*1 ESSLING. W. WILLIAM JOHN J. TODD v. EX REL. STATE (2d) 307. 128 N. W. 39,199.
1,May 1964 No. Nelson, Todd, se, and L. for John J. C. relator. pro Malone, Joseph for respondent. P. Johnson and Thomas Rogosheske, Justice. Todd,
On the of John J. this court issued a writ of petition quo war- W. Essling, William to show the directing authority respondent, ranto he the office member the Board Tax claims Appeals. him to true and us to declare be the Relator lawful holder of requests said office. 3, 1961, April On undisputed. are the Honorable
The facts Robert J. was commissioned to be a appointed member of the Sheran (hereinafter board) term Appeals Tax Board of from April March 1967. This 3, 1961, until confirmed by the resigned Mr. Sheran 1961. from the April on board on Subsequently, January October Governor respondent, and commissioned appointed Andersen William Essling, W. the remainder of the term board for of Mr. to the Sheran. On the same (cid:127)152 attested
date,- was recorded issued respondent commission 25, 1963, executed respondent January state. On secretary as mem- undertook his duties and filed the oath of office and thereafter ber of the board. session, *2 18, 1963, of the 1963
On the 28th February day communicated Andersen, letter, respondent’s appointment Governor letter, Senate, this to the senate. Pursuant Rules of the the Permanent denoted as a referred the Committee governor, from was message investigation on Taxes and Tax Laws for The committee report. 1963, held a to the hearing 28, on and voted to recommend February 1963, 1, be that confirmed. On March appointment committee “the report recommending made a written to the senate date, appointment be confirmed.” On same of the the Journal 513, p. records following proceedings: Wright, Laws, “Mr. from Committee on Taxes Tax was following referred the appointment: Member of the Board of Tax Appeals Essling, Paul, W. 1404 Lincoln Avenue St. Ramsey —William 21, County, appointed effective term January ending March 1967.
“Reports the back with same the reoommendation that appoint- ment be confirmed.
“Mr. objected Thuet to the foregoing Committee report and requested a roll call on the adoption report.” Wright
Mr. a call moved of the The roll being called, 61 senate. sena- tors from a total answered to their journal The then names. re- cords the following:
“Mr. Wright moved that further proceedings under the Call of the with, Senate dispensed be and the Sergeant-at-Arms instructed bring in the members. absent Which prevailed. motion
“The question then recurred adoption on the of the Committee re- port pertaining to William W. Essling and the called, roll being there * * were yeas and nays *. adopted.”1 was “Which Which prevailed. report motion committee There is respondent no further reference to the confirmation of Journal of the Senate for the 1963 session. 19, 1963, July legislative session, the new
On after the close of the governor, Todd, Rolvaag, relator, Karl F. John J. to fill appointed on resignation created Sheran. At the vacancy board of Mr. time, same Rolvaag respondent Governor informed he considered his appointment and the A ineffective office vacant. commission issued to relator on he August 1963, and executed1and filed the oath of office for the position same on the board to which respondent had been appointed by Governor Andersen.
This action was commenced August agree- mutual By ment, neither has party attempted powers to exercise of said office until a determination of this controversy. determinative issue resolved is right whether respondent’s
to the office is superior to relator’s. The issue is thus narrowed because Relator’s Governor Rolvaag facts. clearly entitles him to the office if has no respondent retain under his ap- *3 pointment and the senate action A thereon. determination issue that requires we first examine respondent’s status his following appoint- ment former Governor by Andersen.
The power is vested appointment governor virtue by of our constitution.2 The constitution is implemented by Minn. St. 271.01 as to the appointments of members of the Board of Tax Appeals. In so far as this section pertinent, provides: * *.* 1.
“Subdivision The board shall consist of three members, each state, of whom shall be a citizen of the appointed by governor, by * * * and and with the advice consent of the senate. * * * “Subd. shall be appointed [M]embers 2. for terms of six years, commencing at respectively, the expiration of the preceding 1 Senate, 1, 1963,pp. 513, Journal of the March 514. Const, 4, provides 2Minn. art. part: He shall have power, by and with the advice and consent appoint a state public, notaries librarian and such other officers may be provided by law.”
154 unexpired by governor Any vacancy shall be terms. for filled ** * term, by subject senate. to confirmation gover- by removed board may 3. A member of the be “Subd. him charges against notice of the only cause, nor after written (Italics supplied.) heard thereon.” an publicly opportunity a that an to fill language the statute makes clear term; to confirmation “subject must for a fixed that it is vacancy senate”; a and that member the board so cannot be re- appointed governor. Respondent moved his term at of the during pleasure statute, that including contends all con- requirements senate, his appointment by firmation of have been Relator met. contends because it has respondent’s appointment incomplete not been confirmed the senate.
Apart from the requirement
respondent’s
appointment .was
“subject
senate,”
significant
to confirmation
it is
that he re-
gubernatorial
ceived a prior
appointment,
commission was issued to
him,
filed
he
his oath
thereof,
of office
undertook the duties
his appointment was submitted to the senate for confirmation.
