State v. McBride

• Citation: 4 Mo. 303
• Parties: THE STATE v. MCBRIDE.
• Decision Date: 30 April 1836
• Court: Missouri Supreme Court

4 Mo. 303

THE STATE

v.MCBRIDE.

Supreme Court of Missouri.

April Term, 1836.

The information charges that the defendant claiming of right to act as Judge of the Circuit Court for the Second Judicial Circuit of this State, did without any legal commission or authority, exercise and transact certain business, rights, duties, &c., of the office of Circuit Judge, for said circuit, &c. The defendant pleads a commission of Judge of said Circuit Court, granted to him by the Governor of the State, on the 11th day of December, 1830. To this plea the Circuit Attorney demurs.

CHAMBERS, Circuit Attorney, for the State. This is an information in the nature of a writ of quo warranto against Priestly H. McBride, the defendant, requiring him to show cause by what authority or commission, he exercises the duties, &c., of the office of Circuit Judge of the Second Judicial Circuit. There are three counts, each of which charges a usurpation of the office of Circuit Judge, since the first day of January, 1836. To this information the defendant plead a commission from the Governor, for the office of Circuit Judge, dated the 11th day of December, 1830; and a qualification thereon, dated the 14th day of February, 1831; and concludes that by this only, he claims the right to exercise the aforesaid office. The State demurred to this plea, and offered the following reasons to sustain the demurrer. That by the Constitution of the State, this commission was vacated on the first of January, 1836; and therefore the commission does not answer the information. The constitutional provision above alluded to, is the amendment; and proposed by the seventh and passed by the eighth General Assembly, and by them promulgated as duly passed.

In support of the demurrer, I contend: First, that this amendment having been passed and promulgated by the eighth General Assembly, as a part of the Constitution (the General Assembly having the power to amend the Constitution), this court is bound to receive and give it the effect of a constitutional provision. It being an act done by the General Assembly, not in their capacity of ordinary legislation, but the exercise of sovereign authority in a conventional capacity. Authorities cited: Rawl. on Constitution, 16, 15; 3 Cond. Rep. 585; Story's Com. 134, § 178, p.24; Vattel's Law of Nations, 1 book, 63rd; Hoffman's Legal Outlines, 365; 6 Cranch, 145, 130; 1 Cranch, 165, 170; Tucker's Notes on Blacks. 13, 16, 18; Biglow's Dig. 204; 2 Dale, 308; Webster's Chandler v. Sect. of War; 1 Kent, 295, 268, 270; State Constitution.

Second, that the General Assembly, are by the law, the judges of whether all the requirements of the 12th article of the Constitution have been complied with; and that upon the enrollment of this amendment, it become a record of such complete verity, that no averment can be made against it, on the ground of its being improperly proposed, published, or passed; and that the enrollment estops this court from going behind the enrollment, and hearing any testimony upon the mode or manner of its being proposed, published or passed. That no issue can be framed which will justify this court in hearing any such testimony. Authorities: 1st Coke's Littleton, § 175; Plow. 97; Gilbert's Ev. 5; 2nd v. Evan's App. Pothier 132; 1 Cond. R. 172; Phillip's Ev. 218; 2 Bac. Ab. title Ev. F.; 1 Starkie Ev. 161, note 1, p. 165; 7 Johns. R. 38; 1 Chitty's Pl. 30.

