55 S.W. 636 (Mo. 1900), The State ex rel. McCaffery v. Mason

Citation:55 S.W. 636, 155 Mo. 486
Opinion Judge:SHERWOOD, J.
Party Name:THE STATE ex rel. McCAFFERY et al., v. MASON, Auditor
Attorney:Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and W. J. Stone for relators. Ben Schnurmacher, Geo. D. Reynolds, Noble & Shields and Morton Jourdan for respondent.
Judge Panel:SHERWOOD, J. Burgess and Marshall, JJ., concur in toto; Gantt, C. J., and Brace and Valliant, JJ., concur in all except the remarks about the Murnane case. Robinson, J., absent. GANTT; BRACE; VALLIANT GANTT; BRACE; VALLIANT
Case Date:March 27, 1900
Court:Supreme Court of Missouri
 
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Page 636

55 S.W. 636 (Mo. 1900)

155 Mo. 486

THE STATE ex rel. McCAFFERY et al.,

v.

MASON, Auditor

Supreme Court of Missouri

March 27, 1900

Peremptory writ awarded.

Edward C. Crow, Attorney-General, Sam B. Jeffries, Assistant Attorney-General, and W. J. Stone for relators.

(1) Courts can not go behind the enrolled bill, as authenticated. Enrollment and authentication are presumption conclusive that the act was regularly passed. A bill is properly authenticated by being signed by the presiding officers of each house of the legislative department of the State government in open session. When this is done, and the prerogative of the Governor, in the exercise of his constitutional executive duties, has been satisfied, the bill becomes a law or rule of action prescribed by the supreme power of the State. It is guaranteed full force and effect and subject alone to such constitutional objections as may appear upon its face, measured by the imperative and necessary application to be given it. People v. Dunn, 80 Cal. 211; Evans v. Brown, 95 Am. Dec. 717; State ex rel. v. Young, 5 Am. Law Reg. 670; Pac. Railroad v. Governor, 23 Mo. 353; Duncombe v. Prindle, 12 Ia. 1; Eld v. Gorham, 20 Conn. 8; Fouke v. Fleming, 13 Md. 392; People v. Delvin, 33 N.Y. 269; State ex rel. v. Meade, 71 Mo. 266; Field v. Clark, 143 U.S. 649. Public policy demands that the enrolled bill, properly authenticated, shall be considered conclusive as to its passage in a constitutional and legal manner. Common law, based upon public policy and sound judgment, has likewise asserted its power in a determined manner in nearly every State in the Union of States, as has also our federal government through its highest judicial tribunal. Field v. Clark, 143 U.S. 674; Pangborn v. Young, 32 N.Y. 29; Passaic v. Stevenson, 46 N.Y. 173; Underground Co. v. Att.-Gen., 46 N.J.Eq. 270; Sherman v. Story, 89 Am. Dec. 114. (2) The two exhibits "C" and "D," introduced in the evidence by respondent, show conclusively that the enrolled bill was signed by the presiding officers of the respective houses of the General Assembly in open session during the suspension of other business and in full compliance with the mandate of section 37, article 4, of the Constitution. This being shown, it is unnecessary to examine the journals of either house further. State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Field, 119 Mo. 611; Supervisor v. People, 25 Ill. 181; People v. Dunn, 80 Cal. 211. (3) The house journal shows that bill number 760 was passed on April 20th. The same journal shows that immediately on the passage of the bill the title was amended on the motion of Mr. Barrett. The senate journal of May 20th shows that immediately on the passage of the bill, and after the president had declared the bill passed, "the title of bill, as amended, was read and agreed to." The title of a bill can not be amended until the bill is first agreed to. Rule 86, adopted by the House of Representatives, provides that the rules of parliamentary practice comprised in "Jefferson's Manual and a digest of the rules and practices prepared by Crutchfield and adopted at the second session of the 53d Congress," should govern the House, etc. Aside from the rule referred to, Jefferson is a standard authority on parliamentary law. On amending the title of a bill Jefferson lays down this rule: "After the bill has passed, and not before, the title may be amended." Jefferson's Manual, sec. 42, p. 171; Crutchfield's Digest, 2 Sess. of Congress, p. 563; State v. Saline Co., 51 Mo. 350; State ex rel. v. Field, 119 Mo. 608. (4) Sections 26, 27, 29, 32 and 38 of article 4 of the Constitution are merely directory, and the court should not even inquire into the truth of the allegations of the return that they were not conformed to, although the inquiry, if made, should disclose compliance, as we hold it would. If this view is correct, then under our objection to the respondent's testimony, an abrupt end is made to all the allegations under consideration, except as to those relating to sections 31 and 37, and possibly section 25. But the record, as we have shown, proves that these sections were not only not violated, but were complied with. In support of the views herein expressed we refer to the following authorities: Pacific Railroad v. Governor, 23 Mo. 353; State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Field, 119 Mo. 608; Field v. Clark, 143 U.S. 649; Pacific v. Seifert, 79 Mo. 211; St. Louis v. Foster, 52 Mo. 513. (5) The act in question does not contain more than one subject and that is clearly expressed in the title. St. Louis v. Tiefel, 42 Mo. 578; State v. Matthews, 44 Mo. 523; State v. Miller, 45 Mo. 495; Hannibal v. Marion Co., 69 Mo. 571; State ex rel. v. Mead, 71 Mo. 266; State ex rel. v. Ransom, 73 Mo. 79; State v. Bennett, 102 Mo. 357. (6) The act creating board of election commissioners in cities of 300,000 inhabitants and over is not a special law. McAnnich v. Railroad, 20 Ia. 338; State v. Parsons, 40 N. L. 1. Nor does the classification depend on numbers. Wheeling v. Philadelphia, 77 Pa. St. 338.