It appears well
Madison,
settled since
v.
Marbury
155 aas would operate a of the appointment over the recall appointee to continue in right the appointee’s removal in violation of from office cause.4 removal for the senate or subject rejection a only office to in which it was several cases In relator cites support of his position, the sen- when could a new governor held that make e.g., Bell Sampson, failed confirm a previous appointee, ate had to 575; 172 Kan. (2d) Hershberger, Driscoll v. Ky. 232 23 S. W. case, made (2d) Bell Governor Fields in 1927 493. In the P. Thereafter, the the State Textbook appointments several Commission. appointments. met in the 1928 session took no action on the but governor, was entitled holding Sampson, succeeding that Governor appointments, Kentucky Ky. 393, court to make new said 582): S. W. [2d] confirmation, Senate is not a it must nonaction [A]s
follow, give at all and effect to statute out its mani- any carry that, be confirmed at first purpose, appointments fest if session making, Senate their with the following they expire adjournment that, under may while true the statutes which offices, appointees may create their hold over until their successors arid are there is which the appointed qualified, vacancy Governor may fill.” however, case, Bell involved a
The statutory requirement the sen- such appropriate upon ate “shall take appointment at its first thereafter,” similar and the Driscoll session held case dealt with a re- Const, provides: legislature art. “The 4Minn. of this may state office, provide for the removal of inferior officers from for malfeasance or performance 271.01, of their duties.” Minn. St. nonfeasance subd. may a member of the board provides only removed for cause hearing. notice and after provide legislature power manner for the removal of Sykes City Minneapolis, exclusive. Minn.
officers
144 N.
W.
in this state creates an
statute
office to be
by appoint
filled
Where
term,
a fixed
remove at will is
ment for
not incident to
Village
appoint. State ex
rel.
Bergeron,
Chisholm v.
276,
In McChesney essentially an issue applied disposing rule was well stated and case, made governor ap- similar In that an presented. one pointment adjournment to the State Textbook Commission after again senate. Before the on the convened could act appoint- ment, governor new appointment the same revoked the made a holding one the office. In governor could not revoke the first appointment, distinguished the court between two for execu- procedures tive One appointments. must there requires confirma- tion of nomination before the officer can take office or any exercise of its functions. The other procedure permits an take of- appointee to fice and assume its duties and responsibilities In prior confirmation. regard former (232 procedure, the court said Ky. 23 S. W. 587): [2d] power of [T]he removal not is involved nominations changed
may be at will of the executive until title to the is office vested.”
In the procedure, latter the appointee— “* * * holds subject then alone to the action the Senate. His status is not that of a awaiting confirmation, nominee but that anof in- officer vested with the powers, privileges, and responsibilities of the position until Senate Aacts. recall designation of his would operate as a re- from moval office. It argued is that appointment to the office consists acts, of two separate one the Governor and one by until both have acted there is no appointment such as bring in- so, do powers two Even cumbant law. within the protection and com- once taken not and action consecutively, act but concurrently, recall.” to reconsideration pleted by subject the executive not out Duff, pointed Barrett P. the court 114 Kan. succeeding to that a new one power acquired 919): and stated Kan. 217 P. governorship, *“* * vested in the executive of the state is supreme power * * * governor. It ending. This executive is continuous—never began knows neither names nor first has persons. governor, It *6 continued since, ever and unbroken as the consti- long will continue so tution exists. that,
“It follows in respect in the offices Governor Davis question, had the same and power greater power no removal than would have been Allen possessed by Governor had he remained in of- fice.”
Likewise, Rolvaag Governor has power appoint- the same over greater ment —no or less—that Governor Andersen before had he left office.5 ex Matassarin,
State v. Griffith 114 Kan. P. rel. pre- sents facts almost identical to the facts of the before controversy this There, court. Governor Allen made several recess appointments which the senate neither rejected. confirmed nor After the adjourned, senate Governor attempted Davis to revoke the appointments and make new ones. The court said Kan. P. 932): * *
“* It that valid appears appointments made, were the journals rejection do not show a of appointees by the evidence, senate and no * * * tending rejection, to show has been produced. Assuming as we must that the appointments question were neither confirmed nor re- jected by the in the session of what senate is the effect of the that were issued by commissions the governor to the appointees after senate without action adjourned appointing them for the full term expire March, which did not until and 1924? The appointments clothed 161; (2d) (Fla.) 82 5Tappy v. State So. McChesney Sampson, (2d) 23 S. W. Ky. the offices and all the prerogatives appointees powers ate, resignation, terms named, As the senate did death subject only or removal from [*] not act upon [*] [*] terminated ' [*] office for or [*] reject by rejection cause the appointments ** *. sen- governor their offices as
made these had as a title to good officers or not appointed theirs. were They other elected officers have to but for legislature until of the commissioned to hold the next session terms un- out their term to hold years full of three are entitled they reject less the vote to them should after consideration should be ousted misconduct. The revocation attempted from office for must be of these and the of their successors appointments appointment (Barrett held Duff, supra.)” to without effect.
