Ex Parte Seward , 299 Mo. 385 ( 1923 )

I am constrained to dissent in this case. I concur, however, in all of the opinion except paragraph four and the result reached. My dissent must, as a matter of course, center upon the questions ruled in this paragraph of the opinion. Of these matters in order.

I. In the modified opinion now before me, in speaking of the majority opinion in State ex rel. v. Drabelle, 261 Mo. 515, it is said: "The intent is not to re-open that controversy, though the briefs discuss it, nor to decide again that question, but to show that whatever view is taken of it the result must be the same." I did not agree to that opinion, and for reasons stated in my dissenting opinion in that case, 261 Mo. l.c. 524, and in State ex rel. v. Seibel, 262 Mo. l.c. 228. The case was reviewed in 15 Columbia Law Review, 285. In this review (speaking of the majority opinion in Drabelle's Case) it is said:

"The duty of the courts to pass on the constitutionality of legislative acts has been interpreted in many jurisdictions to include the necessity of looking behind enrolled bills to see that the legislators have, in their procedure, complied with constitutional requirements. [Opinion of the Justices (1858),35 N.H. 579; Rode v. Phelps (1890), 80 Mich. 598; State v. Nashville Baseball Club (1913), 127 Tenn. 292.] But the opposite view has been taken in a very strong line of decisions, which refuse to subject a law, publicly proclaimed and acted upon, to the danger of being undermined by evidence from a carelessly compiled journal. [Pacific Railroad v. Governor (1856), 23 Mo. 353; Ex parte Wrenn (1886), 63 Miss. 512; State v. Wheeler (1909),172 Ind. 578.] The better reasoned cases recognize the judicial dutyto see that constitutional requirements are observed, but acceptthe solemn assurance of the governor and presiding officers ofthe Legislature as unimpeachable evidence of the proceedings of the co-ordinate branches of government. [Field v. Clark (1892),143 U.S. 649; Lafferty v. Huffman (1896), 99 Ky. 80; Atlantic Coast Line Railroad v. State (1910), 135 Ga. 545.] Even the decisions upon which the decision in the principal case is based recognize a strong presumption in favor of the regularity of the enrolled bill, which would not be sufficiently rebutted by doubtful evidence in the journal. [State v. Frank (1901),61 Neb. 679; Missouri Ry. v. Simons (1907), 75 Kan. 130; Goff v. Rickerson (1911), 61 Fla. 29.] The principal case, in allowing conflicting evidence from the journals to impeach an enrolled bill, seems to give very little weight to this presumption."

In the present case, when the majority of this court says "the intent is not to re-open that controversy nor to decide again that question" it is an approval of the majority opinion in Drabelle's Case. A refusal to re-open a question previously decided by this court, is in legal effect an approval of the previous ruling. In this instance the approval of the majority opinion in Drabelle's Case is by six of the seven members. Even the support which I had in the dissent in the Drabelle and Seibel cases has left me. I did not then, nor do I now, agree to the views of the majority opinion in Drabelle's Case, but it is the law of this State until overruled. In the present case the majority of the court declines to re-open the question there decided. This opinion again reiterates the rule in Drabelle's Case. If that rule be the law, the present opinion does violence to the rule. There we ruled that an enrolled bill could be impeached by the entries upon the journal of the House, and that the matter was a question for the courts. In the instant case one reading of the bill was upon Sunday, and the legislative record so shows. Under the Drabelle Case the enrolled bill can be impeached by such evidence, and it is a matter for court determination, notwithstanding the provisions of Sections 37 and 38 of Article IV of the Constitution.

It is made clear by Drabelle's Case that if there were but two legal or lawful readings of the bill, and such was shown by the record, then the law never was enacted in the manner pointed out by the Constitution, and therefore invalid. In other words, if a reading upon Sunday was no reading (the reading upon Sunday being shown by the legislative records) then the law is invalid. This because six members of the present court have given the majority views in Drabelle's Case the stamp of their approval.

II. The majority in the present case adhering, as is done by the opinion, to the majority views in Drabelle's Case, supra, reach the result by ruling that although the legislative record shows one reading upon Sunday, such day is a legislative day within the meaning of Section 26 of Article IV of the Constitution, which says, "and every bill shall be read on three different days in each house."

