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

72 Mo. App. 618, 1897 Mo. App. LEXIS 231

• Court: Missouri Court of Appeals
• Decided: December 21, 1897
• Status: Published

Opinions

CERTIFIED TO SUPREME COURT.

Bond, J.

The relator seeks to compel the respondent, who is president of the city council, to sign a bill which it is claimed has legally passed that body, as well as the house of delegates, and which confers upon the relator the franchise to use certain streets of St. Louis for street railroads. An alternative writ of mandamus was issued, to which respondent made return admitting his refusal to sign the bill in question, and alleging as an excuse that it had failed to receive three readings on three different days in the council, and that after amendment in the committee of the whole it was not again read. Other matters were pleaded in the return, but after issue taken thereon by reply the evidence was confined to the oné relating to the sufficiency of the reading of the bill during its passage by the city council. The journal of the house of delegates, as well as of the council, was introduced by respondent. These show that the bill duly passed the lower house and was signed by its speaker, and that it wa,s read in the upper house, as required by law, and received a majority of its votes on its final passage, but was not signed by its president. In addition to the recitals of the journal of the council, respondent introduced oral testimony showing that the bill was read at length in the council on May 25, 1897, by its title on May 28, again on July 13, and at length in the committee of the whole on July 20, at which latter date the council assembled and went into a committee of the whole for the purpose of considering it section by section, which was done, and in the course of which certain amendments were adopted, whereafter the committee rose and reported the bill to the council with recommendation that it pass, in pursuance of which the roll was called, resulting in the vote of nine members in favor of the bill and four against it. There was no adjournment or recess of the council on the twentieth of July, until after the vote on the passage of the bill, and no interruption in its session, except when it resolved itself into a committee of the whole; all of the members of the council were present during the whole time. The circuit court refused to award the peremptory writ, from which relator appeals.

MpowerMofs¿resicoSnciiofit. hoia his signac!fyaSartde°pind: construed.ereto1 There are only two questions in this case. First. Does the official character of the defendant exempt him from the writ, though the act to be performed is merely ministerial? Second. Is the act in question discretional or ministerial? If the-first inquiry is answered in the affirmative, it will not be necessary to discuss the second. The governor of this state is not amenable to mandamus for any acts of whatever nature required of him, either by the constitution or statutory law. His immunity in this respect is placed on the constitutional ground that he is the head of a co-ordinate branch of government. State ex rel. v. Stone, 120 Mo. 428. The same reasoning excludes the general assembly of the state in the discharge of its duties as such from the control of the courts by this or any other writ. But neither the case cited nor any just method of reasoning carries this privilege beyond the representatives of the executive and judicial departments of the government! The lesser functionaries of the executive department are amenable to the writ.

Neither can it be maintained that the officers of inferior legislative bodies created by statute are virtute officii beyond judicial control. It is clear, therefore, that the defendant in this case can not plead his position as speaker of the city council as a defense to this proceeding. Whether he is free from the control of mandamus, .depends, not upon his office, but upon the nature of the duties with respect to which the right to the writ is asserted. If these involve any elements of discretion, the writ of mandamus can not be used to enforce their performance. If, however, they are solely ministerial, the writ may be employed against him in the same manner that it could be invoked against all other officials refusing to discharge like duties. This brings us to a consideration of the second question propounded in this opinion.

The duties imposed upon defendant in respect to affixing his signature to ordinances adopted by the house of which he is president, are specified in the following provisions of the charter of this city:

“No bill shall become an ordinance 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 an ordinance. The bill shall then be read at length, and if no objections be made, he shall, in the 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 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, such objection shall be passed upon by the. house, and if sustained, the presiding officer shall with hold his signature.”

This section, as far as it goes, isa substantial copy of section 37, article 4, of the state constitution. Its first clause requires the signature of the presiding officers of the two houses before the bill becomes an ordinance. The corresponding clause of the state constitution has been held to impose a mandatory duty. State ex rel. The Attorney General v. Mead, 71 Mo. 269. A similar construction must govern the similar charter provision. As it is thus-seen to be mandatory it becomes necessary to ascertain its object and purpose.

