In re Veto Power of Governor.

the Commonwealth, and give notice thereof by public proclamation within thirty days after such adjournment."

In Hind's Precedents, Vol. 4, Section 3521, appears the proposition "a vetoed message may not be returned to the President of the United States," citing Congressional Record, 44 Cong., 1 Sess., 5664. President Grant reurned a bill vetoed to the Senate, but before that body had acted upon it he sent a request that the bill be returned to him in order that he might sign it. An interesting discussion arose in the Senate as to the power of the President to recall a vetoed message which had been received by Congress, and it was generally held that the President had no such power. The best reason seems to have been given by Mr. Edmunds, namely: that the Constitution itself provided for the disposition to be made in case the President returns a bill vetoed-to proceed to vote upon it. It was concluded that the bill was then beyond the control of the President and that the only effect, and in fact the intended effect of the President's request was to destroy the persuasive force of the vote. The bill was accordingly passed over the veto in both Houses by large majorities.

The same reasoning would apply to a similar situation under the Constitution of this State, which provides in Article IV., Section 15, relative to the disapproval of bills presented to the Governor thereunder, that "if he (the Governor) shall not approve, he shall return it with his objections to the House in which it shall have originated, which House shall enter the objections at large upon their Journal and proceed to reconsider it," etc. In other words where a bill is returned to the Legislature while it is in session, the Legislature having then under the Constitution a specific duty to perform with reference thereto, it is not only beyond the possession, but also beyond the control, of the Governor, so that he may not, as a matter of right, recall it, although the Legislature would undoubtedly have the same right to consent to a request of the Governor recalling a bill as a matter of courtesy, as the Governor frequently does in compliance with a request from the Legislature for the recall of a bill which has been sent to him.

The precise question here involved, namely: the recall of a "veto," has not been judicially determined but as to the recall of an "approval," it seems to have been decided on the question of possession and control, it having held that the Governor's approval is not complete until the bill has left his possession and control, and that prior to that time he may reconsider his action, erase his signature and veto; but after the bill has left his possession he cannot regain control, erase his signature and return the bill vetoed. People vs. Hatch, 19 Ill., 283.

State vs. New London Bank, 79 Conn., 141.

People vs. McCullough, 210 Ill., 488.

Allegheny County vs. Warfield, 100 Md., 516.

State vs. Whisner, 35 Kan., 271.

In the first case cited, People vs. Hatch, a case in the Supreme Court of Illinois, it is an interesting circumstance that the martyred Abraham Lincoln appeared as one of counsel for the respondent, and the opinion of the Court no doubt reflects some of his sound and forceful logic and reasoning.

The Court said, page 288:

"And why may not the Governor reconsider his act of approval of a bill while it is yet before him, as well as either house of the General Assembly? Does he require less time for reflection, or less opportunity to reconsider an inadvertent or an unadvised act? Is he more likely to be certainly right when he puts his name to a bill than the members of the other department of the government when they vote upon it? In the one case, the executive acts without the aid of discussion and argument; in the other, the members vote with all the advantages of an interchange

In re Veto Power of Governor.

of opinion on the subject. The public good no more requires the act of one to be irrevocable than the other. There must be a time when this right to reconsider terminates-and the same rule applies in the one case as in the other-and that is, when the bill or law has passed from the custody or control of the department or body seeking to reconsider. While within such control and custody the right to reconsider is a necessary incident to the power to act. This right to reconsider is not peculiar to legislative bodies, but is common to all human transactions where there is a discretion to be exercised. An individual may erase his name from a deed, no matter how deliberately it may have been signed, at any time before delivery; and even courts of justice may reconsider their most solemn judgments while they are yet before them. And shall the approval of a law by the executive be a solitary exception? Shall his name, once applied to a bill become irrevocable, although the pen is still in his hand, and the ink not yet dry?-even though it may have been placed there by mistake or fraud-inadvertently or unadvisedly? What great principle of public policy requires the adoption of such an iron rule in this solitary case, while in all other cases, whether of public or private concern, a party may reconsider and retract-may change his purpose and his decision, while the subject matter still remains before him? The time given by the constitution to the executive during which he may retain a bill, shows that it was expected that he would deliberate, consider and reconsider, so long as he chose to retain the bill, within the specified time, and the writing of his name upon it fifty times within that period cannot deprive him of that right, unless he permits the time given him for that purpose to elapse, or by passing it beyond his control."

