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Opinion of the Justices

Supreme Court of Delaware

November 17, 1961

OPINION OF THE JUSTICES of the Supreme Court in Response to a Question Propounded by the Governor of Delaware.

Page 406

To His Excellency Elbert N. Carvel, Governor of Delaware:

[54 Del. 210] Reference is made to your letter of September 19, 1961, addressed to the Chief Justice, requesting the opinions of the members of the Supreme Court upon three questions involving the construction of the provisions of two articles of the Constitution of the State of Delaware.

This opinion will deal with the first of these questions. It concerns the construction of Article III, Section 18, of the Constitution, Del.C.Ann., which reads in part as follows:

'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 General Assembly shall, by adjournment, prevent its return, in which case it shall not become a law without the approval of the Governor. No bill shall become a law after the final adjournment of the General Assembly, unless approved by the Governor within thirty days after such adjournment.' [Emphasis supplied.]

Your question is as follows:

'The first question raised is whether, before the final adjournment of the General Assembly, a bill not approved by the Governor and not returned to the General Assembly without the approval of the Governor on the 10th day after its delivery to the Governor, due to the General Assembly not being in session, becomes law or is 'pocket vetoed'.'

The facts out of which your question arises are set forth in your subsequent letter to the Chief Justice, dated October 10, 1961. Summarized, they are as follows:

On certain days in April, May, June and September in the present year certain bills, seven in number, were duly passed by both houses of the General Assembly and from time to time were duly delivered to the Governor, as required by the Constitution. The tenth calendar day after each delivery, Sundays excepted, fell upon a day on which both houses of [54 Del. 211] the General Assembly were in recess. Four of these recesses, or adjournments (it is immaterial which term is used), were for periods from 3 to 18 days. One, the latest adjournment, was taken on September 22, subject to reconvening at the call of the presiding officers. As of the date of your last letter the General Assembly had not reconvened.

A table setting forth these facts is annexed to your letter of October 10, and a copy thereof is annexed to this opinion.

The controlling constitutional provision is set forth above. The answer to your question obviously depends upon the meaning of the italicized phrase in Section 18 of Article III, which embodies the provisions for the 'pocket veto'.

Provisions similar to those above quoted are found in the federal constitution and in the constitutions of many of our sister states.

It is elementary that the effect of such provisions is to grant to the Executive the right to share in the exercise of the legislative power, and that the legislature can do nothing to curtail this right. The Governor is entitled to the full period of ten days, Sundays excepted, to determine whether to approve or disapprove the bill. Hence if the General Assembly by adjournment 'prevents' the return, the bill, if the Governor wishes, may be 'pocket vetoed'. Of course, when the Constitution speaks of an adjournment by 'the General Assembly', it necessarily means an adjournment of the originating house.

But does a temporary adjournment or recess have the effect of 'preventing' a return? The answer to this question obviously

Page 407

depends upon whether the return must be made to the house in session.

Upon this question differing views have been expressed. On the one hand the majority of the state decisions that have considered the point hold that a temporary adjournment does not prevent a return because the Governor's message may be [54 Del. 212] delivered to officers or agents of the appropriate house of the legislature. See the following:

State ex rel. Sullivan v. Dammann (221 Wis. 551), 267 N.W. 433, 436; 'the settled practice for at least twenty-five years seems clearly to have been to return a bill to the clerk of the House in which it originated.'

Wood v. State Administrative Board, 255 Mich. 220, 238 N.W. 16, 19; 'return may be made to the proper officer'.

State ex rel. Putnam v. Holm (172 Minn. 162), 215 N.W. 200, 203; return may be made to 'the presiding officer, secretary (or clerk) and members of either house' or to any one of them.

Opinion of Justices, 45 N.H. 607; return may be made 'to the speaker, or to the clerk, or some other proper official.'

Johnson City v. Tennessee, etc., Elec. Co. (133 Tenn. 632), 182 S.W. 587; return may be made to Committee on Enrolled ...

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