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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.] - special session recommendation required by the Constitution, before by governor.

the statute was passed, does not nulli2. A governor, in submitting a sub- fy the statute. ject to a special session of the legis- - parol proof of absence of record of lature for consideration under a con- printing. stitutional provision that he shall 4. A statute cannot be nullified for designate it in his proclamation call

failure to print amendments as ing the extra session or recommend it quired by the Constitution, by parol by special message, need not use the

evidence of absence of proof that they word "recommend" in his message, were printed. but it is sufficient if he authorize the [See 10 R. C. L. 1028; 2 R. C. L. legislature to take the question up for Supp. 1142.] consideration.

- failure to set out title in full. [See 25 R. C. L. 805.]

5. Failure of the legislative jour- failure of records to show printing nal to set .out the full title of a bill effect,

every time it was read will not invali3. Failure of the legislative rec- date the statute, where the entries are ords affirmatively to show that an sufficient to identify the bill referred amendment to a statute was printed as 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. tent are fully satisfied, whatever may

Messrs. Jesse W. Barrett, Attorney be the formula employed by the govGeneral, and Merrill E. Otis, Assist- ernor in his message, so long as the ant Attorney General, for respondent: legislature confines itself to the par

The essence of § 55 of article 4 and ticular subjects submitted. its sole intent are the limitation of Wells v. Missouri P. R. Co. 110 Mo. the legislature to fixed and definite 286, 15 L.R.A. 847, 19 S. W. 530; State subjects. Obviously the object and in- v. Rawlings, 232 Mo. 544, 134 S. W.

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530; Fleming v. Wengler, 269 Mo. 366, that the house amendments to the 190 S. W. 875; State ex rel. Rice v. bill were not "printed

for Edwards, Mo. - 241 S. W. 945. the use of the members before final Sunday is a legislative day, and the

action on such amendments" ($ 30, legislature, from the beginning of the history of the state, has regularly paid

art. 4); and (4) because of certain its members for services on that day, changes in the title during the pasState ex rel. McMurtry V. Thomp

sage of the act. Neither the proclason, 37 Mo. 176.

mation calling the extra session, nor Whether or not the sections of the the message of the governor sent in Constitution which prescribe the pro- upon the convening of the general cedure for the passage of a bill have assembly pursuant to that proclamabeen complied with is a legislative, tion, brought the subject of capital not a judicial, question. Pacific R. Co. v. Governor, 23 Mo.

punishment to the attention of that 353, 66 Am. Dec. 673; State ex rel.

body. On the 3d of July, 1919, the Schmoll v. Drabelle, 261 Mo. 515, 170

senate and house passed a concurS. W. 465; State ex rel. Frazer v. Sei

rent resolution requesting the govbel, 262 Mo. 220, 171 S. W. 69; 15 ernor, for reasons stated, to "send Columbia L. Rev. 285; 12 C. J. 740; to this general assembly a special 6 Am. & Eng. Enc. Law, 928.

and supplemental message requestThe only exception to the rule above

ing and authorizing the enactment stated is as to those sections of the

of such laws as will restore to the Constitution governing legislative pro- statute books of this state, the punceedings which provide expressly that

ishment by death a bill enacted in violation of them

.; all to the shall “not become a law;" all other

end that the safety and welfare of sections are directory merely,

the citizens of this state may be State ex rel. Schmoll v. Drabelle, 261 properly guarded and protected." Mo. 515, 170 S. W. 465; State ex rel. On the same day the governor reAtty. Gen. v. Mead, 71 Mo. 266; Cape quired to be assured that a quorum Girardeau v. Riley, 52 Mo. 428, 14 Am. of the house favorable to the proRep. 427; St. Louis v. Foster, 52 Mo. posed bill would positively agree to 513; Riesterer v. Horton Land & Lum

remain to pass it in case he subber Co. 160 Mo. 141, 61 S. W. 238;

mitted the subject-matter for conCreason v. Yardley, 272 Mo. 279, 198

sideration. S. W. 830; State ex rel. McCaffery

He wrote that if the v. Mason, 155 Mo. 486, 55 S. W. 636. assurances he required were given,

Even as to those sections which he would "be ready to take immedihave been held to be mandatory, non-· ate action.” The governor's request compliance with them, to be fatal, was complied with, and he thereupon must be affirmatively shown in the

sent his special message, as follows: journals. State ex rel. Schmoll v. Drabelle, supra; State ex rel. Aull v.

"To the Fiftieth General Assembly: Field, 119 Mo. 593, 24 S. W. 752.