A clear exposition of these is contained in the reasoning of Judge Scott in the case of R’y v. The Governor, 23 Mo. loc. cit. 364, where it is said in speaking of the constitutional requirement that the bills of the two houses of the state legislature should be signed by their respective presiding officers: “This is the mode adopted for the authentication of every bill, and furnishes the evidence of its passage by the two houses in the first instance. The governor’s signature to a bill is not required as a means or part of its authentication, but as evidence of his approval. The governor being no member of either house, and in contemplation ■ of the constitution, not being present during their deliberation, could not know whether a bill had passed the two houses or not. The constitution itself contemplated that there might be laws without the signature of the governor, and therefore the mode of authentication adopted was the evidence of the passage of all bills, in the first instance, by the two houses.”

When the above language was used, this method of authenticating bills was directory under the constitution, and to-day it is mandatory. The mere difference in the two constitutions as to the duty of performance does not change or alter the nature of the act to be performed. It was prescribed solely as a method of authentication under the former constitution, and it retains the same character under the present constitution.

The character of the acts depends upon the rea-, sons requiring it to be done, and not upon the kind of command, whether mandatory or directory, given for its performance. This is recognized by Judge Sherwood in the case of State ex rel. v. Mead, supra, loc. cit. 271, by the following language: “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.” It being clear, then, that the object of this charter requirement is to secure the authentication, or due evidence of the genuineness of an enactment of the legislative body, how can it be rationally maintained that the act of signing bills for this purpose only involves any element of legislative action. Acts of legislation and acts of authentication are essentially distinct. All the legislative faculty of the council was spent when the bill was passed after its third reading upon a yea and nay vote of the house. What remained to be done thereafter was the duty imposed on the defendant as the presiding officer of that body to attest by his signature that the bill in question was the one adopted by the house. Such attestation was no part of the enacting force; it merely certified that the' bill upon which it was placed was the one which had been subjected to that force. In other words, it recorded an antecedent fact which it in nowise caused. This being so, how can .it be. rationally urged that the speaker of the house exercises legislative discretion when a condition arises in the transaction of the business of the house requiring him to append his signature to á bill. The charter of the city specifies the conditions under which he shall perform this act. These are that no objections shall be made and sustained by the house. It will be noted that no power whatever is given to him to pass upon such objections. Their consideration is exclusively reserved for the house. If it fails to sustain them, he is still required by the charter to sign the bill. It is not pretended in the case at bar that any objections to the passage of the bill were made or sustained by the council. Under these circumstances, what judgment or discretion was left to the defendant?

He pleads in his return that his signature was withheld because the bill did not receive the three readings required by law before its final passage. Granting for the argument, but not deciding that oral evidence was properly admitted under this plea, and granting further for the discussion that such objection can now be relied on, although there was no evidence that it was made and sustained by the house when the bill was passed, let us see what was shown by such evidence. This shows that the bill was unquestionably read, as required by law, provided the mode of its reading on the day of final passage was in accordance with the charter provision, supra. On the day in question the council convened, all of its members being present, resolved itself into a committee of the whole, and as such took up the bill, read and amended it fully, section by section, and reported the bill to itself as a council, and passed it by the requisite majority. Was the sufficiency or legality of this action a question to be conclusively decided by the president of the council? By no means.

It was, under the law, a matter for decision, first, by the council or a majority of its members, while en- • gaged in the process of legislation; and secondly, after. the promulgation of the bill as an existing law, it would become a matter 'for ultimate decision by the courts in the exercise of their power of determining the validity or invalidity of all laws. The mere personal opinion of the presiding officer as to the legal insufficiency of the reading of the bill, if unsustained by the council, was no warrant for his action in refusing to sign the bill after a carrying vote on its final passage. If it rested with him to decide this question, the absurd consequence would follow that his individual notions of the law, however erroneous, would justify his action in blocking the wheels of legislation and preventing the enactment of the wisest and most useful measures. In the case at bar, the council as a body might have been called upon by due objection on the part of its president or any member to pass upon the sufficiency of the third reading of the bill. Neither he nor any other member saw fit to cause this to be done. The council as a body did in effect decide that this bill was duly read by passing it after a reading at length in the committee of the whole. That the members of the council, while so acting, termed themselves, according to parliamentary law, a committee of the whole, did not make them so sitting any less the house of which they were members. The very terms used, “committee of the whole,” show that the whole council resolved itself into a committee for the dispatch of business without in any way losing its former character. That the action of such a committee is the action of the legislative body of which it is composed, has been expressly decided. Opinion to Senate, 9 Colo. 641. The distinction between the whole house in committee and the house itself is a fanciful one, and can not be sustained in reason or parliamentary law, and no case has been cited in support of the contention.