It is apparent contemplated that the 271.01 an ap- pointment governor. to the board rather than a nomination mere statute, this governor’s Under appointive process ap- part board, point a person commission, to submit to issue him his name for confirmation These acts senate. constitute full extent governor’s powers appointive process. The senate has to confirm fully order complete the appointive process but, under the appointment procedures followed, this power to confirm is more in the of a actually nature power to veto the appointment fact. after the Neither confirmation *7 the senate nor further by the governor was to necessary vest re- spondent with the powers and the duties of office. He actually per- formed those duties for several and months was empowered to do so until the directly, rejected indirectly, his or he appointment was removed for cause.
The record before us clearly shows that the appointment of respond- ent by Governor Andersen was complete when reported to the senate beyond and his pleasure to revoke or rescind. It is clear that equally respondent’s removal from office could not be effected except cause unless appointment his was rejected by senate, and, the therefore, that his removal was the beyond pleasure of Governor Rolvaag. Since rec- ord in no shows that way appointment rejected the sen- hold the office ate, right we a superior hold has respondent the writ discharged. must be is su- office
2. contended that his Respondent only has that his perior argues but he relator’s, vigorously title therefore, has full and, been he confirmed the senate issue, we need not determinative office. In view of our decision concerning However, upon disagreement this contention. we are in pass and, this, this claim in view we our conclusion. express inter- examining claim must Respondent’s disposed of by preting the its record of the in the senate as disclosed proceedings above, journal, as outlined to the senate’s proceedings subsequent termi- receipt governor of notice of respondent’s appointment by nated in a standing the chairman adoption report by Taxes and Tax recommending Committee on Laws confirmation. significance of light this action must be viewed in the necessarily what a member a upon senate would understand occurred read- ing journal. senate, of the journal Under the rules of the is rec- officer, ord of the proceedings kept by its chief or clerical administrative of the senate. it secretary By rule, tradition and is most ab- breviated record.6 The details are seldom proceedings reported, and it essential, occurred, in order to understand what the pro- ceedings be read reported conjunction with the rules governing pro- ceedings before a body. viewed, senate,
Correctly in adopting the committee report over objection voiced member, initially by one did no more than re- physical ceive the possession report of the from its committee and di- vest any authority further over the subject matter. This action be, was neither intended to, nor did it amount a final approval of the committee Because recommendation. of the volume and complexity of legislative proposals, legislature must investigations conduct and pro- (Rules 6See Parliamentary Jefferson’s Manual of Manual, Practice Representatives,1963) (§ 580, U. S. House of p. 277), § XLIX by which senate, under Rule Permanent Rules generally See, also, governed. Legislative Procedure, Mason’s Manual of §§ 694. par. par. *8 the committee, as A such through hearings vide committees. public agency an of Laws, only is Taxes and Tax Committee on standing and investigate to usually it and its creating function body com- delegate power A its final legislative body cannot recommend. acts have and, authorized, committee’s mittee, except especially modification, of rejection but subject no force remain to approval, immediate requiring instances parent body.7 Except in unusual basis objects operates where no member and the on the body action or consent, including of unanimous all proposals, appointments requiring consent, and investigation and advice are referred to a committee for recommendation.8 Pursuant well-established confirmed cus- rules usage, tom and reference of a committee entails any proposal .to vesting the committee and with recommend only investigate of transferring custody writing but also physical embodying proposal from the chief clerical officer of the to the chair- parent body man of the committee.9 committee, the appointment
When of was respondent referred to a as a whole could not take action until committee re- ported subject committee, returned matter the senate.10The having met and investigated, resolved to recommend A confirmation. report of written this was prepared and filed the secretary of the senate for the purpose reinvesting of with possession body subject matter, and thereupon permitting consideration the ap- pointment by entire in the membership light contents of the committee’s recommendation. When, under its rule pertaining business,11 order the item of receiving reports from com- standing reached, mittees report was read to the senate. Although the Manual, (§ 319, 140); § XI p. 7Jefferson’s Manual, §§51 Mason’s 615. Manual, § 8Mason’s Manual, 621; §§ 9Mason’s Rule Permanent Rules Senate. In the Minnesota Legislature, practice usual keep a record possession the transfer and writings referred to a committee. Manual, (§ 411, § 10Jefferson’s p. 187) XXVI (§ 437, XXXIII 204);
p. Manual, §§ Mason’s 491 and 636. 11Rule Permanent Rules of the Senate. *9 the committee details, chairman the does not set out the journal in point,, At this report. then the of the adoption moved that the acknowledge requesting he was the senate to parlance, simply the to a return of accept had its function and performed committee that a mem- subject the The fact matter for a consideration on merits. vote, the objected ber and a chair- prompted roll call requested Senate,”12 not man of the to “a does committee call move the change enlarge significance the nature of motion or the vote. the motion, effect The whether declared carried favorable action the vote, on a or a voice vote a roll call taken those under by present or same;13 “call of the Senate” is that the a namely, body accepts return of the matter subject light for consideration in the of the com- mittee’s recommendation.
