State ex rel. Register of Pub. Lands v. Auditor of Pub. Accounts

• Decision Date: 31 October 1862
• Citation: 33 Mo. 287
• Parties: STATE, ex rel. REGISTER OF PUBLIC LANDS, v. AUDITOR OF PUBLIC ACCOUNTS.
• Court: Missouri Supreme Court

33 Mo. 287

STATE, ex rel. REGISTER OF PUBLIC LANDS,

v.AUDITOR OF PUBLIC ACCOUNTS.

Supreme Court of Missouri.

October Term, 1862.

Petition for Mandamus.

[After the decision of the case of the State ex rel. Register v. Secretary of State, the General Assembly passed a resolution forbidding the auditor to issue his warrant, and application was made to the court at an adjourned term at St. Louis to obtain mandamus.]

Ryland & Son, for petitioner.

It will at once be seen that the constitutionality of the joint resolution of the General Assembly is the main question in the controversy. We contend that the joint resolution is retrospective in its operation; that it was purposely and by design made to operate retrospectively, and therefore it is a nullity.

I. There is a preliminary question. This joint resolution lacks a constitutional prerequisite. To be a law, it must pursue the form and style which our State constitution has prescribed.

Is it a law? Then it should be in the style pointed out. Our constitution, art. III, § 36, declares that “The style of the laws of this State shall be, “Be it enacted by the General Assembly of the State of Missouri.” Article IV, § 11 declares “that every resolution to which the concurrence of the Senate and House of Representatives may be necessary, except on cases of adjournment, shall be presented to the Governor, and before the same shall take effect shall be proceeded upon in the same manner as in the case of a bill.” Same article, § 10, prescribes how a bill shall become a law. The joint resolution in this case, relied upon by the auditor of public accounts, lacks this constitutional style, and this is a nullity. If this point be ruled for us, then a peremptory mandamus must issue in behalf of the petitioner.

II. This joint resolution is retrospective in its operation, was made so by design, and on purpose to deprive the petitioner of a vested right; consequently is in the teeth of the constitution, and utterly void. The bill of rights, embodied in our State constitution, § 17, of art. XIII, declares “that no ex post facto law, nor law impairing the obligation of contracts, or retrospective in its operation, can be passed.”

The petitioner is required, as an officer of this State, to perform certain arduous duties. He has executed to the State his bond, with large penalty, for the faithful performance of his official duties. The General Assembly, by its enactment, states what he, as register of lands, shall do on a particular subject, and for the performance of his duty as pointed out and required by the said enactment, the State agrees to pay him a specific sum of money. But as no money can be drawn out of our treasury except by your warrant, Mr. Auditor, we resolve that you are not to give him your warrant; that we will not pay him; we break our faith with him.

It is contrary to the well defined principle of the common law, which asserts that “ Nova constitutio futuris formam debet imponere non prœteritis.'D”' It is contrary to the maxim of the civil law, which declares that “ Nemo potest mutare consilium in alterius injuriam.” It is contrary to the current of our own decisions from our earliest judicial history to the present day--from the case of Bailey v. Gentry and Wife, in 1822, to the cases of Stevens v. Andrews, 1861.

In support of our second proposition, that this resolution is retrospective in its operation and contrary to our fundamental law, we cite the following authorities: Dast v. Van Kleeck, 7 Johnson, 477; 6 Cowan, N. Y., 642; 9 Cowan, N. Y., 641; Danks v. Quackenbaugh, 1 Coms. 129; People v. Foot, 19 Johns. 58; McKown v. Devries, 3 Barb. 196; Picquett, appellant, 5 Pick. 65; 10 Mass. 437; 11 Mass. 396; 4 Harrington, 479; 6 Barr, 507; 1 Aik. 121; Woart v. Wimick, 3 N. H. 477; 2 Show. 17, t. p.; Couch v. Jeffries, 4 Bur. 2460; Williams v. Pritchard, 4 Durn. & East, 2; Smith's Com., pp. 289, 293, 531, 540; Bailey v. Gentry and wife, 1 Mo. 164; Bumgardner v. Howard (Cir. Ct.) 4 Mo. 50; 17 Mo. 529; 31 Mo. 205; 8 Mo. 142.

Broadhead, for respondent.

In regard to the first question raised, to wit, that the joint resolution in question has not the force of law, because it is not preceded by the style “Be it enacted by the General Assembly of the State of Missouri,” prescribed by the constitution for all laws, it is submitted --

I. Our constitution provides “That the legislative power shall be vested in the General Assembly,” § 1, art. 3. Any expression, therefore, of the Legislature, within the scope of its powers, is the law. Does it matter in what particular form that will is expressed?

The clause requiring all writs to run in the name of “The State of Missouri” is just as imperative, and yet our court has decided that it is merely directory. (See Davis v. Wood, 7 Mo. 162.) Our constitution, art. IV, § 11, evidently intends to give to a joint resolution the force and effect of a law, and if there is any distinction between a joint resolution and bill, I have not been able to find it, except that, generally speaking, a resolution is intended to reach a particular case and not a class of cases. The constitution of some of the States, as New York and Wisconsin, provide that “No law shall be enacted except by bill.” (See Sedg. on Stat. Law, p. 65.)

The clause in the constitution of New York which provides “that the question upon the final passage shall be taken immediately upon the last reading, and the yeas and nays entered in the journal,” has been held to be merely directory. (4 Sel. 317.)

II. It is further submitted that the law, or joint resolution, in...