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the Justices, 99 Mass. 636, in reply to an inquiry of the House of Representatives as to whether a bill transmitted by the Senate to the Secretary of the Commonwealth during a temporary absence of the Governor from the Commonwealth was properly "laid before" the Governor prior to his return, the court said:
As the duty of revisal by the Governor is a personal duty, with which he alone is intrusted when his chair is not vacant, it is necessary that the bill should be laid before him personally. A bill is not laid before him or presented to him, within the meaning and intent of these provisions, by being sent from the Senate to the Secretary of the Commonwealth. The Constitution makes the Secretary an independent officer, and prescribes his duties; and his possession of a bill sent by the Senate to be presented to the Governor is not the possession of the Governor.
A bill must be laid before the Governor, or the person who, for the time being, is clothed with the powers of Governor under the Constitution, for his revision. The individual whose duty it is to sign the bill is entitled to have it before him, that he may have the opportunity to sign it or return it with his objections thereto to the branch of the Legislature in which it originated. This bill does not appear to have been so presented to any one, except by the statement that it was returned unsigned on the 19th, with the Governor's objections.
This opinion is cited with approval in Farwell v. Boston, 192 Mass. 15, 19. In the latter case the then charter of the city of Boston (St. 1854, c. 448, § 47) required an ordinance, order, resolution or vote to be presented to the mayor, and provided that if such ordinance, order, resolution or vote "shall not be returned by the mayor within ten days after it shall have been presented the same shall be in force;" and it was held that leaving a vote with a clerk in the mayor's office, in the absence of the mayor, was not a presentation to that officer within the meaning of the provision above quoted.
Beyond holding, in Opinion of the Justices, 135 Mass. 594, that the Governor is not required to deliver a bill or resolve in person, the courts of this Commonwealth do not appear to have defined what constitutes returning a bill or resolve to the branch of the Legislature in which it originated. In that opinion it is said that the delivery by the Governor "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." In the case of Harpending v. Haight, 39 Cal. 189, however, the meaning of the word in a provision of the constitution of California that "if any bill shall not be returned within ten days after it shall have been presented to him (the governor) . . . .the same shall be a law, in like manner as if he had signed it, unless the Legislature, by adjournment, prevent such return," was discussed at great length. It there appeared that on the last day of the prescribed period the Governor, by his messenger, sent to the Senate a bill which he had declined to sign, with his objections thereto in writing. Upon arriving at the Senate chamber, however, the messenger discovered that the Senate had adjourned until the following morning, and immediately returned both the bill and the message to the Governor without attempting to deliver them to the Senate or to deposit them with any officer of the Senate or with any other person for its use, and they were thereafter retained by the Governor. After referring to the constitutional requirement that a bill must, before becoming a law, be "presented to the Governor," the court says, at page 199:
And so, upon the other hand, when we come to consider the corresponding duty of the Executive to "return" the bill to the Senate in this case, we know by attending to the results to be brought about by such "return" that it must be a step taken by which his own time for deliberation is ended and that for the deliberation of the Senate is begun; that the bill itself must be put beyond the Executive possession; that it must be placed into the possession, actual or potential, of the Senate itself; and that, as part of this return, the Executive objections to the passage of the bill must be stated.
And again, at page 203:
It was the duty of the messenger to communicate to the Senate the message which he bore from the Executive on that occasion. This was to be done in the most direct manner that circumstances would permit.
It was impossible for him to immediately announce it to the Senate, for that body was not in session. It had a right to be in recess, if it desired so to be, and it was not in the power of the Executive or his messenger to recall it to its sittings. But its right to be in recess was no greater or higher than was the right of the Executive to return the bill in question for its reconsideration; nor is there any reason why the free exercise of these admitted rights upon the part of the Senate and Governor, respectively, should bring them into collision. The Senate has the unqualified, constitutional power to adjourn for three consecutive days. (Art. IV., Sec. 15, Constitution.) It must often happen that these three days will include the last day allowed the Executive for the exercise of the veto power against the passage of a particular Senate bill.
