Southwark Bank v. Commonwealth , 26 Pa. 446 ( 1856 )

The opinion of the court was delivered by

Lewis, C. J.

This is a writ of error to the decision of the Common Pleas, upon an appeal from the settlement by the auditor-general, charging certain taxes on dividends. The question is whether the Act of 15th March, 1849, or that of 16th of the same month, furnishes the rule of decision in ascertaining the amount of taxes to .be charged against the bank. The general rule is conceded to be that where two statutes contain repugnant provisions, the one last signed by the governor is a repeal of one previously signed. But this is so merely because it is presumed to be so intended by the law-making power. Where the intention is otherwise, and that intention is manifest from the face of either enactment, the plain meaning of the legislative power, thus manifested, is the paramount rule of construction. It is no part of the duty of the jm diciary to resort to technical subtleties to defeat the obvious purposes of the legislative power in a matter over which that power has a constitutional right to control. The circumstances of this case are somewhat peculiar., On the 9th March, 1849, a bill passed both houses of the legislature, entitled An Act to re-instate the capital and extend the charter of the Farmers’ and Mechanics’ Bank, of Philadelphia. By the 13th section of this act the banks of the Commonwealth were subjected to a tax on dividends of 15 per cent, in all -cases where these dividends exceeded twelve per cent. This bill was in the hands of the governor when an act passed both branches of the legislature entitled “ An Act to provide a more effectual and economical mode of collecting state and county taxes in the counties of “Chester, Franklin, and Adams, for increasing and regulating the tax on dividends of banks and savings institutions,”' &c.- By the 7th' section of the last-mentioned act, the tax on bank dividends was increased to 20 per cent; where the dividends exceeded 12 and did not exceed 15 per cent. And by the 8th section it was declared “ that the 13th section of An Act entitled An Act to reinstate the capital and extend the charter of the Farmers’ and Mechanics’ Bank of Philadelphia, passed by the legislature in March, A. d. 1849, be and the same is hereby repealed; and that henceforth said section, with the proviso thereto, shall not be deemed and taken as a part or portion of said act.” The intention of the legislature is too plain to admit of a doubt. That they intended to strike out the 17th section of the bill then in the hands of the governor is conclusively shown by the description of the bill, the number of the section, and the statement of the fact that it had passed the legislature in March, 1849, without stating that it had become a law or that it had been signed by the governor. No other bill or section could answer the description here given. To doubt the object of the legislature would be to disregard the most conclusive evidence. With that intention plainly manifest on the face of the second bill passed by the legislature, the governor approved and signed it, and it became a law, on the day he did so, which was the 15th March, 1849. But it' is said that the legislative, power cannot nullify or revoke a bill until it has gone through all the forms necessary to give it the effect of a law. There is neither principle, convenience, nor authority to support this position. We may concede, without however deciding the point, that the two Houses could not withdraw a bill from the hands of the governor without his consent. But here he did consent by affixing his signature to the act which withdrew the 17th section from his further consideration. By so doing, he vetoed it as effectually as if he had sent it to the house in which it originated, with his objections. The veto was more effective because it was done with the assent of both houses, in such form as effectually prevented either department from re-enacting it without the consent of the other. The power to repeal a law involves the power to abrogate a bill in its progress before it becomes a law. The greater power includes the lesser: Jamison v. Jamison, 3 Whart. 457. This case depends on the question of power. It is not governed by the rules of practice, which either house may adopt, suspend, or abrogate at pleasure. All the branches of the law-making power, the Senate, the House of Representatives, and the Governor, concurred in enacting the law that revoked and annulled the 13th section of the act previously passed by both houses; and expressly directed that it should “ not be deemed and taken as a part of said act.” After this was done, the 13th section was no part of the act in the hands of the governor. It is not material that they described it as an “ act” instead of calling it a “ bill.” A bill is the draft or form of an act presented to the legislature, but not enacted. An “act” is the appropriate term for it after it has been acted on by, and passed, the legislature. It is then something more than a draft or form. It has a legal existence as “an act” of the legislative body, because it becomes a law, without further action from any other branch of the government, if the executive take no measures to prevent .it.

But it is contended, that the evidence of legislative intent depends upon the journals of each house, and that courts of justice have no right to look into these. It is true that the journals are not evidence of the meaning of a statute, because this must be ascertained from the language of the act itself, and the facts connected with the subject on which it is to operate. Nothing more than this was decided in the Bank of Pennsylvania v. The Commonwealth, 7 Harris 156. The constitution directs each house to keep a journal of its proceedings, and in cases where the governor omits to return an act within the time prescribed, and where he returns it with his objections and it is passed by two-thirds of each house, the journals are the highest evidence of the enactment of the law. So if the governor should by mistake sign a bill, which had never been enacted by either house, the journals maybe resorted to to correct the mistake. He has no power to give the force of a law to bills which have never been passed or presented to him by the legislature. The journals of the House of Lords have always been admitted as evidence of their proceedings in criminal cases; and the journals of the House of Commons are also admissible. The journals of Congress and of the state legislatures, are likewise admissible evidence for all legal purposes : Watkins v. Holman, 16 Peters 56; Miles v. Stevens, 3 Barr 42; Albertson v. Robeson, 1 Dal. 9. In this case tbe journals were clearly evidence for tbe purpose of identifying the bill, to which the law-making power expressly referred, when it revoked the 13th section of it.

After that section was thus stricken out, the governor signed the bill which had contained it; and, because he did so the day after the section was abrogated, it is thought that his signature reinstated it. He had no more power to reinstate the abolished section, than he had to make a new law without the sanction of the legislature.

The rules which regulate the period when an act of Parliament takes effect, are not entirely applicable here. In England the theory is, that the statutes are made by the king, with the advice and consent of the two houses of Parliament. They all took effect as of the first day of the session, until the Act of 33 G. 3, c. 13, directed an entry of the time when they passed and received the royal assent: 2 Barn. Adol. 818. But in this state the legislative power is vested in the General Assembly, and the governor has only a qualified veto. The time of the governor’s signature may not be in all cases as effective in fixing the period for the act to take effect as the time of the royal sanction. Be that as it may, the case before us is a very plain one, and we are of opinion that the learned President of the Common Pleas properly decided it.

Judgment affirmed.