The State ex rel. North & South Railway Co. v. Meier

• Decision Date: 29 March 1898
• Parties: The State ex rel. North and South Railway Company, Appellant, v. Meier
• Court: Missouri Supreme Court

45 S.W. 306

143 Mo. 439

The State ex rel. North and South Railway Company, Appellant, v. Meier

Supreme Court of Missouri

March 29, 1898

Transferred from St. Louis Court of Appeals.

Reversed and remanded (with directions).

Leverett Bell and John H. Overall for appellant.

(1) There is no conflict, apparent or real, between the decision of the court of appeals in this case and State ex rel. v Stone, 120 Mo. 428, on which the certificate of the dissenting appellate judge below was made; and the case should be remanded to the St. Louis Court of Appeals for judgment. McCarty v. O'Bryan, 137 Mo. 591; Opinion of Brace and Burgess, JJ. (2) Mandamus will lie to compel the president of the council of St. Louis to affix his signature to a bill that has passed both houses of the municipal assembly of said city. 2 R. S. 1889, p. 2095; State v. Noonan, 59 Mo.App. 523; State v Chase, 43 Mo.App. 343; State v. Francis, 95 Mo. 44; State v. Hoblitzelle, 85 Mo. 620; State v. Garesche, 65 Mo. 480; State v. Meyers, 80 Mo. 601; State v. Berg, 76 Mo. 136; State v. St. Louis School Board, 131 Mo. 505; State v. Joplin Water Works, 52 Mo.App. 312; State v. Shannon, 133 Mo. 139; State v. Flad, 23 Mo.App. 185; State v. School Board, 134 Mo. 296; Littlefield v. Newell, 85 Me. 246; State v. Monroe, 15 So. Rep. 625; State v. Barber, 34 P. 1028; State v. Elder, 31 Neb. 169; Ex parte Rickett, 24 Ala. 91; Marbury v. Madison, 1 Cranch, 137; Kendall v. U.S. 12 Pet. 524; U. S. v. Schurz, 102 U.S. 378; State v. Stone, 120 Mo. 428; Railroad v. Governor, 23 Mo. 353; State v. Governor, 39 Mo. 388; State v. Ames, 31 Minn. 440; State v. Ricord, 35 N. J. L. 396; People v. Opdyke, 40 Bard. 306; Duncan v. Louisville, 8 Bush. 98; Ex parte Echols, 39 Ala. 698; State v. Mead, 71 Mo. 266; Opinion to Senate, 9 Col. 641; Reed's Parl. Rules, sec. 86; Cushing's Manual, secs. 259 and 297-311; 1 Greenl. on Ev. [Lewis Ed.], sec. 491; Cooley Const. Lim. [6 Ed. Angell] 162; Koehler v. Hill, 60 Iowa 543; Atty-Gen'l v. Rice, 64 Mich. 385; Wise v. Bigger, 79 Va. 269; People v. Devlin, 33 N.Y. 277. (3) The question in a proceeding by mandamus whether the relator is competent to maintain the action can only be raised by demurrer to the alternative writ, and in the present case was waived by the act of defendant in answering to the merits in the court below. R. S. 1889, secs. 2043, 2047; State v. Sappington, 68 Mo. 454. (4) If the question is open to discussion the proposition is submitted that a corporation to which is granted by bill the right to construct, maintain and operate a street railway in St. Louis has sufficient interest to invoke mandamus to compel the president of the council to affix his signature to the bill after the same has passed both houses of the municipal assembly of said city. Sec. 20 art. 12; State Const.; 2 R. S., pp. 2099, 2132; Railroad v. Springfield, 85 Mo. 674; State v. Flad, 23 Mo.App. 185; State v. Murphy, 130 Mo. 10; State v. Francis, 95 Mo. 44; High Ex. Leg. Rem. [2 Ed.], secs. 431, 432, 433.

Charles Claflin Allen for respondent.

