislative bill, situated as this one is, "shall be authenticated by the governor," etc. Whether, then, we regard the mere nature of the act to be done or the mandatory language in which its performance is enjoined, it is impossible to conceive of any case in which there could be less discretion left to the officer whose duty is thus declared by statute. The authentication and deposit of this law in the office of the secretary of state is emphatically "an act which the law specially enjoins as a duty resulting from an office, trust or station," withir the letter and intent of the statute regulating the writ of mandamus in this state. Statutes 1851, p. 124, § 467. And it is settled by the uniform adjudications of this court that in such a case the writ will be issued against the governor the state to enforce the performance of the act required. McCauley v. Brooks, 16 Cal. 11; Middleton v. Low, 30 id. 596; Stuart v. Haight, January term, 1870. These authorities are supported by numerous cases adjudicated in other courts. In the case of Marbury v. Madison, 1 Cranch. 137, it was declared by the supreme court of the United States that "it is not by the office of the person to whom the writ is directed, but the nature of the thing to be done, that the propriety or impropriety of issuing a mandamus is determined." In the case of Amos Kendall, postmaster-general of the United States, plaintiff in error, v. The United States on the relation of Stokes, 12 Pet. 594, a writ of mandamus was sought against the postmaster. general of the United States, and its issuance was resisted by Mr. Attorney-General Butler. On the argument the attorney-general conceded the constitutional power of congress to invest the proper |