"Formally responding to your James T. Blair, J., delivered the joint and concurrent resolution of opinion of the court:

this date, requesting that I submit Habeas corpus. The only ques

to you for your consideration the tions raised concern the validity of repeal of the law prohibiting capital the act of the extra session of the punishment in this state and the general assembly of 1919 (Laws restoration of capital punishment, I 1919, p. 778) whereby it was sought did not include this or any other to restore capital punishment in this subject in my call, because, as stated state. The act is assailed on the to you in my message, I did not grounds: (1) That the subject was wish to obscure the main purpose not brought before the general as- for which you were assembled, sembly by either method authorized namely, the ratification of the Woby the Constitution; (2) that the man Suffrage Amendment. You bill (Senate Bill No. 2) was not have acted very promptly on that read on three different days in subject. It is now out of the way. each house" ($ 26, art. 4); (3) "By various votes taken by both

(299 Mo. 385, 253 8. W. 356.) of your bodies, it is clear that you the amendments were printed or do not desire to legislate at this time ordered printed; that no books or upon any subject other than the one records at the office of the said printmentioned above. It has also been ing company show that any charge represented to me that your action was made against the state for the in this matter will be taken prompt- printing of these amendments, and ly. And, in view of the fact that that no clerk at the office of the the sentiment seems to be so over- printing company has any present whelmingly for a reconsideration of knowledge or recollection that these this subject, and in view of all of amendments were printed; that the circumstances, I have decided the records at the auditor's office and to accede to your request. There at the office of said printing company fore, you are hereby authorized to do show charges and payments for take up for consideration the repeal other printing for said extra sesof the statute abolishing capital sion; that Charles U. Becker, secrepunishment, and the re-enactment tary of state, is the legal custodian of such a statute in lieu thereof as of the house and senate journals you may determine.

and of the original and engrossed "Frederick D. Gardner, bills and amendments thereto and of

Governor." the enrolled bills, and that there On the same day Senate Bill No.

are no records in his custody show2 was introduced for the purpose

ing the printing of the house amend

ments 1, 2, and 3 to said Senate Bill of restoring capital punishment. It

No. 2, or that said amendments were is contended that the bill was not read the three times on three sepa

ordered printed, and that he has no

printed copies of said amendments. rate days in the senate and house. It is conceded that it was actually

“It is further stipulated and read three times, but it is urged

agreed by the parties hereto,

through their attorneys, that the atthat one of these three days was Sunday and is not to be counted for

tached pages of the house and senthat reason. With respect to the

ate journals, marked 'exhibit A,' printing of the house amendment

may be taken by the court as exact to the bill, the parties stipulated copies of the original entry of those

items in the official house and senate as follows:

journals. "That at the time of the passage “It is further stipulated and of Senate Bill No. 2, at the extra agreed that the attached copy of the session of 1919 of the general as- indorsements on the original and sembly of Missouri, the state's con- engrossed Senate Bill No. 2 marked tract for all printing was with the 'exhibit B,' and attached and filed Hugh Stephens Printing Company herewith, may be taken as a true of Jefferson City; that the records copy of said indorsements as they in the state auditor's office do not

appear upon the said original and show that the printing of the house engrossed Senate Bill No. 2.” amendments 1, 2, and 3 to said sen- The senate journal shows that the ate bill was ordered or puid for or house advised that it "had taken up charged to the state; that the rec- and passed Senate Bill No 2, with ords now in the possession of the amendments Nos. 1, 2, and 3 Hugh Stephens Printing Company adopted, in which the concurrence do not show that these amendments of the senate is respectfully rewere printed, and that the clerk of quested,” that journal also shows said printing company, who has that the senate took up each amendcharge of their records and who re- ment separately and each is set out ceived and made the tickets for legis. in ful therein. Each was separate. lative printing, has no record of the ly considered and adopted, and the printing of said amendments, and bill, as amended, was then passed by has no independent recollection that the senate.

the senate. On the same day, July 8, 1919, the governor signed the another with respect to a subject he bill. The facts relating to the title "recommends” by special message. are set out at another place.

“The general assembly does not I. Section 55 of article 4 of the have to legislate upon the special Constitution reads: "The general matter just as the governor may assembly shall have no power, when desire, or as he might indicate in convened in extra session by the an ill-advised message, but such governor, to act upon subjects other body must confine itself to the matthan those specially designated in ter submitted by the governor. It the proclamation by which the ses- cannot go beyond the matter subsion is called, or recommended by mitted."

mitted.” State ex rel. Rice v. Edspecial message to its consideration wards, Mo. 241 S. W. loc. cit. by the governor after it shall have 948. been convened."

The effect of this is to say that The subject of capital punishment whatever action upon the subject was not specially designated in the the governor may favor, the sole efproclamation by which the extra fect of his recommendation or subsession was called, and the question mission is to bring that subject is whether the special message within the legislative power as a brought it before the general assem- subject of legislation. This is the bly in a constitutional manner. The clear meaning of the section, since argument that it did not is founded it is the “subject” alone which is reupon the fact that the governor did quired to be "recommended,” before not use the word "recommend," action be taken upon it. Accordwhich appears in § 55 of article 4. ing to Webster's New International Counsel say: "Note that the gov- Dictionary, the first meaning of the ernor in said special message does word "recommend” is: “(1) To not use the words 'I recommend,' or commit; to give in charge; to con'I advise you to pass such an act,' sign, commend.” A second meaning or "There is a necessity for the pas- is like that contended for by counsage of such an act;' he merely au- sel. The French word from which thorizes the general assembly to "recommend" is derived is defined as take such action in the premises as “to commit, to intrust.” As interit saw fit. It amounted to giving preted in the Edwards Case, this permission.

