Brown v. Morris

Decision Date14 May 1956
Docket NumberNo. 45349,45349
Citation290 S.W.2d 160,365 Mo. 946
PartiesAnne C. BROWN, Individually and as Administratrix of the Estate of Robert L. Brown, Deceased, Appellant, v. M. E. MORRIS, Director of Revenue, State of Missouri, and Albert S. Arenson, Collector of Revenue, Division of Collection, Department of Revenue, State of Missouri, Respondents.
CourtMissouri Supreme Court

Robert L. Brown, John B. Sharpe, St. Louis, for appellant.

John M. Dalton, Atty. Gen., Robert R. Welborn, Asst. Atty. Gen., for respondents.

STORCKMAN, Judge.

This declaratory judgment action attacks the constitutionality of the Missouri cigarette tax law which was approved by the voters at an election held on October 4, 1955, pursuant to a referendum ordered by the general assembly. The act imposes a tax for public school purposes at the rate of one mill per cigarette upon the sale of cigarettes in the State of Missouri. Chapter 149, RSMo 1949, as added in 1955, V.A.M.S. The plaintiffs appealed from an adverse judgment.

The plaintiffs, a husband and wife copartnership, were engaged in the selling of cigarettes at wholesale and retail in the City of St. Louis. The plaintiff Robert L. Brown died after the appeal was taken and his right of action has been revived, so that Anne C. Brown individually and as administratrix of the estate of Robert L. Brown, deceased, is now the appellant. The defendants, being the director of revenue and the collector of revenue, respectively, were sued in their capacities as state officers and are the respondents on this appeal.

The relief requested in plaintiff's amended petition is that the cigarette tax law be declared unconstitutional, void and of no effect on the ground that the legislative bill was not signed by the speaker of the house of representatives in accordance with the provisions of Sec. 30 of Art. III of the 1945 Constitution, V.A.M.S. 1 and on the further ground that the original legislative bill 'became lost' and an authenticated and certified copy of the bill in lieu of the original was passed by the general assembly. The appellant states the question involved on appeal is 'whether or not the signing of a legislative bill by the presiding officers of each of the houses of the general assembly is mandatory before the bill shall become a law.'

The cigarette tax law had its genesis in Senate Bill No. 351 which was introduced in the senate of the 68th Missouri General Assembly on April 5, 1955. One section of the bill provided for its submission to the qualified voters of the state for their approval or disapproval at a special referendum election ordered to be held on October 4, 1955. The bill was read for the third time and passed by the senate on May 9, 1955. The bill was then transmitted to the house of representatives where the events occurred that give rise to this litigation.

There was a House Committee on Taxation and Revenue, the function of which was 'to consider and report on all bills pertaining to the administration of taxation and revenue laws.' However, Senate Bill No. 351, after being read twice, was referred by the speaker of the house to the House Committee on Governmental Organization and Related Matters. The purpose of this committee, as shown by the rules of the house, was to 'consider and report upon all matters relating to the reorganization, consolidation and abolition of boards, bureaus, commissions and all other offices and departments of state, county and township governments; public buildings of the state including the Division of Public Buildings and the capitol grounds; and state libraries and the legislative library.'

The speaker delivered possession of the original bill to the committee chairman, Joseph Tanner, representative of the second district of Jackson County. Mr. Tanner testified that he left Jefferson City on the evening of May 11, after receiving the bill, and that he did not return until the morning of May 30, which was the day before the general assembly was required to adjourn by virtue of constitutional provision. The chairman had set hearings on the bill for May 24 and May 30, but no committee hearings were held and there was no committee action.

On May 18 the house of representatives by a vote of 79 to 33 relieved the committee of further consideration of Senate Bill No. 351 and placed it at the top of the house calendar entitled 'Senate Bills for Third Reading.' The original of the bill could not be found and an authenticated copy was used in its stead. On May 19 Senate Bill No. 351, as amended, was read for the third time and passed. The house journal shows 'The speaker declared the bill passed.'

