72 Mo. App. 618 | Mo. Ct. App. | 1897
Lead Opinion
CERTIFIED TO SUPREME COURT.
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
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.
“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
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 con
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
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
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.
Dissenting Opinion
(dissenting). — The theory of our government, both state and national, is, that the three co-ordinate branches thereof, viz., the judicial, legislative and executive, are supreme within their respective constitutional limits. In practice this is only true in a measure, for the courts may declare a law to be unconstitutional or set it aside because in its passage the requirements of the organic law were not observed. But this is the limit of the jurisdiction as to matters pertaining to the legislative branch of the government. Hence, in my opinion, it is without the jurisdiction of the court to interfere with or in any manner direct a legislative officer in the discharge of any duty devolving upon him, however formal it may be. In other words, legislative officers, in discharging their functions, never act ministerially. Thus it is beyond the power of a court to compel the president of the senate or the speaker of the house to sign a bill. The signing is an act of legislation, and if courts can compel the performance of this act, this would be legislation on their part. This is in line with the views of the supreme court in State ex rel. v. Stone, 120 Mo. 428, wherein it was held that the governor of the state could not be compelled by mandamus to perform any duty pertaining to his office. In the application of this rule it may very well be argued that there is no distinction between the position of the defendant, as president of the council, who is a statutory officer, and the presi
Thereupon one of the members of the house applied for a writ of mandamus to compel him to sign the bill and send it to the senate. The peremptory
Although it be conceded that the defendant is amenable to the writ, and that the affixing of his signature is a purely ministerial act, yet under the circumstances the circuit court properly denied the peremptory writ, for the reason that the ordinance was not read before the council on three separate days. The oral evidence clearly show this to be true. In America the writ of mandamus is demandable asa matter of right, but as many courts have decided, is “grantable at discretion,” that is, it should not be issued in cases of doubtful right.
This is the doctrine of all the cases. State ex rel.
Thus in the Gooding case, supra, the court refused to compel a county clerk to extend taxes upon the tax books when such taxes were not legally assessed. In the Forquer case, supra, it was sought to compel the defendant, who was the secretary of state, to countersign a commission issued by the governor to the relator as paymaster general of the state. The court decided that the governor had issued the commission without warrant of law, and for that reason it declined to compel the defendant to perform the ministerial act. To the same effect is Collins v. State, supra. In the case at bar the parol évidence conclusively shows that the ordinance was read but once before the council. Afterward, it was read twice by its title, and in the committee of the whole it was read by sections and amended, and on the same day was put on its final passage without engrossment and without being read before the council as such. The reading by the title is attempted to be justified on the ground that it is customary in legislative bodies to read bills by their titles, and that reading a bill by its title is in legal contemplation a reading of the bill. This is the rale in the enactment of laws by congress, and it is claimed that the practice is in vogue in the legislature 'of the state. The answer to this is that congress is free to make its own rules, and that the violation of the constitution by the state legislature furnishes no legal
For the reasons stated, I think that the judgment of the circuit court ought to be affirmed.
Rehearing
ON MOTION POE EEHEAEINO.
The attempt to dignify the office of president of the council of the city of St. Louis with that of governor of the state of Missouri, and thus bring this case within the reasoning of the opinion in State ex rel. v. Stone, 120 Mo. 428, must fail. Missouri is a sovereign state, with a constitutional form of government, which divides the functions of government into three co-ordinate branches, each independent of the other, and each prohibited from usurping the functions of the others. The city of St. Louis is not a sovereignty; it is but a political subdivision of the state invested by its charter with certain powers, among which is to pass ordinances on certain named subjects and in harmony with the constitution and laws of the state. It was chartered, not as a department of the state government or as a branch thereof, but as an auxiliary thereto. The ’power to pass ordinances is given to all the municipal corporations of the state, and in point of dignity of office the municipal officers of the city of St. Louis are not above those of any of the
If so, then a great mistake was made by the voters of St. Louis when they adopted the scheme and charter,
The motion for a rehearing with the concurrence of Judge Bond is denied.
ON MOTION TO CERTIFY TO SUPREME COURT.
It is conceded that in the performance of their official functions the legislative officers of the state are not subject to the control of the courts. This necessarily follows from the reasoning of the supreme court iu the case of State ex rel. Robb v. Stone, 120 Mo. 428. Counsel for respondent insists that the majority opinion in the present case is opposed to the decision of the supreme court in the case cited. If there is no substantial difference between the general assembly of the state and the municipal assembly of the city in respect to the making of laws, then in my opinion this contention of counsel is well founded. When I wrote the dissenting opinion, I entertained some doubt as to this proposition, for if I had been satisfied that the distinction did not exist, I would have then asked that the case be certified to the supreme court. I will now discuss the question in light of the authorities.
Judge Dillon, in his work on municipal corporations, says: “Although the proposition that the legislature of a state is alone competent to make laws, is true, yet it is also settled that it is competent for the legislature to delegate to municipal corporations the power to make by-laws and ordinances, which, when authorized, have the force, as to persons bound thereby,
The principle of this test has been often recognized and enforced by the supreme court of the state. In Taylor v. Carondelet, 22 Mo. 105, Judge Scott said: “The legislature delegated its legislative power over to the corporation, and the corporation, within the sphere of its delegated power, could act as authoritatively in relation to it as the legislature. The law-making power, in fact, made the board of trustees a miniature general assembly, and gave their ordinances on this subject, the force of laws passed by the legislature of the state.”
In speaking of city councils it was said in St. Louis v. Foster, 52 Mo. loc. cit. 515: “Their charters are their constitutions, which authorize councils to act, and a city council is a miniature general assembly, and their authorized ordinances have the force of laws passed by the legislature of the state.”
In State v. Vic DeBar, 58 Mo. loc. cit. 397, Judge Lewis said: “The municipal ordinances and the state statutes are from a common source of authority. One class presents it in a delegated, and the other in a direct form, hut it is the power of the state which speaks in both.”
In R. R. v. R. R., 105 Mo. loc. cit. 575, Judge Black said: “Authorized ordinances, duly enacted, have the force and effect of laws, etc.” '
In Jackson v. R. R., 118 Mo. loc. cit. 218, 219, Judge G-antt said: “It is well established that the residents within a municipality must take notice of the ordinances, and it is frequently stated that ordinances have the force and effect of laws within the limits of the corporation.”
Judge Sherwood said: “But the passage of an ordinance is of course a legislative act.” * * * Moore v. Cape Girardeau, 103 Mo. loc. cit. 476.