Pacific R.R. v. Governor

• Decision Date: 31 October 1856
• Citation: 23 Mo. 353
• Court: Missouri Supreme Court
• Parties: THE PACIFIC RAILROAD v. THE GOVERNOR.^a1

23 Mo. 353

THE PACIFIC RAILROAD

v.THE GOVERNOR.^a1

Supreme Court of Missouri.

October Term, 1856.

1. Under an application for a mandamus to the governor, requiring him to issue the bonds of the state to a railroad company under a law alleged by him to have been passed by the general assembly over his veto without the observance of the forms prescribed by the constitution, a majority of the court concurred in sustaining jurisdiction of the application, and passing upon the validity of the law, reserving the question of power to mandamus the governor for the final hearing upon the return to a conditional writ. (Judge LEONARD dissenting.)

2. The validity of an enrolled statute, authenticated in the manner pointed out by law, by the certificate of the presiding officers of the two houses of assembly that it passed over the governor's veto by the constitutional majority, can not be impeached by the journals showing a departure from the forms prescribed by the constitution in the reconsideration of the bill.

Application for a mandamus to Sterling Price, governor of the state of Missouri, requiring him to deliver to the Pacific Railroad Company eight hundred bonds of the state, under an act entitled “An act to secure the completion of certain railroads in this state,” passed over the governor's veto on the 10th of December, 1855. The governor refused to issue the bonds on the ground that the law was unconstitutionally passed. An agreed case was made, the substance of which is stated in the opinion of the court. The act referred to was deposited with the laws in the office of the secretary of state, authenticated in the manner pointed out by the first section of the second article of the act concerning laws (R. C. 1845). The matter was argued by T. T. Gantt and H. R. Gamble on behalf of the Railroad, and by Mr. Gardenhire, attorney general, on behalf of the governor.

Mr. Gamble argued the following points:

I. This court has jurisdiction of every application for a mandamus, although it may refuse to issue the writ where the applicant has no legal interest in the performance of the duty, or has another adequate remedy against the officer, or the officer has a discretion in relation to the duty to be performed. The power to issue the writ to the governor is not to be denied because he is an officer of the executive department of the government, nor because his office is established by the constitution. (Marbury v. Madison, 1 Cranch.) The argument of the attorney general, in the case of Stockton and others v. Kendall, (12 Pet.) conceded that any officer, even the president, might be obliged, by mandamus, to perform an act purely ministerial.

II. The act in question is so presented to the court in the agreed case, with the signatures of the officers of the assembly, that it can not be questioned; and the journals are not to be referred to for the purpose of impeaching it. (Upon this point, the counsel argued that, in the absence of any constitutional provision on the subject, it was competent for the legislature to prescribe what should be conclusive evidence that a law was constitutionally passed over the governor's veto, and that this was done by the first section of the second article of the act concerning laws (R. C. 1845). He referred to Story on the Constitution, § 839, 840, as to the purpose for which journals are kept. He also commented upon the cases cited from 23 Wend. 103; 2 Hill, 31; 4 Hill, 484; 1 Denio, 14; and Gifford v. Livingston, 2 Denio; and concluded that in none of them was it distinctly settled that an act can be impeached by the journals.)

III. If the journals are examined, they will show no departure from the provisions of the constitution affecting the validity of the act.

Mr. Gantt stated the points argued by him, as follows:

I. In determining the validity of the act, the court can not look behind the enrolled bill, which is a record of the most absolute kind.

II. The provision of the constitution supposed to have been disregarded, is one which prescribes a merely formal mode of proceeding and is directory only.

III. If the observance of the provision be nevertheless important, it will be seen by looking into the journal that it has been observed.

