APPEAL from the Circuit Court of Sangamon County; the Hon.
CREEL DOUGLAS, Judge, presiding.
MR. JUSTICE SCHAEFER DELIVERED THE OPINION OF THE COURT:
The issue in this case is whether or not House Bill 1575 was passed by both houses of the 73rd General Assembly in accordance with the constitution of Illinois. The petition for mandamus filed on the relation of Martin Myers alleges that it was so passed, and that the defendants, who are the presiding officers of the House of Representatives and the Senate of the 73rd General Assembly, and other officers and employees of the 73rd General Assembly concerned with the enrolling and engrossing of bills, have failed to perform their duties and to present the bill to the Governor for his approval or veto. The circuit court of Sangamon County overruled the defendants' motion to dismiss the petition. The defendants elected to stand by their motion and the court directed that a writ of mandamus issue as prayed. The defendants have appealed directly to this court. The case presents a question arising under the constitution of Illinois.
House Bill 1575 amends certain sections of the Harness Racing Act. It was passed by the House on June 18, 1963, and by the Senate on June 28, 1963. Subsequently, on June 28, a motion prevailed to reconsider the vote by which the Senate had adopted the bill, and on June 29 it was tabled. The question for decision is whether the reconsideration and tabling of the bill are of any effect in view of the Governor's adjournment of the 73rd General Assembly, on June 28, 1963, under section 9 of article V of the constitution.
The petition alleges that the following events took place in the House of Representatives on June 28, 1963: The House adopted House Joint Resolution No. 71 which provided that "when the two Houses adjourn on Friday, June 28, 1963, they stand adjourned sine die," and requested the concurrence of the Senate therein. Thereafter the House adopted House Resolution No. 190 which directed the Clerk of the House to "inform the Senate that the House is ready to adjourn and inquire if the Senate has anything further to communicate to the House." Thereafter the House adopted House Joint Resolution No. 72 which provided "that when the two houses adjourn on Friday, June 28, 1963, which adjournment shall be no later than 9:30 o'clock p.m., Central Daylight Saving Time, they stand adjourned sine die," and requested the concurrence of the Senate therein. Thereafter the House adopted House Resolution No. 191, which recited the adoption of the two earlier joint resolutions concerning sine die adjournment, and continued:
"Whereas, On June 28, 1963, at the hour of 8:46 o'clock p.m., Central Daylight Saving Time, the Clerk of the House delivered said House Joint Resolution No. 72, accompanied by a message advising the Senate of the action of the House of Representatives and requesting the concurrence of the Senate therein to the Secretary of the Senate and requested a receipt therefor, but the Secretary of the Senate refused to accept the resolution and message or to issue a receipt therefor, whereupon the Clerk of the House of Representatives laid such resolution and receipt upon the desk of the Secretary of the Senate in the Senate chambers and returned to this House and reported this action; and
"Whereas, The hour of 9:30 o'clock p.m., Central Daylight Saving Time, has now passed, and a disagreement exists between the two Houses with respect to the time of adjournment; therefore, be it
"Resolved, By the House of Representatives of the Seventy-third General Assembly of the State of Illinois, that the two Houses of this General Assembly, by their aforesaid action, have demonstrated that they have disagreed and cannot agree with respect to the time of adjournment of the General Assembly; and, be it further
"Resolved, That the Speaker and the Clerk of the House of Representatives are hereby directed to so inform the Governor, and the Speaker and the Clerk of the House are hereby directed to certify to the Governor such disagreement of the two Houses with respect to the time of adjournment of the General Assembly."
At 10:45 p.m. on June 28, 1963, the Speaker of the House laid before the Houses the following proclamation by the Governor, dated June 28, 1963, which was read at large by the Clerk:
"Whereas, I have been officially informed by the certificate of the Speaker and the Clerk of the House of Representatives of the Seventy-third General Assembly of the State of Illinois that a disagreement exists between the two Houses of the General Assembly with respect to the time of adjournment; and
"Whereas, I find that such disagreement does exist;
"Now, Therefore, I, Otto Kerner, Governor of Illinois, by virtue of the authority in me vested by Section 9 of Article 5 of the Constitution of Illinois, do hereby declare the Seventy-third General Assembly of the State of Illinois adjourned to the 6th day of January, A.D. 1965, at twelve o'clock noon.
"IN WITNESS WHEREOF, I have hereunto set my hand and caused the Great Seal of the State of Illinois to be affixed.
"Done at the Capitol, in the City of Springfield, this 28th day of June in the Year of Our Lord one thousand nine hundred and Sixty-three, and of the State of Illinois the one hundred and Forty-fifth.
"By the Governor: OTTO KERNER, Governor.
"CHARLES F. CARPENTIER, Secretary of State."
The petition further alleges: At approximately 11 p.m. on June 28 the Governor's proclamation was delivered to the Lieutenant Governor, who was then presiding over the Senate; that the Lieutenant Governor "published and read at large said Proclamation to the members of said Senate" and at approximately 11:05 p.m. declared the Senate adjourned until January 6, 1965, and left the Senate chamber together with 26 members of the Senate. Thereafter Senator Arthur J. Bidwill occupied the rostrum, and a motion to reconsider the vote by which House Bill 1575 had been adopted was passed by a group of Senators who remained in the Senate chamber. The petition alleges that this action, taken after the adjournment of the 73rd General Assembly, was not the action of the Senate and had no effect upon the passage of House Bill 1575. The petition then alleges that the defendants have failed to perform the duties imposed upon them to the end that House Bill 1575 might be presented to the Governor for his approval or veto, and it concludes with a prayer for the issuance of a writ of mandamus to compel them to perform those duties.
The defendants filed a motion to dismiss under section 48 of the Civil Practice Act, (Ill. Rev. Stat. 1963, chap. 110, par. 48) "by reason of the following affirmative matter which avoids the legal effect of or defeats the claim or demand of plaintiff: * * * 2. That the official Senate Journal of the 73rd General Assembly of the State of Illinois distinctly shows that the reconsideration of the vote by which House Bill No. 1575 was passed occurred on June 28, 1963, and that the motion to reconsider prevailed and that House Bill No. 1575 was then held on the order of third reading. That said Senate Journal for June 28, 1963, shows nothing in respect to the proclamation from the Governor declaring the 73rd General Assembly adjourned. That this proclamation from the Governor adjourning the 73rd General Assembly is first mentioned in the Senate Journal for June 29, 1963, wherein it is recited that said proclamation from the Governor was read in the Senate. * * *
"3. That the recitals in the Journal are controlling and cannot be contradicted in any way."
Attached to the defendant's motion to dismiss are excerpts from the Senate Journals of July 28 and July 29, which show the adoption of Senate Bill 1575 by the ...