There is a vast is the meaning the word "recomdifference between recommending

between recommending mend” has in $ 55. The governors that a thing be done and authorizing of the state who have called extra it or giving permission to do it." sessions have not been of the opin

Dictionary definitions in harmony ion that the use of the word "recwith the meaning of the word "rec- ommend” is essenommend” thus indicated are quoted. tial to give efficacy session-recom

Statute-special It is true that § 55 of article 4 is to a special mes- mendation by a limitation upon the powers of the sage submitting general assembly in extra session . subjects of legislation to the genand is mandatory. Wells v. Mis- eral assembly. The general assemsouri P. R. Co. 110 Mo. loc. cit. 296, bly, in extra session, has not pro297, 15 L.R.A. 847, 19 S. W. 530. ceeded on that theory. In a mesWhat it commands, however, de- sage to the extra session of 1895, pends upon what it means. The Governor Stone "called attention power it denies is the power to act

to" a certain "matter for upon any subject, unless that sub

the purpose of requesting and auject, is designated in the convening thorizing such legislation in the proclamation, or “recommended by premises as may be necessary. special message to its considera- Senate Journal of Extra Session of tion," etc. There is no implication 1895, p. 88.

1895, p. 88. In the same message, that it is necessary for the governor i with respect to other subjects, he to favor one sort of act rather than used the language: "I now submit

governor.

or "I

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(299 Mo. 385, 253 8. W. 356.) to the general assembly the ques- the effect that "effective local option providing for these deficiencies tion laws for counties, towns, and by proper legislative enactment.” cities should be enacted.” The Under the first of these an act court alluded to this as a recom(Laws 1895, Extr. Sess. p. 4) was mendation. Its effect was to compassed adding a term of court in mit to the general assembly for acCarroll county, and under the sec- tion the subject mentioned. That ond an act was passed appropriating body, under this submission, was $12,000 to pay salaries of judges authorized to deal with the subject in the eighth circuit and $3,300 to of local option as it saw fit. It. pay for printing documents ordered might have passed an act rendering by the general assembly. In his such local option laws less effective. messages to the extra session of It could not be contended that such 1907, Governor Folk used the forms: an act would have been invalid be"I hereby submit for your considera- cause out of harmony with the govtion the subjects

ernor's suggestion. State ex rel. submit for your consideration and Rice v. Edwards, supra. Yet that action the subject," etc. Senate would be the result of the theory for Journal, Extr. Sess. 1907, pp. 24, which counsel now contend, followed 25, 35, 46, 82. Pursuant to one of to its logical conclusion. The conthese submissions, a general appro- tention cannot be sustained. priation bill was passed which car- II. Section 30, of article 4, of the ried nearly $4,000,000. Responding Constitution, provides: “If a bill to another such authorization (Sen- passed by either house be returned ate Journal Extr. Sess. 1907, p. 46), thereto, amended by the other, the the general assembly enacted the house to which the same is returned Miners' Fellow Servants Law. shall cause

the amendment or Laws 1907, p. 251; Rev. Stat. 1919, amendments so received to be print§ 4233. At the first extra session ed under the same supervision as in 1921, Governor Hyde, on June provided under the next preceding 22, 1921, submitted twenty-five sub- section, for the use of the members jects for action. With respect to before final action on such amendthree of these he "recommended" ments.” certain action. In some cases he (1) In State ex rel. Aull v. Field, advanced arguments favoring desig- 119 Mo. 593, 24 S. W. 752, amendnated action, and in one he argued ments had been ordered printed, against action, but wrote that he but there was no affirmative showsubmitted “this subject to you with. ing in the journal that they were out any recommendation of mine." printed. In discussing the question In most instances he simply stated, predicated upon these facts, the "I submit to you the subject of" this court said: or that. On July 11, 1921, the gov- “While it is not to be denied that ernor submitted about a dozen other' an enactment may be overthrown subjects, using the same forms in by the recitals of the journal, when about the same proportions. In this it clearly appears the Constitution message the governor, as in the oth has been violated or ignored, still er, argues for some propositions, we do not think a mere failure of submits others without comment, the journal to show every step and argues against one “subject” required by the Constitution will submitted. In State v. Rawlings, necessarily render void the law. 232 Mo. loc. cit. 560, 134 S. W. 530, While it is provided the amendments division 2 of this court held that shall be printed under the supervi2 of the “Storing and Delivering sion of the engrossing committee, it Act" of 1907 (Laws 1907, p. 231) does not require a report as in § 29 was a proper subject for considera- to be made and spread on the jourtion and enactment under a sentence nal. When this bill was enrolled, in the governor's special message to and then signed in the presence of

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