THE PEOPLE OF THE STATE OF NEW YORK, by their Attorney General, vs. JAMES BOWEN and others.

The governor may approve and sign a bill after the adjournment of the legislature, so as to render the same valid and binding as a law.

The act of the legislature, entitled "An act to incorporate the Metropolitan Gas Light Company of the City of New York," passed April 17, 1855, creating a corporation with authority to lay their pipes in the streets &c., for the purpose of conducting gas &c., upon their obtaining the permission of the two boards of the common conncil, was not unconstitutional and void, either because it established a monopoly in the trade or business of supplying gas within the city of New York; or because it took, for the use of the gas company, the streets or easements or privileges in the streets of the city, being the property of the corporation of the city, without making or providing for compensation to the city, and without the consent of the corporation of the city; or as coming within the constitutional prohibition against the creation of corporations by special acts.

The ninth section of that act, by which it is provided that “the said company shall be deemed to be organized when the president shall be elected, and shall be deemed to be in practical operation from the time the permission and authority provided for in the first section is obtained," was intended to relieve, and did relieve, the corporation from the provision of the revised statutes requiring corporations to organize and commence the transaction of their business within a year.

EMURRER to complaint. The opinion of the court con

tains a statement of the facts stated in the complaint, and of the legal questions raised by the demurrer thereto.

Monell, Willard & Anderson, and Wm. M. Evarts, for the plaintiffs.

M. S. Bidwell, E. P. Cowles and W. Hutchins, for the defendants.

SUTHERLAND, J. This is an action in the nature of a quo warranto, against the defendants, for assuming to be, and acting as a corporation, without authority of law. The complaint alleges that the defendants have associated themselves together and claim to be a corporation, and are unlawfully acting as a corporation, under an alleged act of the legislature of the state

The People v. Bowen.

of New York, entitled "An act to incorporate the Metropolitan Gas Light Company of the City of New York," passed April 17, 1855; but further alleges, that although the bill of said alleged act passed the assembly on the 5th day of April, 1855, and the senate on the 13th day of April, 1855, yet it was not approved of, or signed by the governor, until the 17th day of April, 1855; and that the legislature adjourned without day on the 14th day of April, 1855, and was never thereafter in session during that year. By an averment of the complaint, the act in question (Sess. Laws of 1855, p. 1039) is made a part of the complaint.

By section one of the act, James Bowen and others, (the defendants in this action,) and their present and future associates, are created, constituted and declared to be a body corporate and politic, by the name of "The Metropolitan Gas Light Company of the City of New York," with authority to lay their pipes in the streets &c., for the purpose of conducting gas, &c.; but this can only be done upon obtaining the permission of the two boards of the common council of said city. The complaint further alleges, that in the month of June, 1855, the defendants, pretending to act as a corporation, under the name of "The Metropolitan Gas Light Company of the City of New York," presented their petition to the board of councilmen of the city of New York, praying for permission to lay conductors through the streets &c., for the purpose of conducting gas through the same. That on the 12th day of September of the same year, the board of councilmen passed a resolution granting such permission, but that on the 8th day of December, 1856, the board of aldermen non-concurred, and the resolution was lost. That on the 20th day of December, 1858, the said board of councilmen passed a resolution granting such permission, which resolution is set out in the complaint, and that such resolution was concurred in by the board of aldermen on the 27th day of December, 1858. The complaint insists that the defendants and their asso

The People v. Bowen.

ciates are not a corporation, and have no right to act and assume the franchises of a corporation :

First. Because the act of incorporation was not approved by the governor until after the adjournment of the legislature, and for this reason failed to become a law.

Second. That, if approved by the governor so as to be a law, the act is unconstitutional and void in its purposes and provisions.

Third. That the said corporation did not commence the transaction of its business within one year from the date of its incorporation, and has not yet commenced the transaction of its business, and that thereby its corporate powers (if it ever had any) have ceased. The prayer for relief is, that the act may be adjudged to be in violation of the constitution of this state, and null and void; and that the defendants may be adjudged to unlawfully assume and usurp the franchises of being a corporation, and to act as a corporation without legal authority or right.

