State ex inf. Danforth v. Cason , 507 S.W.2d 405 ( 1973 )

DONNELLY, Chief Justice

(dissenting).

This is an original proceeding in quo warranto. In State ex inf. McKittrick ex rel. City of Lebanon v. Missouri Standard Telephone Co., 337 Mo. 642, 656, 85 S.W.2d 613, 620 (Banc 1935), this Court said: “It is well established that this court may properly exercise a judicial discretion in granting or refusing a judgment of ouster in a quo warranto proceeding. * * * The public good is the element chiefly to be considered as a guide to the court in the exercise of its discretionary authority. * * (Emphasis mine).

The substance of this proceeding is a contest for power between the executive and legislative departments of our state government. The principal opinion somewhat obliquely addressed itself to this fact by stating:

“We conclude that meaning and effect can be given both to Art. IV, § 10 and Art. Ill, § 18 and that there is no conflict between the two provisions. When read together, they mean that the lieutenant governor, in his capacity as president of the senate, is the presiding officer of that body and has a constitutional right to so serve, but that in presiding he must conform to procedural rules of the senate authorized and adopted pursuant to Art. Ill, § 18, to govern the conduct of the senate’s business.”

I concurred in the principal opinion because I hoped the language quoted above would resolve the controversy and enable the members of the senate to proceed to the consideration of issues eminently more deserving of their attention. However, the bickerings and posturings in the senate since the principal opinion was adopted rather forcibly demonstrate that I was wrong. The controversy continues unabated.

It is most difficult to decide cases in a vacuum and for me this has been an artificial case from the beginning. The parties have not seen fit to enlighten this Court as to whether any conduct on the part of the Lieutenant Governor precipitated his ouster by respondent from the chair of the senate on June 15, 1973. Therefore, the Court has no way of knowing whether respondent’s action was arbitrary or resulted from a failure on the part of the Lieutenant Governor to conform to the desires of the senate as to how its business should be conducted on June 15, 1973. There is no evidence from which we can ascertain whether or not the Lieutenant Governor frustrated “the legislative efforts of the senate” on June 15, 1973.

I respectfully submit that the time has now come to recognize that the public has a prevailing interest in having this controversy resolved and concluded. In quo warranto, the “public good” is of paramount importance. I would withdraw the opinion adopted in this case, would appoint a master to ascertain the facts, and would then decide the essential issue on its merits and on the basis of Article II, § 1 of the Constitution of Missouri. It reads as follows:

“The powers of government shall be divided into three distinct departments— the legislative, executive and judicial — each of which shall be confided to a separate magistracy, and no person, or collection of persons, charged with the exercise of powers properly belonging to one of those departments, shall exercise any power properly belonging to either of the others, except in the instances in this constitution expressly directed or permitted.”

I withdraw my concurrence and I dissent.

ON MOTION FOR CLARIFICATION

PER CURIAM:

As stated in the foregoing opinion, the parties were in agreement when this case was submitted that the sole and only issue to be decided was whether the lieutenant governor has a constitutional right to preside over the Missouri Senate. We held that he does and accordingly held Senate Rule 11 to be unconstitutional.

No motion for rehearing was filed by any party, but respondent did file what was denominated a motion for clarification. It stated that while our opinion seemed entirely clear that the lieutenant governor has the right to preside and in so doing is to conform to duly adopted procedural rules of the senate until such time as they may be adjudicated invalid by a court, nevertheless the lieutenant governor had taken the position that he had the right as president of the senate to rule on all points of order and to assign bills to committees, even though Senate Rules 10 and 48, adopted pursuant to Art. Ill, § 18, V.A.M.S., provide otherwise.¹ Respondent’s motion further stated that while it was his position that he has the obligation to enforce Rules 10 and 48 as well as other procedural rules until they are declared invalid, and he planned to do so, he did not want to violate the court’s order. He requested the court to supplement its opinion to the extent necessary to resolve the controversy.

After receiving written suggestions from relator and intervenor with respect to said motion, the court called for the filing of position papers and briefs by the parties and then set the matter for oral argument.

At the outset, we note that intervenor (with concurrence by relator) has itemized a considerable list of powers which he says traditionally and inherently belong to the president of the senate as the presiding officer of that body. Both intervenor and relator request the court to spell out and delineate all powers of the lieutenant governor as president of the senate, irrespective of what present senate rules provide. In response, the respondent points out that most of the duties listed by intervenor are those which intervenor presently is doing and which senate rules provide he shall do and there is no existing controversy with reference to performance of those duties other than those involved in Rules 10 and 48.

We conclude that this per curiam should be limited to a consideration of the constitutionality of Rules 10 and 48. It is not appropriate in this proceeding to do otherwise. This is quo warranto. We cannot order respondent to refrain from doing something he is not doing and has not threatened to do. Furthermore, we do not render advisory opinions, which is what we would be doing if we said that if the senate at some future time repeals some of its existing rules and then provides that the lieutenant governor as president of the senate shall not do things he presently does, such action would violate constitutional principles. Hopefully, what we said in our principal opinion, together with expansion thereon in this per curiam, will resolve the controversy and enable the parties to proceed under senate rules with orderly transaction of the business of the senate.

There is another reason why we should not reach out and undertake to decide constitutional questions which presently are not in issue. Historically, most constitutional provisions (not being easily amended) are written in broad, general terms, without undertaking to spell out specific details. As constitutional issues arise, the courts interpret and apply the broad general constitutional principles and provisions. Experience at both the national and state levels demonstrates the wisdom of this procedure. It permits the Constitution to have the flexibility needed to meet changing times and conditions. It would make no more sense for a court to write a detailed, all-inclusive itemization of powers and duties, including those not in issue, than it would for the framers of the Constitution to do so in the first instance. Accordingly, we limit this per curiam to a consideration of the constitutionality of Rules 10 and 48.

As noted in our principal opinion, ours is a government with a constitutional separation of powers between the executive, legislative and judicial branches, and no person belonging to one department may exercise a power belonging to another der partment except in those instances expressly directed or permitted by the Constitution. Art. II, § 1, V.A.M.S. The office of lieutenant governor is created by Art. IV, § 10, V.A.M.S., and he is a member of the executive branch of the government. Under Art. II, § 1, V.A.M.S., he may not exercise legislative powers except as expressly directed or permitted by provisions of the Missouri Constitution. Language permitting such incursion by the lieutenant governor is to be strictly construed. State ex rel. Cason v. Bond, 495 S.W.2d 385 (Mo. banc 1973).

Art. IV, § 10, V.A.M.S., specifically provides that in his capacity as president of the senate the lieutenant governor may debate all questions in committee of the whole and that he “shall cast the deciding vote on equal division in the senate and on joint vote of both houses.” These are the only specifically enumerated powers. In addition thereto, we have held in our principal opinion herein that his designation as president of the senate by Art. IV, § 10, V.A.M.S., also includes the right to serve as the senate’s presiding officer. When the lieutenant governor functions in that capacity, he, like any senator who may preside from time to time, is subject to the procedural rules authorized and adopted pursuant to Art. Ill, § 18, V.A. M.S.

The powers and functions referred to in Rules 10 and 48 are not given the lieutenant governor in Art. IV, § 10, V.A. M.S., or elsewhere in the Constitution. We hold Rules 10 and 48 constitutional. It follows that the lieutenant governor, while presiding in the senate, must conduct himself in accordance with Rules 10 and 48.

All concur.