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upon that point, the court says: "The
plaintiff was properly appointed as
guardian
soon after the death

of the testator. His expenditures for
her [the wife's] support are charge-
able to her estate, and may be re-
covered, as well as the bills remain-
ing unpaid, as a part of the amount
due to her under the bequest. It is
recoverable because it is due to her,

and not because the plaintiff has paid
it. As her representative, he is en-
titled to recover the reasonable
amount required for her support dur-
ing her life, together with incidental
expenses. These would include the
necessary expenses of guardianship,
and reasonable charges for personal
oversight of the ward and care for her
support."
L. S. E.

EX PARTE JAMES SEWARD.

Missouri Supreme Court (In Banc) —June 21, 1923.

(299 Mo. 385, 253 S. W. 356.)

Statute effect of reading bill on Sunday.

1. In the absence of a constitutional or statutory provision on the subject, a statute is not invalid because one of the readings made necessary by the Constitution occurred on Sunday.

[See note on this question beginning on page 676.]

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required by the Constitution, before the statute was passed, does not nullify the statute.

-parol proof of absence of record of printing.

4. A statute cannot be nullified for failure to print amendments as required by the Constitution, by parol evidence of absence of proof that they were printed.

[See 10 R. C. L. 1028; 2 R. C. L. Supp. 1142.]

- failure to set out title in full.

5. Failure of the legislative journal to set out the full title of a bill every time it was read will not invalidate the statute, where the entries are sufficient to identify the bill referred to.

(Graves, J., dissents in part.)

APPLICATION for a writ of habeas corpus to secure petitioner's release from custody to which he had been committed after conviction of murder in the first degree. Petitioner remanded.

The facts are stated in the opinion of the court.
Mr. A. L. McCawley for petitioner.
Messrs. Jesse W. Barrett, Attorney
General, and Merrill E. Otis, Assist-
ant Attorney General, for respondent:

The essence of § 55 of article 4 and its sole intent are the limitation of the legislature to fixed and definite subjects. Obviously the object and in

tent are fully satisfied, whatever may be the formula employed by the governor in his message, so long as the legislature confines itself to the particular subjects submitted.

Wells v. Missouri P. R. Co. 110 Mo. 286, 15 L.R.A. 847, 19 S. W. 530; State v. Rawlings, 232 Mo. 544, 134 S. W.

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530; Fleming v. Wengler, 269 Mo. 366, 190 S. W. 875; State ex rel. Rice v. Edwards, - Mo. -, 241 S. W. 945. Sunday is a legislative day, and the legislature, from the beginning of the history of the state, has regularly paid its members for services on that day. State ex rel. McMurtry v. Thompson, 37 Mo. 176.

Whether or not the sections of the Constitution which prescribe the procedure for the passage of a bill have been complied with is a legislative, not a judicial, question.

Pacific R. Co. v. Governor, 23 Mo. 353, 66 Am. Dec. 673; State ex rel. Schmoll v. Drabelle, 261 Mo. 515, 170 S. W. 465; State ex rel. Frazer v. Seibel, 262 Mo. 220, 171 S. W. 69; 15 Columbia L. Rev. 285; 12 C. J. 740; 6 Am. & Eng. Enc. Law, 928.

The only exception to the rule above stated is as to those sections of the Constitution governing legislative proceedings which provide expressly that a bill enacted in violation of them shall "not become a law;" all other sections are directory merely.

State ex rel. Schmoll v. Drabelle, 261 Mo. 515, 170 S. W. 465; State ex rel. Atty. Gen. v. Mead, 71 Mo. 266; Cape Girardeau v. Riley, 52 Mo. 428, 14 Am. Rep. 427; St. Louis v. Foster, 52 Mo. 513; Riesterer v. Horton Land & Lumber Co. 160 Mo. 141, 61 S. W. 238; Creason v. Yardley, 272 Mo. 279, 198 S. W. 830; State ex rel. McCaffery v. Mason, 155 Mo. 486, 55 S. W. 636.

Even as to those sections which have been held to be mandatory, noncompliance with them, to be fatal, must be affirmatively shown in the journals. State ex rel. Schmoll v. Drabelle, supra; State ex rel. Aull v. Field, 119 Mo. 593, 24 S. W. 752.

