Supervisors Ramsey County v. Heenan

• Decision Date: 01 January 1858
• Citation: 2 Minn. 330
• Parties: BOARD OF SUPERVISORS OF RAMSEY COUNTY vs. EDWARD HEENAN.
• Court: Minnesota Supreme Court

2 Minn. 330

BOARD OF SUPERVISORS OF RAMSEY COUNTY vs. EDWARD HEENAN.

Supreme Court of Minnesota.

I. V. D. Heard and M. E. Ames, for petitioners.

Smith & Gilman, for respondent.

FLANDRAU, J.

The defendant is the register of deeds of Ramsey county, and this is an application for a peremptory writ of mandamus to compel him to deliver to the board of supervisors certain books and papers relating to the taxes of the county. The application is made under § 9 of the act of August 13, 1858, p. 206, Laws 1858. Against the issuing of the writ, it is urged that the act of August 13, 1858, is unconstitutional, in not having been read on three different days in each house of the legislature, and twice at length; in not having been voted for by a majority of all the members elected to each house; and in embracing more than one subject matter not expressed in its title. (Sections 13, 20, and 27, of art. 4, State Constitution.) The question is for the first time presented for judicial determination as to the force and effect of section 13 and section 20 of art. 4 of the constitution. Section 13 provides that "No law shall be passed unless voted for by a majority of all the members elected to each branch of the legislature, and the vote entered upon the journal of each house." Section 20 provides that "Every bill shall be read on three different days in each separate house, unless, in case of urgency, two-thirds of the house where each bill is depending shall deem it expedient to dispense with this rule; and no bill shall be passed by either house until it shall have been read twice at length." The subject is one of great importance in its effect upon the state, and I approach it with the sole aim of faithfully ascertaining the intention of the framers of the instrument; the consequences of their action are with them, and not with the courts. There are many provisions in constitutions and statutes which, though explicit in terms, are construed to be only directory; but this results from the nature of the particular provision, being confined to the regulation of the time or manner in which an act is to be performed, and where it is apparent that it was not designed to be operative as a condition, limitation or restriction upon the performance of the act enjoined or permitted, and must be generally governed by the nature of the subject treated of, more than by the language of the law. Clauses which are directory merely, must, in the nature of things, be much more frequent in statutes than in constitutions; because, to the former is committed the modus operandi, in minute detail, of the whole working system of the government, while the latter is confined to the more general establishment of the fundamental principles upon which, and the conditions and limitations under which, the system is to operate. Statutes command acts to be done, impose duties and obligations, and point out the road to their performance; to insure certainty and regularity throughout the country, the time when, the place where, and the manner in which the command is to be obeyed are generally particularized; but as the execution of the mandate is the principal object and aim of the law, a departure from the mode provided is often, where the public good demands it, and private rights are not interfered with in consequence of it, held not to invalidate the act, or, in other words, the provisions are declared to be directory only.

There is a very material difference between provisions of apparently similar import in statutes and constitutions, and their meaning must be determined by the application of different rules and reasons. A constitution, and especially the legislative branch of our constitution, is not a creative instrument. Beyond the establishment of the legislature, it is but a system of limitations and restrictions upon the power of that body. It commands the performance of no act by the legislature, but declares that if they do act, that action shall be in a certain manner, and within prescribed boundaries.

The general power to legislate upon all subjects within the proper province of such a body is presumed by the constitution, and it is only such matters as are designed to be withdrawn from their jurisdiction that the constitution takes especial care of. It will be conceded at once, that should a law violate any of the restrictions in the constitution pertaining to the subject matter, as by restraining the liberty of the press, denying the right of trial by jury, introducing slavery, or otherwise, it would be void; this result would, however, be solely because the legislature had exceeded its jurisdiction; if, therefore, there is no instance in which the legislature can transcend the constitutional boundaries in regard to the subject matter of a law, it can only be permitted to do so in relation to the prescribed mode of its enactment, on the supposition that the same reasons did not exist for limiting its action in this respect as obtained in the other.

I will examine whether the framers of the constitution intended the provisions of sections 13, 20 and 27, of art. 4, or any of them above cited, to be merely directory upon the legislature. This investigation will lead me to a review of the legislation as practiced previously in the territory. Such changes as are instituted by the constitution, and departures from established practices when we were acting without any constitution but that of the United States and the Organic Act, must be considered as providing for some deficiency or intended to check some abuse which existed previously in the legislative department. The courts may have recourse to legislative proceedings, rules, journals and statutes, also to contemporaneous debates and undisputed history, to enlighten themselves on these points. Previous to the constitution, a majority of either house of the legislature was a quorum to transact business; and laws could be passed by a single member voting in the affirmative, if no one voted against him; however objectionable this may have been, it was less liable to abuse in bodies composed of a small number of members than in more numerous assemblies. Each house made its own rules, and could alter them at pleasure by such vote as they should by rule provide. The power to determine the rules of proceeding in the separate houses is continued by sec. 4, art. 4, but with exceptions which are specially enumerated, among which is that "no law shall be passed unless voted for by a majority of all the members elected to each branch of the legislature, and the vote entered upon the journal of each house." Sec. 13, art. 4. This is particularly directed at the practice under the former system which would be more liable to abuse by the contemplated increase of the number of the legislators, and its observance is essential to the validity of a law. If an act fails to receive the requisite number of affirmative votes, to be evidenced by the journal, it is as fatally defective as if it had failed to receive the sanction of the executive. The effect of the provision is to count every member of the body that does not vote affirmatively as voting against the passage of the act.

The next exception to the general power to pass rules is by sec. 20, of art. 4. "Every bill shall be read on three different days in each separate house, unless in case of urgency two-thirds of the house where such bill is depending shall deem it expedient to dispense with such rule. And no bill shall be passed by either house until it shall have been previously read twice at length."

The requirement to read in each house on three different days is not imperative, but is qualified by the permission granted to change the rule by a two-third vote in cases of urgency. The houses are left free to change their rules by such vote as they may adopt on other matters, but in this respect a two-third vote is required; it is clear, therefore, that the makers of the constitution attached great importance to the provision, and greater force is given to this view from the latter clause of the section which permits no bill to pass unless read twice at length, and no power is given to the legislature to change this rule under any circumstances; we would be led to the conclusion, by these provisions standing alone, that although a case of urgency might allow a departure from the former by a two-third vote, yet no circumstances could justify a failure to read the bill twice at length, and that to give effect to a law it must be done. Secs. 21 and 11, of art. 4, place it beyond doubt that a compliance with these rules is essential to the passage of a law, and not merely directory. Sec. 21 declares that every bill shall be signed by the presiding officer of each house, and provides a punishment for refusing so to sign; and then to prevent a failure of the law in consequence of an officer not signing, which would have been the effect of the provision standing alone, it provides that "in case of such refusal, each house shall by rule provide the manner in which such bill shall be properly certified for presentation to the governor." Sec. 11, in harmony with the other provisions, declares that "every bill which shall have passed the senate and house of representatives, in conformity to the rules of each house, and the joint rules of the two houses, shall, before it becomes a law, be presented to the governor," &c. It would seem by this recognition, that the rules of the houses were designed to be placed upon the same footing with the rules incorporated in the constitution; but we will not decide anything but what is strictly within the case at bar.

From the constitution alone, I think sufficient can be gathered to show that these provisions were intended to be absolute, and that the validity of legislation should depend upon a compliance with them, as much as upon that of any other limitation or restriction contained in the instrument....