The force of their argument is, that the Constitution does not say to the Legislature, "You shall not meet upon Sunday," and therefore Sunday is a legislative day just as are the six secular days of the week. Up to the enactment of this measure the Constitution has never been so construed by our law-makers. There have been sessions upon Sunday, which we know as a matter of history, but no legislative record of such Sunday service, so far as we can find. What was done on Sunday appears upon Saturday's record, and that kind of a record cannot be impeached. If Sunday is a legislative day in Missouri, it remained for the enactment of the law involved here to develop that fact. Never before had a Missouri Legislature deliberately adjourned over from Saturday to Sunday for legislative work upon Sunday. The mere fact that perdiem has been paid for a day upon which that body did not actually work argues nothing. The fact that such body never before, by record entry, convened upon Sunday, argues much as to the legislative construction of the Constitution. The question is not so much whether or not the Legislature is or is not prohibited (by the Constitution) from making laws upon Sunday, as it is, to what days the framers of the Constitution had in mind, when they said "and every bill shall be read on three different days." If they meant that Sunday should be counted a day for the making of laws in Missouri, then the majority views are correct. On the other hand if we give to the language its ordinary and usual import, we could not say that the framers of the Constitution of 1875 intended to say that Sunday was to be a legislative day in Christian Missouri. Had the Convention drafting the Constitution of 1875, written into that instrument what the majority rules is in fact now in it, i.e. that Sunday shall or may be a day for legislative work, the instrument would never have been adopted. Did the people who promulgated the organic law mean to say that Sunday was a working day for the Legislature of Missouri? Did they mean to say, when providing for the three separate readings of bills, one reading may be had upon Sunday, at a session duly held upon that day? We do not believe that such was ever the intent of the framers of the Constitution, nor of the people who adopted it. The words used in Section 26 of Article IV mean upon three secular days, and not otherwise. Sunday has never been considered a legislative day in Missouri. The public policy of the State from the day of its admission into the Union to the present condemns the idea of having Sunday as a legislative day in Missouri. By legislative day, I mean a day upon which the Legislature either may or must work. The Constitution must be given a reasonable construction. It is either certain or uncertain whether the Constitution intended Sunday as a legislative day in the use of the words found in Section 26 of Article IV. If certain, and the language is unambiguous, upon this point, then in construing it extraneous matters are not for consideration. If uncertain the extraneous matters can be considered.

The rule was succinctly stated in the early case of Hamilton v. St. Louis County Court, 15 Mo. l.c. 23, whereat it is said:

"If there be in the Constitution any language of doubtful import, we must, of course, look to the circumstances and condition of the people, and to the history of the instrument itself, to find the meaning of the clause in question; but where the language is plain and intelligible, and consistent with all other parts of the instrument, we cannot allow ourselves to find, in any reference to facts, out of the instrument, any authority for interpolating either a grant of power or a restriction upon power granted."

The Constitution is silent upon the matter as to whether or not Sunday is or is not a legislative day. It therefore is a matter of uncertainty as to whether or not the language of Section 26 of Article IV includes Sunday. In such case we can look to the circumstances and conditions of our people at the time the Constitution was adopted. Not only so, but the public policy of the State as it then existed is important, and this we may consider. Sunday was a day of rest and not of work under the public policy of Missouri at the adoption of the present Constitution. Such is the public policy of the State now, and such it was from the beginning. With this sidelight it cannot be said that the people intended to make Sunday an ordinary work day so far as law-making is concerned. The present opinion (not in open language, but in legal effect) so rules. It even hints that the legislator should not draw his pay for Sunday, if he does not work. This because it is urged that the Legislature recognizes Sunday as a legislative (working) day, because the members draw their pay for that day.

The Constitution, like statutes, must be considered under that rule which requires the courts to reach the real intent of the framers (the people) in giving meaning to the language up for construction. No man can read the history of this commonwealth, and say that her people, in 1875, intended to say that her legislative body must or may make her laws upon Sunday. A suggestion of such a thing would have been repudiated then as it would now. A constitutional convention is now in session. Let it put therein language making Sunday a legislative day, and their instrument will meet certain defeat at the polls.

If Sunday is, in law, a legislative day for the law now under review, it is such for all legislative purposes and for all laws. Our Constitution contemplates no such thing. The language used in Section 26, Article IV, has reference to secular days and not to Sunday. If so, there were but two constitutional readings of the bill, as appears from the legislative record, and the law is void under the Drabelle and Seibel cases, supra, which cases have now met with the approval of all the members of this court, except the writer. Without the overruling of those two cases this law, now under consideration, is void.

Something is said in the majority opinion about there being a necessity for action upon Sunday. It is not made the basis of a ruling, and could not well be made an excuse for the legislative act in this case. A mere delay of a day in passing this law could not have invoked the doctrine of taking the ox out of the ditch upon Sunday. The suggestion in brief and in opinion deserves no further notice. I therefore dissent.