Interpreting the action taken as the senate confirmation of the appointment, as respondent argues, making involves as- an erroneous that the sumption narrow question presented included motion a also consideration of or whether not respondent’s appointment should be confirmed. We find no indication in the journal whatsoever that the merits debated, of the appointment were either considered or and such an assumption would be contrary to the practice followed in conformity with the general senate’s rules.14 journal is silent as to why there
12A procedure call of the senate designed under its rules to insure that all members not required excused will be sent for and be to attend session vote. Rule Permanent Rules of the Senate. practice may 13While the not be in the followed Minnesota it not processing unusual (re adopt report motion to a committee garded unimportant relatively rarely debated) in effect and presiding to suppose officer and, body consent following the mo adopt, tion to put not question formally simply declare, but “There being objection, no it is so ordered.” Such is a common practice of the Representatives Minnesota House of senate, unlike the which, elects be generally governed by Mason’s Manual, Manual. See § Jefferson’s XXXIX (§ 491, p. 236), procedure where this is authorized. Manual, (§ 418, § 14Jefferson’s p. XXVII 193), indicates that as a general , rule such-reports placed are on the calendar, “there await action .to rules order of' Although Manual, .under business.” Mason’s for. does indicate that the use of the word adopt, “has the effect of should hence, assumption adopt; motion to the objection was to the opposition that the assume plausible be It is equally made. recommendation the committee’s upon a claim based was motion public or before investigation complete at without a arrived was opportunity notice given adequate were parties or interested believed who minority motivated heard; objection that the there was that, if to insure designed was hasty that the could thereby incoming governor change governors, to be Since office. fill the particular choice to his appointing from precluded time the at of this state that history part is now Andersen Governor contest between the election took place succeed- (who thereafter shortly Rolvaag (then office) Governor surmise, were speculation if unresolved, latter him) was still ed *10 the receiving to objection the reason for the likely is more permitted, report. a to that motion legislator understands most inexperienced the
Even is insignificant in effect since it relatively report committee adopt a of a committee rec- intended to reach merits designed neither nor the that, the support at in order to infrequent It is not all ommendation. committees, and the integrity proceeding by committee chairman legislative a the sense even adopt to committee report members vote recommendations, withholding disagree with its though they vigorously is taken. for the Moreover, assuming until final action opposition their committee’s report appointment that the action was to moment the recommendation, surely report back without a vote to the could adopt significance have more effect or than return the to appointment no to for further action. that the journal To hold shows confirma- the the a holding would tantamount adoption standing tion sense, legislative the report, in committee’s would be not an en- only committee’s recommended action dorsement but final by action While membership. many entire and, the members might agree their action, vote, intend to endorse the committee none would intend thát endorsing” report, par. 8, a states it a “serious error” move accept adopt “when it is only intended report to make the avail- at a able for consideration later date.” holding would do this his Such a constituted final on the merits. vote well-recognized legislative procedures violence to the mechanics of to afford member an designed every op- to the rules contrary would — heard from the excesses of to be and to portunity protect minority majority measure to every the final consideration —advance time when committee or committee chairman chose make report. reading
Tested what member would understand jour- from nal, the senate was not after the upon complete action remained, adoption of committee There report. required by senate,15 reached, rules of the before it could be delay 1 day and thereafter —when reached pursuant order of business and after a member only moved a consideration on merits —a final vote on the question “Will Senate advise consent to this nomina- tion?” final Customarily, senate action is then communicated to the governor. No record of such communication exists in this case.
Although has certainly legislative been held that rules are merely procedural disregarded be waived1 or may by the body creating them, this does not principle play interpreting come into what record of was, the proceedings not, shows or was It is rather done. designed test legislative validity action where the record shows a final disregard violation or Here, rules. shows that the
journal senate’s consideration of the appointment was in 15Rule provides: Permanent Rules of the “When nomina appointments tions or made require Governor confirmation *11 by the Senate have been transmitted question the final on be, every nomination shall Will the Senate advise and consent to this question put which nomination?’ shall not be on day the same on received, the nomination nor day is on which may reported by by a committee unless unanimous consent. shall, “Every upon request such nomination senator, any be referred committee, to a question and if a committee, shall arise proper as to the shall be same referred without debate to Committee on Rules Legislative Expense report and proper reference upon thereof and adoption report of such committee it shall be referred accordingly.” n
n strictconformance re- the committee where its Rule 4 to the point with port accepted. view, that reveals journal in our foregoing,
Based upon right either statutory constitutional and discharge did its not respond- this interpretation, Under reject to or the appointment. consent by to confirmation subject hold the office is right ent’s to continue to a later ses- is if at senate, possible and his removal without cause governor nomination rejected respondent’s sion the senate another that and such nomination was submitted nominated office governor the senate. Whether could provoke confirmed nominating another and the senate to choose thereby require action by such nominee and reason of respondent, between who holds office This appointment, unconfirmed raise some difficult may questions. an however, not us and should Until is before not decided. problem, removed, is his to the office sufficient to re- respondent superior discharge writ. quire discharged.