On May 24 the bill was returned to the senate with a request for concurrence in House Amendment No. 1. After once refusing to do so, the senate concurred on May 31, the last day of the session. The Senate Committee on Bills Truly Agreed To and Finally Passed thereafter reported that the bill had been duly enrolled and correctly printed. The bill was signed by the president of the senate and transmitted to the house.

The speaker of the house refused to affix his name in the blank provided for such purpose on the enrolled copy of the bill, but did attach to said bill a statement which he signed, 'Roy Hamlin, Speker of the House,' reading as follows:

'I have returned the attached purported Senate Bill No. 351 unsigned for the reason that Senate Bill No. 351 as passed by the Senate and sent to the House has not been read in the House on three successive days as required by Section 21, Article III of the Constitution. Same was read the second time, assigned to the Committee on Governmental Organization and Related Matters and said bill is still in the possession of the Chairman of said Committee, and has not at any time been passed by the House of Representatives as required by the above section of the constitution.'

The original enrolled bill and the original perfected copy of Senate Bill No. 351 were delivered to the office of the secretary of state. The attorney general furnished the secretary of state with a ballot title which he certified to the county clerks and the election commissioners. Publication of the notice of the special election which included a complete copy of the bill was made in 212 newspapers in the state. Proof of such publication was received by the secretary of state and introduecd in evidence.

At the referendum election held on October 4, 1955, 230,851 votes were cast in favor of the measure and 95,717 were cast against it. This result was certified by the secretary of state to the governor and on October 26, 1955, the governor issued his proclamation declaring the measure approved upon the referendum.

No legal action was taken prior to the election, but this action for a declaratory judgment was filed on October 8, 1955.

The speaker of the house and the committee chairman both testified at the trial of this case. The speaker testified that he did not see the bill from the time he delivered it to Chairman Tanner on May 11 until the morning of June 1, which was the day after the legislature adjourned. In the meantime he had talked on the telephone with Chairman Tanner who was in the State of Kansas and had been told that the original bill was in the chairman's possession in Jefferson City. However, a search of the chairman's office failed to reveal the bill.

Chairman Tanner testified that when he left Jefferson City on May 11 he locked the original bill in a filing cabinet; that he received inquiries as to the whereabouts of the bill when he was in the State of Kansas, and that he returned to Jefferson City on May 30 but that he did not remove the bill from his office until June 1 when he delivered it to the chief clerk's office.

The committee chairman and the speaker of the house were doubtless under the misapprehension that no action could be taken on the pending bill because of the failure of the committee to hold its hearings and to report on the bill. Sec. 27, Art. IV of the 1875 Constitution did provide that 'no bill shall be considered for final passage unless the same has been reported on by a committee.' However, this provision has been eliminated entirely and Sec. 22 of Art. III now provides that 'one-third of the elected members of the respective houses shall have power to relieve a committee of further consideration of a bill and place it on the calendar for consideration.' By this authority the house relieved the committee but the chairman and the house speaker evidently continued under the misguided notion that the house could not proceed without the original bill. This means of blocking legislation, commonly known as 'sitting on the bill,' is the very practice these constitutional changes were designed to prevent. In the face of the chairman's perverseness in retaining the original bill, the house was justified in proceeding with an authenticated copy. No question was raised as to its correctness.

It is generally recognized that the purpose of requiring legislative enactments to be signed by the presiding officers is to provide a 'mode of authentication' evidencing the fact that a particular bill has been passed in due form by the legislative body involved. Field v. Clark, 143 U.S. 649, 671, 12 S.Ct. 495, 36 L.Ed. 294. The appellant does not deny that the bill in question passed both houses of the general assembly, but only contends that the speaker of the house did not sign the bill and that signing by him was a mandatory prerequisite of the bill's validity.

As a general rule, after a legislative measure has been passed by the general assembly, approved by the voters on referendum and proclaimed by the governor to be in full force and effect as a law of the State of Missouri, the courts will not hold such act invalid because of procedural errors or defects occurring during the course of its adoption. Moore v. Brown, 350 Mo. 256, 165 S.W.2d 657, 663; State v. Burns, 351 Mo. 163, ...

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