James T. Blair, J., delivered the opinion of the court:

Habeas corpus. The only questions raised concern the validity of the act of the extra session of the general assembly of 1919 (Laws 1919, p. 778) whereby it was sought to restore capital punishment in this state. The act is assailed on the grounds: (1) That the subject was not brought before the general assembly by either method authorized by the Constitution; (2) that the bill (Senate Bill No. 2) was not "read on three different days in each house" (§ 26, art. 4); (3)

that the house amendments to the bill were not "printed

. for the use of the members before final action on such amendments" (§ 30, art. 4); and (4) because of certain changes in the title during the passage of the act. Neither the proclamation calling the extra session, nor the message of the governor sent in upon the convening of the general assembly pursuant to that proclamation, brought the subject of capital punishment to the attention of that body. On the 3d of July, 1919, the senate and house passed a concurrent resolution requesting the governor, for reasons stated, to "send to this general assembly a special and supplemental message requesting and authorizing the enactment of such laws as will restore to the statute books of this state, the punishment by death

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.; all to the end that the safety and welfare of the citizens of this state may be properly guarded and protected." On the same day the governor required to be assured that a quorum of the house favorable to the proposed bill would positively agree to remain to pass it in case he submitted the subject-matter for consideration. He wrote that if the assurances he required were given, he would "be ready to take immediate action." The governor's request was complied with, and he thereupon sent his special message, as follows: "To the Fiftieth General Assembly:

"Formally responding to your joint and concurrent resolution of this date, requesting that I submit to you for your consideration the repeal of the law prohibiting capital punishment in this state and the restoration of capital punishment, I did not include this or any other subject in my call, because, as stated to you in my message, I did not wish to obscure the main purpose for which you were assembled, namely, the ratification of the Woman Suffrage Amendment. You have acted very promptly on that subject. It is now out of the way.

"By various votes taken by both

(299 Mo. 385, 253 S. W. 356.)

of your bodies, it is clear that you do not desire to legislate at this time upon any subject other than the one mentioned above. It has also been represented to me that your action in this matter will be taken promptly. And, in view of the fact that the sentiment seems to be so overwhelmingly for a reconsideration of this subject, and in view of all of the circumstances, I have decided to accede to your request. Therefore, you are hereby authorized to take up for consideration the repeal of the statute abolishing capital punishment, and the re-enactment of such a statute in lieu thereof as you may determine.

"Frederick D. Gardner,
Governor."

On the same day Senate Bill No. 2 was introduced for the purpose of restoring capital punishment. It is contended that the bill was not read the three times on three separate days in the senate and house. It is conceded that it was actually read three times, but it is urged that one of these three days was Sunday and is not to be counted for that reason. With respect to the printing of the house amendment to the bill, the parties stipulated as follows:

"That at the time of the passage of Senate Bill No. 2, at the extra session of 1919 of the general assembly of Missouri, the state's contract for all printing was with the Hugh Stephens Printing Company of Jefferson City; that the records in the state auditor's office do not show that the printing of the house amendments 1, 2, and 3 to said senate bill was ordered or paid for or charged to the state; that the records now in the possession of the Hugh Stephens Printing Company do not show that these amendments were printed, and that the clerk of said printing company, who has charge of their records and who received and made the tickets for legislative printing, has no record of the printing of said amendments, and has no independent recollection that

the amendments were printed or ordered printed; that no books or records at the office of the said printing company show that any charge was made against the state for the printing of these amendments, and that no clerk at the office of the printing company has any present knowledge or recollection that these amendments were printed; that the records at the auditor's office and at the office of said printing company do show charges and payments for other printing for said extra session; that Charles U. Becker, secretary of state, is the legal custodian of the house and senate journals and of the original and engrossed bills and amendments thereto and of the enrolled bills, and that there are no records in his custody showing the printing of the house amendments 1, 2, and 3 to said Senate Bill No. 2, or that said amendments were ordered printed, and that he has no printed copies of said amendments.

"It is further stipulated and agreed by the parties hereto, through their attorneys, that the attached pages of the house and senate journals, marked 'exhibit A,' may be taken by the court as exact copies of the original entry of those items in the official house and senate journals.

"It is further stipulated and agreed that the attached copy of the indorsements on the original and engrossed Senate Bill No. 2 marked 'exhibit B,' and attached and filed herewith, may be taken as a true copy of said indorsements as they appear upon the said original and engrossed Senate Bill No. 2."

The senate journal shows that the house advised that it "had taken up and passed Senate Bill No 2, with amendments Nos. 1, 2, and 3 adopted, in which the concurrence of the senate is respectfully requested," that journal also shows that the senate took up each amendment separately and each is set out in full therein. Each was separately considered and adopted, and the bill, as amended, was then passed by the senate. On the same day, July

8, 1919, the governor signed the bill. The facts relating to the title are set out at another place.

I. Section 55 of article 4 of the Constitution reads: "The general assembly shall have no power, when convened in extra session by the governor, to act upon subjects other than those specially designated in the proclamation by which the session is called, or recommended by special message to its consideration by the governor after it shall have been convened."

The subject of capital punishment was not specially designated in the proclamation by which the extra session was called, and the question is whether the special message brought it before the general assembly in a constitutional manner. The argument that it did not is founded upon the fact that the governor did not use the word "recommend," which appears in § 55 of article 4. Counsel say: "Note that the governor in said special message does not use the words 'I recommend,' or 'I advise you to pass such an act,' or 'There is a necessity for the passage of such an act;' he merely authorizes the general assembly to take such action in the premises as it saw fit. It amounted to giving permission.. There is a vast difference between recommending that a thing be done and authorizing it or giving permission to do it."