Writ
Nelson, Justice (concurring specially). disagree
I respectfully portion majority opinion which states the Senate Journal reveals that the senate did not dis- charge its constitutional statutory right either to consent to the ap- pointment reject it. question The of whether or not was a there confirmation of the appointment of respondent Board of Tax in the instant Appeals case is clearly before this court upon the record problem submitted. therefore before us and should be decided. clear, It is and the majority admits, opinion so that the appointment respondent by Governor Andersen was complete and beyond his pleas- ure to revoke when to the reported senate. It is equally clear that removal of respondent was beyond the power of Governor Rolvaag, successor, Andersen’s and his appointment is irrevocable unless it was rejected by the senate.
Minnesota’s procedure in filling a vacancy on the Board of Tax Ap- peals is one governor, instance, the first nomination; the appointee is not a mere nominee awaiting confirmation, but an officer duly appointed pursuant to statute and in- *12 the office responsibilities powers, privileges, vested with the senate subject confirmation. only which he has been appointed, States, 39, S., J. reads part: C. states, the several each the constitutions of provisions “Under and in house has to determine rules power procedure, its generally with rules are valid proceedings such case conformity constitution; not in legisla- where with the but the conflict houses to make their the purpose orderly pro- tive own rules is for business, cedure and of their and the expedition disposition fail- comply legis- ure with rules does not invalidate resolutions or such (Italics lative acts.” supplied.)
Respondent contends that his was confirmed by the senate state at the 1963 and that the session Senate Journal indi- so cates. He contends that the Minn. requirements of St. 271.01 with re- spect first, complied to confirmation were fully by action with— taken the senate tax by committee on when it February voted second, and, to recommend confirmation the action taken sen- ate as a when whole to adopt motion the committee’s report pre- vailed by vote of to 21. this disputes
Relator conclusion and contends that the senate failed comply provisions own of its Rule Permanent Rules of Senate, which reads in part: “When nominations appointments made Governor which re- quire confirmation Senate by the have been transmitted to the question be, final on every nomination shall ‘Will the senate advise and consent to this nomination?’ which question shall not put be on the same on which the day received, nomination nor on the on day which it may by a reported committee unless by unanimous consent.”
It is also contended by relator since the Senate Journal fails to show putting final question to the pursuant to Rule the Senate advise and consent A—“Will to this respond- nomination?” — legally ent was and in fact confirmed. It has held been repeatedly by the courts of this country mere failure to to some defined conform usage’ parliamentary will have members number of the requisite when
not invalidate measure. the particular agreed have required by law number whether the inquiry
The important so, expressed it is If this measure. particular agreed to *13 fact that the statutory provisions, with the not inconsistent way followed does not not been rule have every parliamentary niceties of ed.) (3 McQuillin, Corporations See, Municipal 4 act illegal. render 117, A. 168 Chace, 403 Fox ex rel. v. Pa. 13.42; Commonwealth § (2d) 569. the sen- employed by “adopt” as that the word contends also
Relator or approval senate can in no connote way context present ate in the committee because confirmation recommendation ratification Never- in Rule envisioned procedure 4. bypasses that manner in be- theless, Journal, as well as the proceedings reading of the Senate and committee, the words “confirm” tax indicates senate fore the throughout interchangeably proceedings. were used “adopt” are bodies law well-accepted principle It is a col- Cases on the are point own rules of procedure. their bound Law, are S., 3b. Such rules created Parliamentary C. § lected 67 J. and business orderly to insure conduct of legislative body disregard can or simply which makes them also waive body same Alt, 673, at ex rel. Fox App. City See State v. 26 Mo. them pleasure. 197, 1014, 109 Mo. Montgomery, 88 S. W. where the App. of Sedalia v. legislative action is not because it held that rendered invalid court own legislative body’s procedure. rules of is violative 223, 229, (SF) 54, Rules of Order Revised well pp. Robert’s as as § Procedure, 685, Legislative Manual of states that the adop- § Mason’s of a committee has the effect of report endorsing statements tion making assembly responsibility therein assume it. (1961) Third New 29, International In Webster’s Dictionary p. we used when adopt, find that to reference to deliberative means body, (for endorse and assume official responsibility “to a resolution of a committee).” Black, ed.) 70, Law Dictionary p. “adopt” word is de- accept, to,
fined follows: “To as consent and put into opera- effective
167 amendment, ordi constitution, tion; constitutional the case of a 270, 282; nance, People 42 N. Real Y. citing People, or v. by-law,” 169; (N. Y.) Norton, v. City Albany ex rel. Clark Barb. v. See, State, 164, 199, Nix, also, 200. Martin 21 Ala. App. So. 807, (2d) 562, 565; Baugh City 75 Ga. S. E. App. 80, 84, 130 E.