Now, if the mere fact of the recess of the Senate, thus constitutionally taken, does operate to defeat, in a measure, the exercise of the veto power conferred on the Executive by the Constitution, then we have the strange spectacle of an irreconcilable conflict between the several clauses of that instrument itself, by which the Senate, by the mere exercise of its own admitted constitutional authority to adjourn, violates the equally clear constitutional right of the Executive to have it kept in session.
We are of opinion that the adjournment of the Senate on March 31 did not curtail the veto power of the Executive over the bill in question, nor should it even have embarrassed him in its exercise. The return should have been made in such manner as the circumstances would permit; it should, at all events, have left the bill and message beyond the Executive control, and, if need be, in the immediate custody of some proper person who would be likely to deliver it to the Senate at the first opportunity. The best return that the circumstances would admit, would, in our judgment, be a proper return. The maxim lex non cogit ad impossibilia would be applicable to such a condition of affairs. We know of no other rule, either, upon which the clear right of the Governor to make the return to the Senate can be reconciled with the equally clear right of the Senate to be in recess at the time.
If the requirement of the Constitution that, before becoming a law a bill or resolve must be laid before the Governor for his revisal, can be met only by laying such bill or resolve before him personally, it would seem that the corresponding duty devolving upon the Governor, if he has objection, to return such bill or resolve within five days to the branch of the Legislature in which it originated, should be performed with sufficient formality to insure that the return shall be made to some proper officer of the Senate or House of Representatives, as the case
may be, if the body to which the bill or resolve and the objections are sent down is not in session. See Opinion of the Justices, 45 N. H. 607, 610. Or at least to "the immediate custody of some proper person who would be likely to deliver it . . at the first opportunity." See Harpending v. Haight, supra, p. 204.
In the case here under consideration, if a decision upon this point were required by the inquiry submitted to me, I should be inclined to accept the principles laid down in the cases cited, and to hold that upon the facts before me the bills and the resolve transmitted to you by the clerk of the House of Representatives were not returned to that body before midnight on May 27, and therefore were not returned within the five days allowed therefor by the Constitution.
I am of opinion, however, that I am not required to pass upon this question. The bills and the resolve to which your inquiry is directed were transmitted to you by the clerk of the House of Representatives, and are in your possession and custody as the recording officer of the Commonwealth and the custodian of its records; and you are officially advised that the House of Representatives, in which they originated and to which they should have been returned by the Executive, has declined to receive them, upon the ground that they were not seasonably returned to it. Under these circumstances it is not the duty of the Secretary to determine whether or not the bills and the resolve in question were in fact returned, or whether or not the action of the House was warranted in the premises. He should be guided by the official record of the facts, and receive and record the several bills and the resolve among the laws of the current year, leaving the question of their validity to be determined by the proper tribunal.
Under the provisions of R. L., c. 21, § 8, that "each county treasurer shall collect, receive and safely keep all money belonging to the county, and pay out the same in accordance with law," it is the duty of a county treasurer to ascertain whether or not a payment which he is called upon to make, by an order or bill duly approved by the county commissioners, may be made by him according to law, and he is therefore required to satisfy himself that the expense for which payment is to be made was legally incurred in the first instance.
In a letter dated May 13 you state that certain payments by To the county treasurers, which are "irregular by reason of there being of County no legal authority for their payment," have come to your at-1912 tention, and that with reference to such payments "the claim made by certain treasurers is that their only liability is under chapter 21, sections 12 and 17 of the Revised Laws, and that whatever bill comes to them, approved by the commissioners, is for them to pay, unquestioned," and you desire my opinion "as to whether the treasurer is responsible for all improper payments made by him, or, if his responsibility is limited by law, just what that limitation is."
The duty of a county treasurer as defined by R. L., c. 21, § 8, is as follows:
Each county treasurer shall collect, receive and safely keep all money belonging to the county, and pay out the same in accordance with law; but he shall not pay money to the county commissioners or associate commissioners to be disbursed by them in behalf of the county.
Section 9 provides that
No payments, except of expenses in criminal prosecutions, of expenses of the courts, of the compensation or salaries of county officers established by law, of outstanding notes or bonds and of interest thereon, shall be made by a treasurer except upon orders drawn and signed by a majority of the county commissioners, certified by their clerk and accompanied, except in the county of Suffolk, by the original bills, vouchers or evidences of county indebtedness for which payment is ordered, stating in detail