Dictionary definitions in harmony with the meaning of the word "recommend" thus indicated are quoted.

The

It is true that § 55 of article 4 is a limitation upon the powers of the general assembly in extra session and is mandatory. Wells v. Missouri P. R. Co. 110 Mo. loc. cit. 296, 297, 15 L.R.A. 847, 19 S. W. 530. What it commands, however, depends upon what it means. power it denies is the power to act upon any subject, unless that subject, is designated in the convening proclamation, or "recommended by special message to its consideration," etc. There is no implication that it is necessary for the governor to favor one sort of act rather than

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The effect of this is to say that whatever action upon the subject the governor may favor, the sole effect of his recommendation or submission is to bring that subject within the legislative power as a subject of legislation. This is the clear meaning of the section, since it is the "subject" alone which is required to be "recommended," before action be taken upon it. According to Webster's New International Dictionary, the first meaning of the word "recommend" is: "(1) To commit; to give in charge; to consign, commend." A second meaning is like that contended for by counsel. The French word from which "recommend" is derived is defined as "to commit, to intrust." As interpreted in the Edwards Case, this is the meaning the word "recommend" has in § 55. The governors of the state who have called extra sessions have not been of the opinion that the use of the word "recommend" is essential to give efficacy session-recomto a special mes- mendation by sage submitting subjects of legislation to the general assembly. The general assembly, in extra session, has not proceeded on that theory. In a message to the extra session of 1895, Governor Stone "called attention

Statute-special

governor.

to" a certain "matter for the purpose of requesting and authorizing such legislation in the premises as may be necessary." Senate Journal of Extra Session of 1895, p. 88. In the same message, with respect to other subjects, he used the language: "I now submit

(299 Mo. 385, 253 S. W. 356.)

to the general assembly the question providing for these deficiencies by proper legislative enactment." Under the first of these an act (Laws 1895, Extr. Sess. p. 4) was passed adding a term of court in Carroll county, and under the second an act was passed appropriating $12,000 to pay salaries of judges in the eighth circuit and $3,300 to pay for printing documents ordered by the general assembly. In his messages to the extra session of 1907, Governor Folk used the forms: "I hereby submit for your consideration the subjects or "I

submit for your consideration and action the subject," etc. Senate Journal, Extr. Sess. 1907, pp. 24, 25, 35, 46, 82. Pursuant to one of these submissions, a general appropriation bill was passed which carried nearly $4,000,000. Responding to another such authorization (Senate Journal Extr. Sess. 1907, p. 46), the general assembly enacted the Miners' Fellow Servants Law. Laws 1907, p. 251; Rev. Stat. 1919, $ 4233. At the first extra session in 1921, Governor Hyde, on June 22, 1921, submitted twenty-five subjects for action. With respect to three of these he "recommended" certain action. In some cases he advanced arguments favoring designated action, and in one he argued against action, but wrote that he submitted "this subject to you without any recommendation of mine." In most instances he simply stated, "I submit to you the subject of" this or that. On July 11, 1921, the governor submitted about a dozen other subjects, using the same forms in about the same proportions. In this message the governor, as in the other, argues for some propositions, submits others without comment, and argues against one "subject" submitted. In State v. Rawlings, 232 Mo. loc. cit. 560, 134 S. W. 530, division 2 of this court held that § 2 of the "Storing and Delivering Act" of 1907 (Laws 1907, p. 231) was a proper subject for consideration and enactment under a sentence in the governor's special message to

the effect that "effective local option laws for counties, towns, and cities should be enacted." The court alluded to this as a recommendation. Its effect was to commit to the general assembly for action the subject mentioned. That body, under this submission, was authorized to deal with the subject of local option as it saw fit. It. might have passed an act rendering such local option laws less effective. It could not be contended that such an act would have been invalid because out of harmony with the governor's suggestion. State ex rel. Rice v. Edwards, supra. Yet that would be the result of the theory for which counsel now contend, followed to its logical conclusion. The contention cannot be sustained.

II. Section 30, of article 4, of the Constitution, provides: "If a bill passed by either house be returned thereto, amended by the other, the house to which the same is returned shall cause the amendment or amendments so received to be printed under the same supervision as provided under the next preceding section, for the use of the members before final action on such amendments."

(1) In State ex rel. Aull v. Field, 119 Mo. 593, 24 S. W. 752, amendments had been ordered printed, but there was no affirmative showing in the journal that they were printed. In discussing the question predicated upon these facts, the court said:

"While it is not to be denied that an enactment may be overthrown by the recitals of the journal, when it clearly appears the Constitution has been violated or ignored, still we do not think a mere failure of the journal to show every step required by the Constitution will necessarily render void the law. While it is provided the amendments shall be printed under the supervision of the engrossing committee, it does not require a report as in § 29 to be made and spread on the journal. When this bill was enrolled, and then signed in the presence of

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