In re Speakership of the House of Representatives

• Decision Date: 23 January 1891
• Parties: In re SPEAKERSHIP OF THE HOUSE OF REPRESENTATIVES.
• Court: Colorado Supreme Court

25 P. 707

15 Colo. 520

In re SPEAKERSHIP OF THE HOUSE OF REPRESENTATIVES.

Supreme Court of Colorado

January 23, 1891

Section 3 of article 6 of the constitution of Colorado contains the following provision: 'The supreme court shall give its opinion upon important questions, upon solemn occasions, when required by the governor, the senate, or the house of representatives; and all such opinions shall be published in connection with the reported decisions of said court.' In pursuance of said provision, the following communication and interrogations were duly submitted to the court: 'To the Honorable, the Supreme Court of the State of Colorado--Sirs The eighth general assembly of the state of Colorado met at 12 o'clock noon on the first Wednesday, the 7th day, of January, 1891. The house of representatives on said day elected one of its members, Hon. James W. Hanna, a speaker who was at once sworn in as such speaker, and continued thereafter to exercise the duties thereof, and was duly recognized by the members of the general assembly and by the executive of the state as such speaker, and he is now such speaker, unless deposed by the action of members of said house while in session, as hereinafter stated. On the 14th day of January, 1891, certain of the members of said house constituting a majority thereof, while said house was in session as aforesaid, and said James W. Hanna was occupying the speaker's chair, and engaged in the discharge of his duties as such speaker, sought to depose said Hanna as speaker in manner following, to-wit: A motion was duly made by a member of said house, and duly seconded by a member thereof, that the office of speaker of said house be declared vacant, which motion said Hanna refused to entertain whereupon a member of said house, not the speaker thereof, propounded said motion, and called upon the other members to vote thereon; and thereupon a majority of the whole number of members elected to said house announced themselves in favor of said motion, and the member so propounding said motion declared the same adopted, and the office of speaker vacant. Thereupon, and after the office had been declared vacant in manner aforesaid, said Hanna, upon a viva voce vote, declared the house adjourned, the majority claiming they had voted against said motion. Immediately thereafter a majority of said members, proceeding in manner as before, assumed to elect Hon. Jesse White, a member thereof, as speaker of said house, who thereupon took oath to perform the duties of speaker. Both said Hanna and said White now claim to be the speaker of said house, and are both assuming to discharge the duties thereof. As governor of this state I am and will be required by the constitution and laws of said state to communicate with the speaker of said house upon official and executive business; and I will be required to approve or disapprove acts passed by the said assembly which bear the signature and authentication of the speaker. I certify, therefore, that the questions submitted are important, and arise upon a solemn occasion, wherein I, as the executive of Colorado, require the opinion of the supreme court, in order to properly discharge my duties. I respectfully request, therefore, the opinion of the honorable supreme court, in answer to the following questions: First. Under the constitution and laws of this state, can a speaker of the house of representatives, duly elected, qualified, and acting as such, be removed from office in the manner aforesaid? Second. Who is now the speaker of said house? I am, most respectfully, your obedient servant, JOHN L. ROUTT, Governor.'

Upon reception of said communication, it was ordered that an oral argument be heard before the court upon the following questions: '(1) Has the court any authority under the constitution and laws to pass upon the matters thus presented for its opinion? (2) What is the state of the law, parliamentary or otherwise, pertaining to the subjects covered by the executive inquiry?' It was further ordered that the attorney general, and other members of the bar interested in the subjects to be considered, be requested to participate, as amici curiae, in said argument. Mr. Joseph H. Maupin, attorney general, appeared at the hearing, and introduced Mr. James B. Belford, Mr. Charles S. Thomas, Mr. Hugh Butler, Mr. Joel T. Vaile, and Mr. Harvey Riddell, who addressed the court upon the questions presented.

Syllabus by the Court

1. The speaker of the house of representatives is not a state officer, and is not liable to removal by impeachment.

2. The house of representatives has the power, by a vote of the majority of the whole number of members elected, to remove its speaker from office, and to elect another in his stead.

ELLIOTT, J.

The gravity of the subject presented for the consideration of the court by the communication and interrogatories submitted by his excellency, the governor, has caused us to depart from the general custom of returning categorical answers to such inquiries. Inasmuch as the subject incidentally involves nothing less than the legality of the organization of one branch of the general assembly, and as we have invited and heard able and exhaustive arguments in behalf of the respective claimants to the speakership, we feel that an opinion should be given setting forth the grounds upon which our conclusions are based.

It was urged in argument with great force that this court ought not to express any opinion upon the questions presented by the executive, for the reason that it would be an interference with matters pertaining exclusively to the legislative department of the government, and therefore in conflict with article 3 of the constitution, which divides the governmental powers of the state 'into three distinct departments,--the legislative, executive, and judicial,'--and for bids those of one department from exercising 'any power properly belonging to either of the others, except as in this constitution expressly directed or permitted.' It was further urged that the court could not properly assume to give its opinion upon a question presented by the governor unless the court would have jurisdiction to determine and enforce its views in a direct proceeding involving such question; and it was strongly insisted that the court could not, in any direct proceeding, determine a controversy between contesting claimants for the office of speaker, though it was conceded that, indirectly or incidentally, the court might be required to pass upon such question. Prince v. Skillin, 71 Me. 361.

It must be admitted that the promulgation of a judicial opinion in response to an ex parte inquiry from the executive department of the government, concerning the affairs of the legislative department, is anomalous and peculiar, and, apparently at least, inconsistent with the prevalent American system of separating the governmental powers into distinct departments. But it must be borne in mind that the same instrument which divides the powers of the government into distinct departments has been so amended by the voice of the people as to require the supreme court to 'give its opinion upon important questions, upon solemn occasions, when required by the governor, the senate, or the house of representatives.' Article 6, § 3. We have heretofore endeavored to restrict somewhat the class of subjects upon which the opinion of this court might be required under such amendment. In re Irrigation, 9 Colo. 620, 21 P. 470; In re Senate Bill No. 65, 12 Colo. 466, 21 P. 478; In re Appropriations, 13 Colo. 316, 22 P. 464. Certainly, no constitutional question, or question publici juris, can be of more importance, nor can any occasion be more solemn, than that arising from the present contention respecting the organization of the house of representatives. The subject involves, not merely the constitutionality of a particular bill or enactment, but it may involve the validity of all further proceedings and enactments of the present general assembly. Therefore, while deploring the occasion which has led the executive to request our opinion in the present exigency, we do not feel at liberty to decline answering; we feel constrained by the imperative command of the constitution to give our opinion upon the subject thus pressed upon our consideration. We shall examine into and declare what we conceive to be the strict legal powers of the house of representatives relative to the matter referred to us, irrespective of the policy or expediency of exercising those powers.

From the foundation of representatives government in this country the general rule, as announced by standard American authors on parliamentary law, has been that the legislative body of a state, having the power to choose its own speaker from its own members, has also the inherent power to remove such officer at its will or pleasure, unless inhibited from so doing by some constitutional or other controlling provisions of law. Such is the doctrine announced in the Manual of Parliamentary Practice prepared and published by President Jefferson during the early days of the republic, and republished by the authority of successive congresses of the United States since that period. It is unnecessary to speak of the pre-eminend merit of this work, or of the distinguished character and ability of its author. In Cushing's Law and Practice of Legislative Assemblies, a comprehensive work of great merit, the distinguished author, at paragraph 299, says: 'The presiding officer, being freely elected by the members, by reason of the confidence which they have in him, is removable by them, at their pleasure, in the same manner, whenever he becomes permanently unable, by reason of sickness or otherwise, to discharge the duties of...