Bearing in mind that the Governor's disapproval of a bill is essentially a legislative act (Commonwealth vs. Barnett, 199 Pa., 161), it must follow from this sound reasoning that until the status of a bill has become fixed, whether by approval or disapproval, there is the locus penitentiae-the right to reconsider, the right to change the opinion previously expressed. Has the status of a bill vetoed after adjournment of the General Assembly been unalterably fixed by filing the same in the office of the Secretary of the Commonwealth with the objections?

An examination of Article IV., Section 15 of the Constitution, relative to the approval and veto of bills shows that in the case where the Legislature is still in session, if the Governor "shall not approve he shall return it (the bill), with his objection to the House in which it shall have originted, etc." It is clear, therefore, that merely disapproving a bill would not act as a veto unless the same were returned to the proper House. In other words, there are in this instance two steps necessary to be taken by the Governor in order to make a veto effective: (1) disapprove the bill; (2) return it to the proper House.

With reference to the veto of bills within thirty days after the adjournment of the General Assembly, three steps are necessary: (1) disapproval; (2) that "he (Governor) shall file the same with his objections in the office of the Secretary of the Commonwealth;" (3) that he (Governor) "give notice thereof by public proclamation within thirty days after such adjournment."

There can be no question that these three steps are as essential to make a veto effective after adjournment as the two steps above referred to are to make a veto effective while the General Assembly is in session. Suppose for instance, after having filed a bill with his objections in the office of the Secretary of the Commonwealth, the Governor determined not to complete the process by vetoing the bill and did not "give notice thereof by public proclamation within thirty days after such adjournment," could it be said that the veto was nevertheless effective? I think not.

In re Veto Power of Governor.

There is no authority in logic or reason to give one of these constitutional requirements greater force and effect than the other. The Constitution has provided the legislative process by which laws are to be made or bills passed by the Legislature disapproved, and it is unreasonable to assume that it is necessary to comply with some provisions and that others may be disregarded.

This constitutional requirement has been consistently followed since the adoption of the Constitution, and it has been the universal custom for the Governor to make public proclamation of all bills vetoed after the Legislature has adjourned by reading, either in person or by a properly accredited representative, on the thirtieth day after the adjournment, in the rotunda of the Capitol, a proclamation substantially in the following form, which appears in all the Pamphlet Laws:

"A Proclamation by the Governor.

In the name and by the authority of the Commonwealth of Pennsylvania. Executive Department.

A Proclamation.

I (name of Governor), Governor of the Commonwealth of Pennsylvania, have caused this proclamation to issue, and in compliance with the provisions of Article IV., Section 15, of the Constitution, do hereby give notice that I have filed in the office of the Secretary of the Commonwealth, with my objections thereto, the following bills passed by both Houses of the General Assembly, viz., Senate Bill No., etc., etc."

It seems clear, therefore, that until the Governor has given notice of his disapproval "by public proclamation within thirty days after such adjournment," the status of the bill has not been completely and unalterably fixed and he may recall the veto within that period.

Respectfully yours,

FRANCIS SHUNK BROWN,
Attorney General.

Anderson vs. Dormont.

New Trial-Weight of Evidence-Reasonableness of Verdict.

On a motion for a new trial on the ground that the verdict was not in accordance with the weight of the evidence, the question is not what the Court would have decided nor what a jury of reasonable men ought to have done, but what a jury of reasonable men might have done under similar circumstances.

Appeal from viewers' report. No. 213 April Term, 1912. C. P. Allegheny County.

John A. Metz, for plaintiff.

John S. Cort, for defendant.

FORD, J., May 15, 1915.-This is an appeal from the report of a Board of Viewers appointed to ascertain the damages and assess the benefits for the widening of West Liberty Avenue in the Borough of Dormont.

The verdict was for the plaintiff, and the defendant Borough moves the Court for a new trial alleging-inter alia-that the verdict was not in accord with the weight of the evidence.

The issue between the parties was a square issue of fact, and depended upon the weight to be given the testimony of the witneses. The Borough contended, and the Viewers reported, that the special benefits to plaintiff's property exceeded the damages. As is not unusual in this class of cases, there was a marked difference in the opinion of the witnesses respecting the value of the property before and after and as affected by the improvements. Upon part of the plaintiff his witnesses testified that the property was damaged and depreciated in value from $1,500 to $4,140. The witnesses for the Borough said that the property was benefited by the improvement and its market value increased about $1,800.