Third, that the amendment was passed by the competent authority, and that its provisions are such as the power passing might in conformity with its powers, propose and pass, and can have an effect (to-wit: vacating the offices of the Circuit Judges), and this court are bound to give it that effect. Authorities: 3 Cond.R. 593, 4; State Con. 276; Jacob's Dic. title Amendment; Rev. Statutes 469; Bac. Ab. tit. Statute; 4 Cond. R. 544, 558, 571; 3 Cond. R. 583; Federalist, No. 84, p. 369; Gentry & Wife v. Fry, 4 Mo. 120; Kent, 236; 1 Blacks. 478; 9 Cranch, 43, 292; Webster's speech p. 197-8; 2 Blacks. Com. 36, 267-8, 271-2, also 233; Rawle, 16; Hamilton's speech on the adoption of the Federal Constitution; Randolph, same; Tucker's Notes on Blackstone, 25, 26; 2 Dallas Rep. 304; 5 Cond. Rep. 570; Tucker's Notes on Blacks. 20, in point; 1 Cond. Rep. 172; 1 Kent 266, 268, 270, 437; 5 Cond. Rep. 228; 3 Coke's Rep. 88, cited in 2 Term, 748; Revised Laws 1825, p. 267. §§ 5, 26, 27; Section Acts 1827, p. 18, §§ 4, 5, 7, 9; 4 Cond. Rep. 576-77; Tucker's Notes, 64, 48-9, note 5; Hoffman's Outlines 114, 377, 295; De Lolme on the British Constitution, 77 note; Story's Com. 134; Wilson's speech, 18, 19, 20.

Fourth. If the court say they may hear testimony concerning the action of the General Assembly, as to the proposing, publication and passage, to invalidate the amendment; I contend that they can only hear evidence upon an issue properly framed.

Fifth. That the journals of the two houses cannot be used as testimony to invalidate or deny the verity of a statute law or an amendment to the Constitution.

Sixth. If the court say they can go behind the enrollment and promulgation of the eighth General Assembly and hear testimony, and that the journals will be received as that testimony, I contend that from the journals of the two houses of the seventh and eighth General Assemblies, it will be seen that this amendment was duly proposed, published and passed. That the seventh General Assembly proposed four distinct propositions. 1st. A repeal of the present tenure of the offices of the judges. 2nd. An ouster of the incumbents of the Circuit Court bench in 1836. 3rd. A new mode for the appointment of their successors. 4th. A repeal of the tenure of the office of clerks and a new mode of appointing the same; and that of the four distinct propositions, the 2nd and 4th were adopted, and the 1st and 3rd rejected by the eighth General Assembly. Authorities--Journals of 1832 and '3, p. 84-5, 89, 159, 60, 162-3 172-4. Ibid, Senate, p. 151, 162. 172, 177-8; House, 211, 230; Senate, 199; Journals, 49, 55, 58, and following Senate, 10, 53-3, 4, 5, 59, 61 to 65, 89; House do. 155, 157, 162, 170; Senate, 125.

Bac. Abr. Construction of Statutes; Jefferson's Manual; Federalist, 253.

From all these reasons and the authorities, I insist that the court must sustain the demurrer, and give judgment of ouster against the said defendant, for his unlawful exercise of the duties of Circuit Judge.

TOMPKINS, J.

The question raised for the decision of this court is, whether at the last General Assembly, such change was made in the Constitution of this State, that on the first day of January, 1836, the defendant ceased to be Judge by virtue of the commission set out in his plea; the acts charged against him being done and performed since that time. In the 12th article of our Constitution, it is provided that the General Assembly may, at any time, propose such amendments to the Constitution as two-thirds of each house shall deem expedient: which shall be published in all the newspapers published in this State, three several times, at least twelve months before the next general election: and if, at the first session of the General Assembly after such general election, two-thirds of each house shall, by yeas and nays, ratify such proposed amendments, they shall be valid to all intents and purposes, as parts of this Constitution, provided that such proposed amendments, shall be read on three several days, in each house, as well when the same are proposed, as when they are finally ratified. At the last session of the General Assembly, certain amendments proposed by the preceding Assembly, were acted on and declared to be finally ratified. The first, and that on which the case now before this court must be decided, is as follows: “That the offices of the several judges of the Circuit Court within this State shall be vacated on the first day of January, 1836.” For the State, it is contended by the Circuit Attorney, that the proposed amendments being declared by the General Assembly to be ratified, it is not permitted to this court to look into the matter to see whether the General Assembly have pursued the power granted to them in the twelfth section of the Constitution. For the defendant, it is contended that it is the duty of the court to examine strictly, the whole matter, and that if on...