Ben Schnurmacher, Geo. D. Reynolds, Noble & Shields and Morton Jourdan for respondent.

(1) In the passage of the "Nesbit Bill" through the two houses of the General Assembly, the provisions of article 4 of the Constitution were violated. (a) Section 25 of the Constitution was violated, in that the bill was "so amended in its passage through" (the House) "as to change its original purpose." Brandon v. State, 16 Ind. 197; State ex rel. v. Ransom, 73 Mo. 88. (b) The journal of the House does not show a vote by yeas and nays on the adoption of the bill, after the title had been amended; regarding the title as part of the bill, this was a violation of section 31. (2) These constitutional provisions are mandatory. Cooley Const. Lim. (3 Ed.), sec. 76, p. 86; Ibid., sec. 150, p. 165. The Constitution being the fundamental law and restrictive in its powers, is not to be construed like a statute. Varney v. Justice, 86 Ky. 596; Wells v. Railroad, 110 Mo. 286; Cohn v. Kingsley, 49 P. 985; State v. Swan, 51 P. 209; State v. Kiesewetter, 45 Ohio St. 254. (3) The journals, under our Constitution, may be received in evidence, and examined, to determine whether a law had been passed in accordance with the constitutional requirements, and these journals are the best and highest evidence, controlling the enrolled bill itself. Douglas v. The Bank, 1 Mo. 24; State v. McBride, 4 Mo. 305; State ex rel. v. Mead, 71 Mo. 266; State v. Wray, 109 Mo. 594; Wells v. Railroad, 110 Mo. 286; State ex rel. v. Field, 119 Mo. 593. Whether a statute was a constitutional enactment or not is a judicial question to be determined as such. State v. Bailey, 16 Ind. 46; Speer v. Mayor, 85 Ga. 52; Webster v. Hastings, 77 N.W. 137; People v. Dettenthaller, 77 N.W. 450; State v. Green, 36 Fla. 154; State v. Hocker, 36 Fla. 358; Cohn v. Kingsley, 49 P. 985; Union Bank of Richmond v. Commissioners, etc., 119 N.C. 214. (6) The law in question in itself is unconstitutional. Const. of Mo., art. 8, sec. 5; Ewing v. Hoblitzelle, 85 Mo. 64; Ex parte Joffee, 46 Mo.App. 360; State ex rel. v. Foster, 119 Mo. 344; Damon v. Broderick, 43 P. 516; Kansas City ex rel. v. Scarritt, 127 Mo. 642. (5) The law is unconstitutional because it expressly contravenes the classification of art. 8, sec. 5, of the Constitution. Sutherland on Stat. Const., sec. 14; Wells v. Supervisors, 102 U.S. 635; Chandler v. Horn, 83 Ala. 390; Ex parte Joffee, 46 Mo.App. 360; Roth v. Gobbert, 123 Mo. 31; Miller v. Wagenhouser, 18 Mo.App. 14; Grumley v. Webb, 44 Mo. 444; Dart v. Bagley, 110 Mo. 42; Wilcox v. People, 90 Ill. 186; Manley v. State, 7 Md. 135; Lastro v. State, 3 Tex.App. 363.

SHERWOOD, J. Burgess and Marshall, JJ., concur in toto; Gantt, C. J., and Brace and Valliant, JJ., concur in all except the remarks about the Murnane case. Robinson, J., absent.

OPINION

Page 637

[155 Mo. 493] In Banc.

Mandamus.

SHERWOOD, J.

-- This is an original proceeding in this court, its object being to compel the city auditor to audit a certain bill of expenses incurred by relators as the board of election commissioners in and about the performance of their official duties in their capacity as such commissioners.

The return of the city auditor giving reasons for refusing to audit the bill in question, states in substance that the law under which such election commissioners were appointed and are acting, is constitutionally invalid for that in the course of its passage such proceedings were had as violated the Constitution of this State in several particulars.

The objections thus raised to the constitutional validity of the litigated act will now be discussed. That act is known as House Bill No. 760, and entitled: "An Act to provide for the registration of voters in cities now having or which hereafter may have three hundred thousand inhabitants or more; to provide for the creation of a board of election commissioners, provide for its appointment and define its duties; to govern elections in such cities, defining offenses and providing penalties therefor, and to prescribe rules and regulations governing registration and elections therein, and to repeal all acts and parts of acts in conflict or inconsistent herewith." [Laws 1899, p. 179.]

Section 37 of article 4 of the Constitution declares that: "No bill shall become a law until the same shall have been signed by the presiding officer of each of the two houses in open session; and before such officer shall affix his signature to any bill, he shall suspend all other business, declare that such bill will now be read, and that, if no objections be made, he will sign the same to the end that it may become a law. The bill shall then be read at length, and if no objections be made...

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