LaGrange, Ga. S. which, Rules Jefferson’s Manual to Rule Permanent pursuant governs of the senate when applicable not inconsistent with its rules and orders is silent the effect as to procedural rules of the of a committee re- adoption port. (SF)
Robert’s Rules Order Revised states pp. that the adoption acceptance of committee report—
“* * * has the endorsing effect of the statement and the as- making assume sembly for it. responsibility motions adopt, [*****] to accept, etc., are often used indiscrimi-
nately, one adoption any of them has the endorsing effect of actions, or adopting opinions, recommendations or resolutions sub- * * mitted committee Bitner, In ex Commonwealth 549, Tarner rel. 294 Pa. v. 144 A. 733, the court held there is no difference between motion and a resolution, that it is the substance of the corporative act, and not form, that governs. Sutherland, (3 In 1 Statutory ed.) 604, Construction the author say regard this to has effect of a violation or disregard of rules procedure:
“The decisions are nearly unanimous in holding that an act cannot invalid declared for failure of a house to observe its own rales. inquire not Courts will whether such rules have been observed in (Italics passage the act.” supplied.)
In ex Tollison, State rel. v. Lindsey 165, 100 S. 174, C. 84 S. E. 819, 821, the court held: was not what was or done determining [I]n would whole, record other any be considered as a must
the Journal be.” 274, held: Childs, 816, the court 156 So. Gray Fla. make its Legislature it is in session to empowered while
“[The] true journal history records truth and record in its speak pro- while ceedings, approved by Legislature as written and proceedings controlling are data as to session’sproceedings.” session 4, rules, It as Rule are is the uniform rule that such parliamentary or disre- procedural be waived merely They may substantive. garded and courts have no concern with their legislative body, observance. will disregard
Neither courts invalidate an ordinance enacted in See, if parliamentary usage complying Georgia with statute. South Power 513; Baumann, Co. v. Ga. Trego, 151 S. E. Kerr v. 47 Pa. 292; S., Law, J. 67 C. Parliamentary 3b and 6. §§ Alt,
State ex rel. Fox v. 26 Mo. App. involved warranto quo proceedings to determine who was the rightful Louis speaker of the St. Delegates. House of The court said:
“The rules not, the House Delegates] [of any have proper sense, force of a public law. They are in the merely nature of by-laws, prescribed for deliberative body and con- ordinary venient of its conduct proceedings. own The power that made them can them, disregard (Italics unmake them.” supplied.) Commonwealth ex Chace, Fox rel. (2d) Pa. 168 A. awas quo warranto proceeding to determine the rightful holder of the office of councilman and the important question involved con- cerned noncompliance of a legislative body with its own rules of procedure. In holding there was substantial compliance with an ap- plicable and that statute the appointment valid, reflecting the will majority, court said Pa. 168 A. 572): [2d]
“Nor is the appointment invalid because a formal resolution It not enacted. is the substance act of a governing body that all not the important, form thereof.” members that it case court also out pointed the Chace object to the violation have the legislative body alone who 572): (403 122, 168 A. Pa.
of its rules and said parliamentary [2d] Under objection procedure to the followed. No one voiced circumstances, illegal by such not be declared may court.”
The court it that mere failure to conform to some de- further made clear fined usage will not invalidate the taken parliamentary agreed when number of members have body requisite (403 119, measure, 571): on the 168 A. saying particular Pa. [2d] a matter important “The of this nature is whether inquiry law, number, as required by agreed particular to the measure. have If so, this be expressed it is not way inconsistent with the provisions, the fact that the niceties of statutory every parliamentary rule have been followed does act illegal.” not not render the McQuillin, See, 13.42; ed.) Municipal Corporations Common- 152; ex Lancaster, (Pa.) wealth v. Mayor of Watts rel. and United 1, 5, Ballin, 321, States 144 U. S. 12 Ct. S. 36 L. ed. v. Paul,
In Larsen St. City of N. 86 W. it Minn. appears that the charter of the city provided that all appointments police were be made force mayor with advice consent of the council. This court held that particular no form expressing the coun- cil’s advice or consent was required that was competent council to express its advice consent to plaintiff’s appointment n withoutdirect action and to recognize his title to the office so that it could See, not Smeltz, thereafter be questioned. Madden v. 2 Ohio Q. 168,173. Cir. (N. parte Mayor, Y.) 277,
In Ex etc. of Albany, 23 Wend.
court said: objection
“It is no in conducting the proceeding they [the city do conform council] laws established by themselves into carry effect powers upon conferred them.” Whitson, In McGraw 69 Iowa 28 N. W. a new mayor *16 170 and third second between aldermen took office
and some new had the ordinance ordinance, that and it was contended readings of an its parliamen- had adopted council enacted. The properly not been that Order, provided one of Robert’s Rules of government tary service of out- of when term fell to the ground unfinished business 633) (69 350, 28 N. W. Iowa said The court expired. going aldermen applicable, became question that the rule in it concede that if should its own one council violated said is that the most that “the could of rules,” the violation of (italics held that parliamentary supplied) in passed ordinance which an such a rule does invalidate LeMars, See, of 109 also, Mann v. City the statute. with compliance 251, 80 Iowa N. W. 609, 595, 78 S. W. Scott, 104 Mo. App. of ex City Sedalia rel. had Cush-
276, adopted that the council it had been shown where had not complied its ing’s govern parliamentary Manual to being challenged, court held: proceedings provisions with its according that to the sec- if it should be conceded [E]ven evidence, did not act on Manual the council tions of the introduced doubt the council beyond any whole record shows report, it its But had acted out did take as basis of action. even the council if Manual, harmony, it the rules did no or in contradiction of do, might legally body it more than since such bound is not act by-laws. or Such accordance its rules may, perhaps with bodies otherwise, do, (Ital- oftener than them. waive [Citations omitted.]” ics supplied.)