(1) The defendant is vested with a legislative discretion which is not subject to review by the courts by mandamus. Section 22, of article 3, of the city Charter, vests in the president of the council a legislative discretion which can not be controlled by mandamus. Under the charter no other city officer can perform the duties devolved by this section upon the president of the council. These duties are necessary to the valid enactment of an ordinance. They are in no sense ministerial. Where a shred or atom of discretion is vested in a public officer, that discretion is not subject to review by mandamus. "The spur of mandamus" may be applied to the officer to compel him to exercise his discretion, but can not direct what conclusion or decision or judgment shall be rendered. State ex rel. v. Gregory, 83 Mo. 123; State ex rel. v. Flad, 108 Mo. 644; State v. Governor, 39 Mo. 388; State ex rel. v. Stone, 120 Mo. 428; School District v. Gooding, 120 Mo. 67; State ex rel. v. Garesche, 65 Mo. 480; Marbury v. Madison, 1 Cranch, 137; Ex parte Echols, 39 Ala. 698; High on Ex. Rem. [3 Ed.], secs. 125 and 135; People v. Hatch, 33 Ill. 9. (2) Even if the courts have control over the defendant by mandamus they will not exercise such control in a case of this character. It is discretionary with the court in all cases whether it will issue mandamus. State ex rel. v. Railroad, 77 Mo. 143; High on Ex. Rem., sec. 9; School District v. Gooding, 120 Mo. 67; State ex rel. v. Williams, 99 Mo. 291; State ex rel. v. Newman, 91 Mo. 445; Ware v. Water Works Co., 2 Rus. & M. 470. (3) A provision in the organic law requiring every bill to be read on three different days is mandatory. Cooley's Const. Lim. [3 Ed.], p. 139; People v. Campbell, 3 Gilm. 466; McCullough v. State, 11 Ind. 427; 1 Dill. Mun. Corp., cs. 291 and 309, p. 388, note 2; In re Addison Smith, 52 N.Y. 526; In re Phillips, 60 N.Y. 16; In re Little, 60 N.Y. 343; In re Anderson, 60 N.Y. 457; In re Douglas, 46 N.Y. 42; State v. Hoboken, 38 N. J. Law, 110; State v. Smith, 22 Minn. 218. (4) Parol evidence is admissible to contradict the recitals of the journal of the council in a case of this character. 1 Dill. Mun. Corp., sec. 300; Bank v. Dandridge, 12 Wheat. 64. (5) The rule that parol evidence is not admissible to contradict a written instrument is applied only in suits between parties to that instrument; as they alone are to blame if the writing contains what was not intended or omits that which it should have contained. Greenl. on Ev. [11 Ed.], sec. 279; Dia v. Brogan, 70 Cal. 136; State ex rel. v. Maloney, 113 Mo. 367; State v. Gonce, 79 Mo. 600; State ex rel. v. Meade, 71 Mo. 268; Thompson v. Williams, 7 S. & M. 270.

Brace, J. Gantt, C. J., Robinson and Williams, JJ., concur; Sherwood, J., dissents; Burgess, J., absent; Marshall, J., not sitting.

OPINION

In Banc.

Brace J.

-- The respondent is president of the council of the city of St. Louis. On the ninth of August, 1897, an alternative writ of mandamus was issued by the circuit court, city of St. Louis, commanding the respondent to sign house bill number 59, being an ordinance granting certain rights, privileges and franchises to the relator, or show cause why he should not. To which writ, for such cause, the respondent made return, in substance, that said house bill number 59 never was read on three different days before the council of the municipal assembly as required by the charter. On the hearing it appeared from the journal that the bill was read in the council "on three different days, May 25th, May 28th and July 20," and oral testimony was introduced, over the objections of relator, tending to prove that the bill "was read at length in the council once on May 25th; by its title on May 28th, again by its title on July 13th, and at length in committee of the whole on July 20th, and that there was no other reading before its alleged passage." Thereupon the court found for the respondent, dismissed the relator's bill, rendered judgment in respondent's favor for costs, and the relator appealed to the St. Louis Court of Appeals, where the judgment of the circuit court was reversed, Judge Biggs dissenting, and deeming the decision of the majority of the court in conflict with the decision of this court in State ex rel. v. Stone, 120 Mo. 428, 25 S.W. 376, the case was certified here for determination.

In State ex rel. v. Stone it was held that mandamus will not issue to the Governor to compel the performance of any duty pertaining to his office, prescribed by law, and it is contended for respondent that the same rule applies to the president of the council of the city of St. Louis, under the requirement of the Constitution, article III, that "The powers of government shall be divided into three distinct departments -- the legislative, executive and judicial -- each of which shall be confided to a separate magistracy, and no person or collection of persons charged with the exercise of powers properly belonging to one of those departments shall exercise any power properly belonging to either of the others except in the instances in this Constitution expressly directed or permitted." The contention is that the respondent as president of the council in signing a bill passed by the municipal assembly in order that it may become an ordinance of the city, is charged with the exercise of a legislative power over which the judicial department has no control.

By the charter of the city of St. Louis its legislative power is vested in a council and a house of delegates styled the "Municipal Assembly of the City of St. Louis" (sec 1). The council consists of thirteen members, one of whom chosen on a general ticket by the qualified voters of the city for four years is "president" (secs. 2 and 8). It is further provided by the charter that "No ordinance shall be passed except by bill, and no bill shall be so amended in its passage through either house as to change its original purpose. Bills may originate in either house, and may be amended or rejected by the other, and every bill shall be read on three different days in each house. No bill shall be considered for final passage unless the same has been reported upon by a committee" . . . . (sec. 13). No bill shall become an ordinance unless on its final passage the majority of the members elected to each house vote in its favor and the vote be taken by yeas and nays and the names of the members voting for and against the same be entered on the journal (sec. 16), and when a bill shall have thus attained its final passage the charter provides that it shall not become an ordinance "until the same shall have been signed by the presiding officer of each of the two houses in open session; and...