We have reviewed and carefully considered the evidence and though we would have been satisfied had the jury found for the defendant, yet it cannot be said that the verdict is so clearly contrary to the weight of the evidence as to justify the granting of a new trial. There is no complaint as to the manner in which the jury were instructed.

"A court is not authorized to set aside a verdict simply because if they had been on the jury they would have found a different verdict. It is not sufficient that the verdict may possibly be wrong, but that after giving a proper weight to all the evidence it cannot be right."

It was well said by Stowe, J., in Murray vs. Goehring, "the question before the Court upon this motion is not what a jury of reasonable men ought to have done, but what a jury of reasonable men might have done under similar circumstances."

The value of the property before and after and as affected by the improvement, whether benefited or damaged, were questions for the jury, and the jury has passed upon them. It cannot be said that the verdict is palpably against the weight of the evidence nor that it is the result of either prejudice or sympathy.

The defendant further contends that it was prejudiced by being compelled to try this case together with the appeal of H. W. Bower vs. The Borough of Dormont at No. 217 April Term, 1912. Counsel for the Borough states that objection was made before the judge in the Assignment Room to trying the cases together, and we have no reason to nor do we doubt the statement of counsel, yet the record does not disclose such objection. The properties were in the same neighborhood and viewed by the jury on the one visit. The facts insofar as they relate to the effect of the improvement on the properties were dissimilar, but no complaint was made during the course of the trial. If counsel was of opinion that the facts de

Anderson vs. Dormont.

veloped in the case of H. W. Bower, tended to confuse or mislead the jury, he might have called the matter to the attention of the Court and requested a separation or a continuance of either or both cases. He elected to continue. The jury were instructed to "determine each case as if it were separately tried." The testimony as to values was commented upon both by counsel and the Court as if the cases were distinct and bore no relation cne to the other. It is not clear how the jury could have been confused or mislead nor does it appear that the plaintiff was prejudiced by trial of the causes at one and the same time.

Porter vs. Downing.

Oil and Gas Lease--Alteration--Knowledge of Alteration-Collection of Royalties Estoppel to Deny l'alidity.

In an action of ejectment brought by lessor against the lessee under an oil and gas lease on the ground that the lessee had made material alterations in the lease, it appeared that the lessor with full knowledge of the alterations had brought suit under the original lease and recovered and been paid royalties thereunder.

Held, That plaintiff was estopped from denying the validity of the original lease or taking advantage of its illegal alterations.

Ejectment. No. 2316 July Term, 1913. C. P. Allegheny County.

John W. Dunkle, for defendant.

Clark D. Beggs, for plaintiff.

FORD, J., May 15, 1915.-The action is in ejectment. The verdict of the jury was for the defendant and plaintiff now moves the court for judgment non obstante veredicto. The facts are not disputed and are substantially as follows:

By articles of agreement dated November 25, 1904, the plaintiff, James Porter, leased and let to J. L. Downing, one of the defendants, a tract of land containing about seven acres, situated in Scott Township, for the purpose and with the exclusive right of drilling and operating for petroleum cil and gas. The defendant, J. L. Downing, having defaulted, the lease terminated.

Thereafter, on June 18, 1906, the plaintiff executed and delivered a second lease whereby he leased and let the said tract of land to J. L. Downing for oil and gas purposes. The term of the lease was for two years or as much longer as oil and gas was found in paying quantities. In consideration of the grant or demise the defendant agrees to give plaintiff one-eighth of the oil obtained or produces and saved from the premises and to pay plaintiffs an annual rental for each gas well, the product from which was piped off the premises. Thereafter J. L. Downing sold and assigned his interest in the lease to the defendant, a co-partnership composed of himself, E. G. Husler, Joseph Stewart, J. L. Prestley and J. S. Carmichael, doing business under the name of The Downing Oil Company.

Within the time limited in the lease, the defendants began operations and completed a well on or about August 22, 1906. The wells so drilled produced both oil and gas in paying quantities. On April 7, 1911, the plaintiff brought an action against the defendant at No. 453 May Term, 1911. In his original statement, the plaintiff alleged that the wells drilled by the defendants produced gas in paying quantities; that the gas had been piped off the premises and appropriated by the defendants to their own use and