Relator takes apparently view that there was no action taken by the senate on the confirmation in the instant The only case. possible discrepancy observable is the failure of the Journal to Senate reflect compliance with Senate Rule 4 which the senate waive might or dis- regard complied so as it long statutory requirements. Baltimore,
In Heiskell etc. Mayor, Md. A. R. was held Am. that a municipal corporation cannot, by a rule itself, enlarge made either or diminish its own powers. Preliminary making that decision the court said Md. 4 A. 57 Am. R.311): statute or contravene the com-
“But these never rules States gave the United mon law of the land. When the Constitution of State Congress, Maryland each house of and the Constitution of right to determine its rules Assembly, to each house of General right moment such included proceeding, it was never held for a law; less any existing statute common much change claim municipal corporation guise per- can a under the power. frame their rules of such unlimited This procedure, mission to one; conceded, being must be conceded so surely by every *17 next for us to consider is whether the fix a question quorum, existing does law of the land.” contravene any “rule,”
It a distinguished is therefore clear that a from statute or ordinance, is as a a regulation adopted by defined body deliberative for the conduct of its business and its own proceedings. Armatage v. (N. Y.) 172, Fisher, 167, 364, 74 Hun 26 Y. S. N. 367.
On the distinction between and directory mandatory requirements statutes, of compliance and the effect or noncompliance such re- (Perm, ed.) 164, 12A & See, also, see Wd. Phr. quirements, et p. seq. State, 70, Lord, Frisby, (2d) 260 Minn. 108 N. W. 769. answering
In submitted questions certain governor about the state’s election the Maine laws, Supreme Court said that requirements which thing done, are of the essence of very to be and the ignoring of would practically nullify itself, the vital of purpose the statute are regarded as imperative, mandatory while those directions de- or tails which are thing done, not of the essence of the to be but are pre- a conduct, scribed with view to orderly omission of which would not rights of prejudice parties, interested are directory unless followed Questions by words positive prohibition. of Answers, 453, 124 Me. 468, In Opinion Justices, re 354, of the A.
In early an Minnesota case, ex Smith, State rel. Parker 22 Minn. 218, 223, that, this court held a where meeting council of the Duluth at city of was held which business was transacted which it only
had a right legal at a meeting, do it would if presumed, necessary, nothing contrary shown, was that all its members were pres- ent and acted. The said: court *
“* * maxim The contrary. but be presumed, will not illegality presumuntur.” is, rite acta omnia in such case of law where courts attitude of the general cases reflect following state rules have occurred procedural or parliamentary of violations assemblies: 1897, L. construed we State, 84 N. 82 Minn. Loper v. W. In title in con- to its 1894, 7869, with reference G. S. amending c. its enact- of in force at time legislature the rules of the nection with (82 Minn. stating valid, this court held The amendment ment. 651): W. 84N. mis- on account are not be defeated enactments “Legislative legislature omissions, intention takes, errors, provided statute, history and its and the title whole from the can collected referred to for purpose.” bemay London, A. Conn. New Savings State v. Bank of that each declaring provision that under constitutional
the court held determine rules its own proceedings shall legislature house of legislature for a branch necessary have all powers shall state, house of representatives the fact that the and independent free law in a matter parliamentary of its own rules or acted in violation cannot be passage its statute reviewed within clearly courts. *18 Administration, 453, 212 102 So. v. State Bd. of Goodwin Ala. In that a 718, It was claimed statute had not been because legally passed court, it had The acting the house when violated one of its rules. 719): (102 however, said So.
“* * * counsel concede that the candidly against authorities are his The rule not being required Constitution, contention. but convenience, the House for its own adopted by the fact that it may been overlooked or violated in passage have of act did im not its validity. pair [Citation omitted1.]” Territory, 297, 299, Sweitzer v. 5 Okla.