To this complaint the defendants have demurred generally, on the ground that the complaint does not state facts sufficient to constitute a cause of action. From this statement it will be seen that three questions are raised by the demurrer :

First. Can the governor approve and sign a bill, so as to make it a law, after the final adjournment of the legislature?

Second. Is the act in question unconstitutional and void, if duly passed and approved by the governor so as to make it a law if otherwise constitutional ?

Third. Does the act in question contain any special provision or provisions, which relieve the corporation, thereby intended to be created, from the provision of the revised statutes, (1 R. S. 600, §7,) requiring corporations thereafter created, to organize and commence the transaction of their business within one year from the date of their incorporation; or if created subject to this provision of the revised statutes, did this corporation in fact commence the transaction of its business within one year from the date of its incorporation? Can a bill

The People v. Bowen.

passed by a majority merely, become a law by the approval and signature of the governor, after the adjournment of the legislature; or, to become a law, must it have such approval and signature during the session of the legislature ?

By section 1 of article 3 of the constitution, it is provided that "the legislative power of this state shall be vested in a senate and assembly." By section 14 of the same article the enacting clause of all bills shall be, "The people of the state of New York, represented in senate and assembly, do enact as follows." And no law shall be enacted except by bill. By section 15 of the same article, "No bill shall be passed unless by a majority of all the members elected to each branch of the legislature, and the question upon the final passage shall be taken immediately upon its last reading, and the yeas and nays entered on the journal." By section 9 of article 4, it is provided "that every bill, which shall have passed the senate and assembly, shall, before it becomes a law, be presented to the governor. If he approves, he shall sign it; but if not, he shall return it, with his objections, to that house in which it shall have originated, who shall enter the objection at large on their journal, and proceed to reconsider it. If, after such reconsideration, two-thirds of the members present shall agree to pass the bill, it shall be sent, together with the objections, to the other house, by which it shall likewise be reconsidered, and, if approved by two-thirds of all the members present, it shall become a law, notwithstanding the objections of the governor. But, in all such cases, the votes of both houses shall be determined by yeas and nays; and the names of the members voting for and against the bill shall be entered on the journal of each house respectively. If any bill shall not be returned by the governor 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 legislature shall, by their adjournment, prevent its return, in which case it shall not be a law."

These provisions amount to a constitutional definition, and

The People v. Bowen.

the result is, I think, that the governor may approve and sign a bill after the adjournment of the legislature, so that the bill which otherwise would not be a law, becomes a law by his approval and signature. The constitution makes the distinction between a bill and a law; it defines the legislative power to be the power to pass bills subject to the qualified negative of the governor; it carefully separates the legislative from the executive power, and carefully excludes the executive power or right of approving or objecting to the bill from the legislative power. By the constitution, this power of approval and of objection is not a legislative, but an executive revisory act, implying in its exercise time, examination, judgment. I think that from the careful exclusion of this revisory right or power by constitutional definition from the legislative powers, and from the general provision in the ninth section of article four, that "every bill that shall have passed the senate and assembly shall, before it becomes a law, be presented to the governor-if he approve, he shall sign it," without the specification of any time or period for the performance of this executive act or duty, it follows that a bill may become a law by the executive approval and signature after the adjournment of the legislature.

By the ninth section, every bill shall be presented to the governor for his approval or objections; and there are two ways in which the bill may become a law during the session of the legislature with his approval and without his approval. If he signs the bill, his signature is evidence of his approval; if he retains the bill ten days without returning it, &c., "the same shall become a law in like manner as if he had signed it;" that is, you may say, that the constitution makes such retention for ten days, evidence of his approval; but the legislature may adjourn before the expiration of the ten days, and thus prevent the return of the bill; in which case, says the constitution, "it (that is, any bill which shall not have been returned by the governor to the legislature before their adjournment) shall not be a law;" that is, by the governor's retention of it