Mr. Gardenhire argued the following points:

I. The enrolled bill and the certificate indorsed thereon, signed by the speaker of the house and the president of the senate, is not conclusive evidence that the constitutional requisites have been observed. (State v. McBride, 4 Mo. 303; 1 Kent, p. 500, note; 14 Ills. 300; 23 Wend. 103, 104, 163; 2 Hill, 31; 4 Hill, 384, 390; 2 Stephen's Comm. 403; Dwarris on Stat. 31; 1 Greenl. Ev. § 482; 1 Bouvier's Law Dic. 674; 7 Cow. 613.) The constitution provides a mode of authenticating a bill passed over the governor's objections, by requiring the yeas and nays to be entered upon the journals, with the governor's objections. This is the constitutional substitute for the governor's signature, and the journals are the first, the original records of it, and it is not in the power of the legislature to change the constitutional mode of authenticating a law.

II. It was necessary to enter the governor's objections upon the journals of both houses.

III. The bill under consideration was not passed in the manner prescribed by the constitution, and it is not a law of the land.

SCOTT, Judge, delivered the opinion of the court.

On the 10th day of December, 1855, an act entitled “An act to secure the completion of certain railroads in this state” was passed by the general assembly, the governor's objections to the contrary notwithstanding. This act was authenticated pursuant to the constitution and laws, and was deposited by the governor in the office of the secretary of state. It is agreed between the parties to this proceeding, that, according to the provisions of this act, if it is binding as a law, the Pacific Railroad Company became entitled, upon the performance of certain conditions therein mentioned, to have and demand from the governor of the state of Missouri, eight hundred state bonds, each for the sum of one thousand dollars, payable thirty years after date. It is also admitted that the said company has performed the conditions prescribed by the law, and did, on the 17th day of January, 1856, demand of the governor the said state bonds, and that the governor refused to issue them, alleging as a reason for such refusal, that the proceedings of the general assembly, after the return of said bill by him with his objections thereto, were not in conformity to the constitution, and especially to the requirements of the 10th section of the 4th article of that instrument.

Extracting from the agreed case the substance of so much of the journals as shows wherein consisted the alleged irregularity in reconsidering the bill, after its return with the governor's objections, it appears that the bill was sent to the governor on the 4th day of December, 1855, for his approval; on the 10th day of that month, it was returned to the senate (the house in which it originated) by the governor with his objections, which were spread upon the journal of that day, and ordered to be printed. The bill was reconsidered on the same day and passed by the majority required by the constitution, its passage being evidenced by the names of those voting for and against it being spread upon the journal. After having passed the senate, the bill, together with the governor's message, was, on motion, ordered to be sent to the house of representatives. On the same day that the bill passed the senate, the fact of its passage by that body was communicated to the house of representatives, and it was immediately taken up for consideration, and after an unsuccessful motion to defer its reconsideration until the following day, and after dispensing with the reading of the governor's objections, it passed by the requisite majority--the ayes and nays for and against the bill being spread upon the journal. On the 12th of December, on motion, the governor's objections to the bill were spread upon the journal of the house of representatives; and on the 13th day of December, the senate journal was, on motion, so amended as to make it appear that on the day on which the bill passed the senate, it was ordered that the bill and message of the governor be sent to the house of representatives. It was further agreed that the admissions made on the part of the governor were made because the duties required by said bill are not political duties appertaining to his office of chief magistrate, but duties created by said bill, which he was willing to perform, if said bill be a law; in which event there shall be no necessity for the actual emanation of the writ of mandamus, the governor being only desirous to know whether the said law be constitutional or not. The foregoing are substantially the facts on which the mandamus is prayed, requiring the governor to issue the bonds demanded by the Pacific Railroad Company.

This application involves several novel and very important questions. But it has been intimated that the matter first to be determined is whether a mandamus can issue to the chief executive officer of the state, requiring him to do any act; and that in the event the opinion should be entertained that a mandamus can not issue to the governor, then the judgment of this court, on the other questions involved in the case, would be extrajudicial, and should not be expressed.

We know no rule or principle of law which prescribes the order in which the matters of law involved in a controversy of which a court has jurisdiction, shall be considered. If a question is fairly involved in a controversy, and it is so presented by the parties to it that its determination would settle the litigation, it would be unusual for the court to evade the question presented, and rid itself of the controversy by an opinion that would leave the legislation between the parties undetermined, to be...