In 1094, 47 where the P. law, convicted under a defendant, gambling claimed that it had not passed been properly legislature, the court said:
173 the legis- provision requiring We no have constitutional then, read or may, manner. It particular lature read a bill any should fit, accordance its own sees either in upon deliberate bill as * * * thereof, rules, rules. making without any in violation or legislature cannot declare an act void on account “The courts govern its noncompliance procedure with rules made itself (Italics deliberations.” supplied.) State, court in cited McDonald v. 80 Wis. support position
The of its 185; 414, 187; 50 407, 50 N. Wis. N. W. State v. Ryan, W. In re 641; Gill, Brown, 151, Railway 11 S. Co. Ark. 33 S. C. E. 18, 101, 15 S. 11 L. A. W. R. 423, Price, (2d) 662, Keenan v. Idaho plaintiff 195 P. con- engrossing resolution,
tended 'that it had because an error in never passed the senate. Idaho legally provided The Constitution that each house when its own assembled should determine rules proceeding, and certain rules engrossing of the senate relative to passage joint had resolutions not been with. contended complied Plaintiff that be- cause provision, of the constitutional these rules had the force of law. Supreme said Court Idaho 669): Idaho P. [2d] cites
“Plaintiff no authorities to support such proposition, and we do it. The accept legislative houses to make their own rules is orderly for and the expedition and disposition of their A failure such comply with business. rules does not jeopardize or invalidate resolutions or acts. 59 J. 575. All C. re- as to this constitutional quired XX, amendment contained in Article Secs. 1 and and a substantial compliance therewith is sufficient. [Citation omitted.]” Club,
In State v. Cumberland 136 Tenn. 188 S. W.
585, the court said:
“So far concerns the violation of its own rules by this cannot basis furnish court’s annulment of an act. The Senate right, under has the the constitution (Cbnst. to make its own rules 12), art. section and it must be judge of those rules. All oourt do is to can ascertain whether the constitution has been complied *19 question The same further. done, we look has been cannot If this
with. way.” the same been decided states, has in other has arisen 18, 19, 11 S. 105, 15 W. Gill, 54 Ark. Co. v. Railway In ed. affirmed, 649, 15 S. Ct. L. 156 U. S. L. R. A. that: the court held
“* * * -jjje its were creatures general assembly joint rules of amend- or rescinded, enforced, suspended, maintained own, to be entirely was a matter Their observance might proper. deem ed, as it discretion, not be reviewed subject to control subject the courts.” by N. the Wisconsin State, 50 W. 80 Wis. McDonald v. con- notice of the judicial take that the courts will Court held
Supreme enough far legislature houses the two journals tents actually law was published act whether an determine in- but will not constitutional requirements with accordance passed with complied strictly or have two houses have whether the quire between its introduce the bill upon rules in procedure their own their 186): 412, 50 N. said W. passage. The court tion and final Wis. «* * * go. appears than this the courts will not When Further whether will be to ascertain passed, inquiry permitted an act was so no their own complied strictly have not with rules houses have or the two final bill, intermediate its introduction and upon procedure in their they presumption is conclusive that have done so. We passage. legislature act ever declared an void non- has no court think itself, respec- made compliance the rules or thereof, they change may suspend it or and which at tive branches adjudications, any If there are such follow them.” will. we decline to (Italics supplied.) not, records, that Rule 4
The fact in so far as the Senate Journal senate will not of observed itself invalidate a made confirmation that, the senate it is demonstrated although if disregarding its own rule, agreed nevertheless the senate adopting of the tax report recommending committee respondent’s confirmation of appoint- ment. *20 ex rel. v. in Commonwealth the court suggested
As by has been case rule in instant (Pa.) 152, the the Lancaster, 5 Watts Mayor of was disre- its authority occasion when the virtually repealed it, of break- and the act control those who had garded by the it. least a of suspension was at through it, abrogation, not an ing if indicating anyone the Senate nothing There is in the Journal of followed. to the objection voiced
When, S., Corporations, § the Municipal as stated in 62 C. J. statutory of is or charter prescribed by provisions, mode not voting law, by mode not forbidden any may adopted reasonable vote, by which insures each the and which the will member tax can be All voted the com- of ascertained. who majority fairly mittee and all who later adopt voted on motion senate to put report legally were constituted and the action taken them by officials circumstances, ought now, under the out there is be ruled because nothing to indicate with the senate compliance procedural, parlia- law, sanction, mentary rule which is without force statutory of or in- validating power under rational view the any applicable law of this state. am senate, whole,
I therefore as a opinion agreed report recommending committee confirmation of respondent’s ap- Board pointment to the of Tax Appeals when the adopt motion to as report prevailed, journal. indicated There is no merit in re- lator’s contention that senate failed to confirm because its simply journal does not show with one its compliance own procedural rules. The clear manifestation consent shown taken con- duct from which in the light of the circumstances it is reasonable for infer others to consent. The present proceedings to confirm, as shown by must, without journal, regard to Rule stand proof conclusive according confirmation to all constitutional and statutory legal re- State, See, supra. McDonald v. quirements. shnpld
It should therefore be ordered that the writ of quo warranto discharged ground that respondent’s, appointment has been confirmed the senate and is beyond pleasure governor revoke.
Knutson, Chief Justice (concurring specially). Mr. Justice Nelson. opinion
I agree or decision Justice Sheran took no in the Mr. part consideration of this case. LINE,
INDIANHEAD TRUCK INC. v. HVIDSTEN TRANSPORT, INC. (2d)
128 N. W. 39,043. 39,035,
May 1964 Nos.