Witherspoon v. State Ex Rel. West

^* Headnotes 1. Evidence, 22 C.J., section 975; 2. Evidence, 23 C.J., section 1904; States, 36 Cyc., p. 858; 3. Evidence, 23 C.J., section 2001; 4. Evidence, 23 C.J., section 2001; 5. Evidence, 22 C.J., section 70 (1926 Anno); 6. Appeal and Error, 4 C.J., section 3230; 7. Officers, 29 Cyc., p. 1372; States, 36 Cyc., p. 858; 8. Parliamentary Law, 29 Cyc., p. 1687; 9. States, 36 Cyc., pp. 849, 858; 10. Constitutional Law, 12 C.J., section 388; 11. Officers, 29 Cyc., p. 1373; 12. Appeal and Error, 4 C.J., section 3238. This is an information in the nature of a quo warranto to try the right of the appellant to the office of commissioner of the Mississippi levee district.

It appears from the pleadings and competent testimony that the appellant was appointed and commissioned as the commissioner of the Mississippi levee district for Washington county by Governor L.M. Russell on January 23, 1924, and that on April 5, 1924, the relator was appointed and commissioned to the same office by Governor H.L. Whitfield, who in the meantime had succeeded Governor Russell, whose term had expired. The appellant and the relator each executed proper official bonds and subscribed to the required oath of office.

The relator introduced in evidence a certified copy of certain pages of the executive journal of the Senate of the state of Mississippi for the session of 1924, certified to by the secretary of the senate, from which it appears that the appellant was appointed by Governor Russell and a resolution confirming his appointment was adopted by the Senate in a secret executive session on January 18, 1924. The ban of secrecy was removed from this executive session, but no order was made directing that the Governor be notified of the vote on the appellant's confirmation. On January 30, 1924, within the time fixed by the rules of the Senate therefor, the vote by which the resolution confirming the appellant's appointment was adopted was reconsidered by the Senate, and with its permission the appellant's name was withdrawn from the Senate by Governor Whitfield, who had then succeeded Governor Russell as Governor of the state of Mississippi and who thereupon appointed the relator, Waddy West, as commissioner of the Mississippi levee district for Washington county, which appointment the Senate confirmed.

This evidence was introduced over the objection of counsel for the appellant, the judge of the trial court stating that, while he was of the opinion that the excerpt from the journal of the Senate should be certified to by the secretary of state, he was also of the opinion that the court could take judicial notice of the contents of the journal. A certificate by the secretary of state was introduced by the appellant, from which it appears that the journal of the Senate for the session of 1924 was deposited with him by the secretary of the Senate pursuant to the provisions of section 4638, Code of 1906 (Hemingway's Code, section 7476), and that it "contains no reference to the appointment or confirmation of the appointment of either S.F. Witherspoon or Waddy West as members from Washington county, Miss., of the board of Mississippi levee commissioners."

The case was tried by the judge of the court below by agreement, without a jury, and on this evidence a judgment was rendered removing the appellant from office.

Among the appellant's contentions are:

(1) The excerpt from the Senate's journal certified to by the secretary of the Senate was not admissible in evidence, and the court below should not have taken judicial notice of the Senate's journal.

(2) Conceding the competency of the evidence thereof, the Senate was without power to reconsider the vote by which it adopted the resolution confirming the appointment of the appellant as commissioner; consequently evidence that the Senate did reconsider that vote could not affect the right of either the appellant or the relator to the office, and therefore is wholly irrelevant and immaterial.

(3) There being no competent evidence of what occurred in the Senate with reference to the appointment of either the appellant or the relator, the court below should have presumed that the commission issued to the appellant by Governor Russell was issued pursuant to a confirmation of his appointment by the Senate, and, being prior in time to that issued by Governor Whitfield to the relator, the court should have rendered judgment thereon for the appellant.

(4) If correct in either of the last two propositions, the judgment of the court below should not only be reversed but judgment final should be rendered here for the appellant.

Section 231 of the Constitution provides for an appointment of levee commissioners by the Governor "subject to the confirmation of the Senate."

Section 127 of the Constitution provides that — "All commissions shall be in the name and by the authority of the state of Mississippi, be sealed with the great seal of state, and be signed by the Governor, and attested by the secretary of state."

Section 55 of the Constitution provides that — "Both houses [of the legislature] shall, from time to time, publish journals of their proceedings, except such parts as may, in their opinion, require secrecy," etc.

Sections 3019 and 3020, Code of 1906 (Hemingway's Code, sections 5407 and 5408), provide that — "The secretary of the Senate and clerk of the House of Representatives shall keep a correct journal of the proceedings of their respective houses," — and: "Within ten days after the adjournment of the legislature, shall furnish to the board of public contracts a true copy of the journals of their respective houses, for publication, and shall file the original journals in the office of the secretary of state."

Section 4638 et seq., Code of 1906 (Hemingway's Code, section 7476 et seq.), designate the secretary of state as the custodian of the journals of the Senate, and provide for the distribution by him of the printed copies thereof.

Section 1968, Code of 1906 (Hemingway's Code, section 1628) provides that — "All public officers in this state having the charge or custody of any public books, records, papers, or writings, are authorized to certify copies of the same, which copies shall be received in evidence in all cases where the original or a sworn copy would be evidence."

This case was tried in the court below more than ten days after the adjournment of the 1924 session of the legislature; consequently the legal custodian of the Senate Journal for that session is the secretary of state, and therefore, in order for a certified copy thereof to be admissible in evidence without further proof, the certificate must be signed by him. The excerpt from the journal of the Senate certified to by its secretary was therefore not admissible in evidence, and should not have been examined by the court for information as to what occurred in the Senate, unless competent for that purpose under the judicial notice rule.

