State ex rel. Attorney Gen. v. Mead

• Citation: 71 Mo. 266
• Parties: THE STATE ex rel. THE ATTORNEY GENERAL v. MEAD.
• Decision Date: 31 October 1879
• Court: United States State Supreme Court of Missouri

71 Mo. 266

THE STATE ex rel. THE ATTORNEY GENERAL

v.MEAD.

Supreme Court of Missouri.

October Term, 1879.

Original Quo Warranto.

JUDGMENT OF OUSTER AWARDED.

The respondent, Mead, having been appointed by the county court of Livingston county to fill a vacancy in the office of recorder of deeds of that county, the attorney general instituted this proceeding to vacate the appointment.

J. L. Smith, Attorney-General, for the State.

Henry Flanagan for respondent.

SHERWOOD, C. J.

The question for determination in this case is whether the law under which the respondent claims his appointment was repealed, the former law (G S., p. 162, § 28) providing that the county court should temporarily fill a vacancy in the office of recorder of deeds, while the law relied on by relator, and which is alleged to have gone into effect on the 1st day of November, 1879, provides that such and similar vacancies “shall be filled by appointment by the governor.” (Rev. Stat. 1879, § 5527, p. 1085.) This law undoubtedly accomplished the repeal of the former one, if possessed of constitutional validity. Three objections are, however, taken on the score of lack of conformity to constitutional requirements. First. That the recent statute, the title of which is, “An act to amend and revise chapter 2, title 2, of the General Statutes of Missouri concerning popular elections,” violates section 28 of article 4 of the present constitution, which requires that “No bill shall contain more than one subject, which shall be clearly expressed in its title.” Second. That in the passage of the act in question, section 37 of article 4 of the constitution was violated. Third. That section 38 of the same article was also violated. We will consider in the order mentioned the objections urged.

1. CONSTITUTIONAL LAW: subject and title of act: election law.

1. The first would seem to require but little discussion, since similar objections have heretofore received discussion by us. State ex rel. v. Lafayette Co., 41 Mo. 39; City of St. Louis v. Tiefel, 42 Mo. 578; City of Hannibal v. The County of Marion, 69 Mo. 571. The principle to be readily deduced from these cases and the authorities cited, is, that if any matter contained in a statute be objected to, as not referred to in the title, or that the bill contains more than one subject, the objection urged will not be held well taken, if the clause or section to which objection is raised be germane to the subject treated of in the title. Applying this recognized principle in the present instance, section 5527, supra, will be found in entire harmony with it, for there is an obvious connection and congruity between the idea expressed in the title, “Concerning popular elections,” and that of providing for filling, by gubernatorial appointment, vacancies temporarily occurring in offices filled, in the first instance, by the ordinary machinery of an election, and to be so filled again when the temporary exigency which occasions the temporary appointment has, with the cause in which it had its origin, ceased to exist. This point must, therefore, be ruled against respondent.

2. CONSTITUTIONAL PROVISIONS, MANDATORY, DIRECTORY: legislative proceedings: journal of legislature

II. Next for consideration is whether the statute now being discussed met, in its passage, with such conformity to the provisions of section 37 of article 4 of the constitution, as enables us to say, that section has not been infringed in the passage of that statute

Section 37 is as follows: “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, he shall, in presence of the house in open session, and before any other business is entertained, affix his signature, which fact shall be noted on the journal, and the bill immediately sent to the other house. When it reaches the other house, the presiding officer thereof shall immediately suspend all other business, announce the reception of the bill, and the same proceedings shall thereupon be observed in every respect as in the house in which it was first signed. If in either house any member shall object that any substitution, omission or insertion has occurred, so that the bill proposed to be signed is not the same in substance and form as when considered and passed by the house, or that any particular clause of this article of the constitution has been violated in its passage, such objection shall be passed upon by the house, and if sustained, the presiding officer shall withhold his signature; but if such objection shall not be sustained, then any five members may embody the same, over their signatures, in a written protest, under oath, against the signing of the bill. Said protest, when offered in the house, shall be noted upon the journal, and the original shall be annexed to the bill to be considered by the governor in connection therewith.”

At the time of the delivery of the opinion in the case of the Pacific Railroad v. The Governor, 23 Mo. 353, which held that the validity of an enrolled statute, authenticated in conformity with law, could not be impeached by the journals showing non-compliance with constitutional forms in the reconsideration of a bill, the only provision in the constitution in reference to the authentication of a bill passed by both houses then was that it should “be signed by the speaker of the house of representatives and by the president of the senate.” Art. 3, § 21, Const. 1820. But upon the adoption of the constitution of 1865, a prohibitory section similar to section 31, infra, was added to section 21 just mentioned, in these words: “No bill shall be passed unless by the assent of a majority of all the members elected to each branch of the general assembly; and the question upon the final passage shall be taken immediately upon the last reading, and the yeas and nays shall be taken thereon and entered upon the journal.” (Const. 1865, Art. 4, § 24). As if with the advance toward a “higher civilization” greater precautions were requisite in legislative matters than in the early days of our State's history.

Respondent relies upon the journals to make out his case. The intimation is given in Bradley v. West, 60 Mo. 33, that the legislative journals might, in proper circumstances, be received in evidence to show that a law had not been passed in accordance with the constitutional requirements. The great current of authority is certainly in favor of such evidence for such a purpose, and that the journals may disclose such a state of facts as will warrant the courts in holding a statute void. Cooley Const. Lim., 135, 136, and cases cited. We have no question but that this view is the correct one. Taking this, then, as the starting point, let us see if, upon examination, the journals will support or overthrow the statute. In order satisfactorily to determine this, it first becomes necessary to inquire whether section 37 is mandatory or directory, for if the latter, the omission of the journals in certain particulars would not be a fatal one.

We are convinced that the initial clause of the section 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,” is mandatory, though it is quite evident that the mandate of the constitution would be obeyed, so far as concerns proper authentication of the bill, when it receives the signature of the respective presiding officers in open session. But we do not regard the other clauses of the section under review as mandatory; for it is to be observed that those clauses do not declare that “no bill shall become a law,” if the presiding officers or the members fail to perform the duties which the residue of the section imposes, but the only penalty directly expressed is that contained in the initial clause just noted. No inference is, however, to be drawn from this, that the residue of the section is not to be obeyed, for certainly the duties it...