In our opinion, the only conclusion to be drawn from the testimony in this record, oral as well as documentary, is that the bill in question was read and adopted on its final passage in strict compliance with the charter provision, whereupon a specific duty, mandatory in character, was imposed on the defendant to authenticate this bill by appending his signature thereto, the record showing that no objection to such act at the time was made and sustained by the council. He, as any other member, was privileged to make such objection and have a ruling of the house thereon. This not having been done, it became his imperative duty to attest the bill as presiding officer. Neither his opposition to the bill, nor his erroneous notions as to the sufficiency of its various readings, warranted the withholding of his signature. With the motives good or bad of the members of the council in the exercise of the sovereign power of making laws, neither the courts nor respondent have any concern. Responsibility as to all such matters belong to the people who have the power by their ballots to exclude evil doers from'legislative assemblies. If the act of a miniature legislature, like the city council, conforms' to the requirements of the law, it can not be defeated by the presiding officer of that body in the exercise of his duty to authenticate. The only way a bill, regularly passed by the two houses of the municipal assembly, may be defeated, is by the veto of the mayor or by the courts of the country after it has passed into a law. The notion that such a power is vested in the presiding officer of a legislative body, would lead to consequences destructive of a government of laws. For it is a maxim of free institutions that the faculty of legislation resides in the majority of the legislators, and if their will regularly expressed in an enactment can be thwarted by the refusal of a single member to authenticate the bill with his signature, then the power to make laws rests, not in the body of representatives selected by the people, but in the arbitrary will of a single member. Such a result can not have been contemplated when the charter was adopted defining the duties of the city law makers and their presiding officers. It is argued that the supreme court of Alabama upheld a speaker of the state legislature in withholding a bill from the governor which he thought had not received a constitutional majority. The facts of that case show that the legislature, by vote of the house, decided that it had not passed the bill in question. It was accordingly held by the supreme court of Alabama that it could not coerce the judgment of the house and its speaker. That decision rested upon the plainest constitutional principles, that the sovereign power of the law making body could not be controlled in the process of legislation, and in exercising its constitutional rights to pass and transmit bills to the governor.

In the case at bar the council did not sustain the action of the presiding officer in refusing to sign its bill, hence no question is presented as to the right to compel an officer of a legislative body to perform an action which the house decided should not be done. Moreover, the duties of the president of the city council are not prescribed by the constitution, but are the mere specifications of the statutory law. There is therefore no analogy between the facts or the principles involved in the case cited and the one at bar. Neither is there any force in the suggestion on the argument that the defendant was compelled by his oath of office to exercise legislative judgment in the performance of the manual and ministerial duty of attesting bills passed by the city council. He took the same oath of office which the other members were required to subscribe. It rightfully governed him in the discharge of his legislative duties as it presumably governed them. Doubtless it influenced him in- his vote against the bill in question, but it did not warrant his refusal to sign the bill after it was passed and when he had no further legislative duties to perform. Such a construction of the oath of office, as we have seen, would annihilate the power of the council to legislate against the will of its presiding officer.

Under the facts and circumstances in this case, we think the relator has established his right to a peremptory writ of mandamus. The judgment of the circuit court will therefore be reversed and the cause remanded, with directions to award a peremptory writ requiring the defendant to sign the bill in question. It is so ordered.

Judge Bland concurs; Judge Biggs dissents.