A Senate can speak only through its journal, and a confirmation by it of an appointment to office by the Governor to be effective must be set forth in its journal; consequently its journal not only may be but must be examined therefor. (Green v. Weller,32 Miss. 650; Id., 33 Miss. 735; Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825), for which purpose courts will take judicial notice thereof (Adams v. Standard Oil Co., 97 Miss. 879, 53 So. 692).

Notice and knowledge, however, are different things, and, when a court takes judicial notice of a fact it must acquire knowledge thereof in order to act upon it. This knowledge the court can acquire without being restricted in so doing by the rules of evidence "from any source of knowledge which he feels would be helpful to him, always seeking that which is most appropriate, including public official documents or records of all kinds. . . . He may resort to any public document properly authenticated, or to government publications, dictionaries, encyclopedias, geographies, or other books, periodicals, and public addresses." 23 Corpus Juris, 169; 1 Jones on Evidence, 641; Rodgers v.Kline, 56 Miss. 808, 31 Am. Rep. 389; Puckett v. State,71 Miss. 192, 14 So. 452.

In order to inform itself of the contents of the journal of the Senate, the court below had the right to examine the original journal, a copy thereof certified to by its custodian, the secretary of state (Puckett v. State, supra), or the copy thereof published under the provisions of section 3020, Code of 1906 (Hemingway's Code, section 5408). But it is said that the journal of the Senate filed with the secretary of state and published under the statute is incomplete, in that it does not contain the record of those matters which occurred in the Senate while in secret or executive session. We have been unable to find any statute or constitutional provision requiring the keeping of a separate journal of the Senate's secret or executive proceedings, or any order of the Senate at its 1924 session directing that any portion of its proceedings be withheld from publication. Section 3020, Code of 1906 (Hemingway's Code, section 5408), hereinbefore referred to, expressly requires the journals of the two legislative houses to be filed with the secretary of state, and we must presume that the secretary of the Senate complied therewith, and that the journal delivered by him to the secretary of state contains a complete record of all of the Senate's proceedings. If the journal is incomplete, or if there exists a separate journal of the secret or executive sessions of the Senate which the secretary of the Senate has not delivered to the secretary of state, that fact cannot be judicially noticed, but it must be proven in accordance with the rules of evidence. Had the secretary of the Senate not complied with this statute by delivering the journal to the secretary of state, or had the secretary of state declined to receive it, a different question would arise, and it may be that in that event the journal of which the court could take judicial notice is that remaining in the hands of the secretary of the Senate, as did the supreme court of New Mexico in the case of Earnest v. Sargent,20 N.M. 427, 150 P. 1018, as to which, however, we are not here called on to express an opinion.

It follows from the foregoing views that the court below was in error in admitting the excerpt from the journal of the Senate certified to by its secretary, either on the theory that it was competent evidence or could be examined by the court under the judicial notice rule.

Coming now to the appellant's contention that the Senate was without power to reconsider the vote by which it adopted the resolution confirming the appointment of the appellant as Commissioner: If the Senate is without power to reconsider a vote by which a resolution confirming an appointment by the Governor to office was adopted, then, if the Senate adopted a resolution confirming the appellant's appointment by Governor Russell, it will avail the relator nothing to prove that the vote by which that resolution was adopted was reconsidered by the Senate, and that the relator was thereafter appointed and confirmed. Consequently, to remand the case to the court below for a new trial in order that the relator might prove those facts would be to do a vain and useless thing so that, if it appears from this record by evidence or matter of which the court can take judicial notice that the appellant's appointment was confirmed by the Senate, then he is entitled to the office, and a judgment final to that effect should be rendered here. Section 4519, Code of 1906 (Hemingway's Code, section 3195).

The contentions of counsel for the appellant in this connection in substance are: (1) An appointment to office is complete when the last act required of the person or body vested with the appointing power has been performed. (2) When the Senate has confirmed an appointment to office, it has performed the last act required of it relative thereto, and it is without power to thereafter revoke its confirmation. Both of these contentions are undoubtedly correct, and to cite authority therefor would be supererogatory.

The question then presented is, Did the Senate confirm the appellant's appointment? Or, to express it differently, Was the affirmative vote on the resolution confirming the appellant's appointment final? For, unless that vote was final, the confirmation remained in fieri and subject to the control of the Senate.

Deliberate assemblies, in order that the will of a majority of its members may be ascertained and registered in an orderly way, must, ex necessitate rei, be governed by rules of procedure to which each member thereof must conform. In the absence of special rules of procedure adopted by such an assembly, or for it by an outside power having the right so to do, its procedure is governed by the general parliamentary law, 29 Cyc. p. 1687; Robert's Rules of Order, Revised, p. 15, one of the rules of which is that, when a motion has been made and carried or lost, it may be reconsidered on a motion therefor by a member of the assembly who voted with the prevailing side made "on the day the vote to be reconsidered was taken, or the next succeeding day, a legal holiday or recess not being counted as a day." Robert's Rules of Order, Revised, p. 156.

"All deliberative assemblies, during their session, have a right to do and undo, consider and reconsider, as often as they think proper, and it is the result only which is done."

This was said in 1823 by the supreme court of New Jersey inState v. Foster, 7 N.J. Law, 101, at page 107, wherein was involved the right of the state legislative council and General Assembly in joint meeting to reconsider a vote by which an appointment to office was claimed to have been made; the court further saying:

"In this case, so long as the joint-meeting were in session, they had a right to reconsider any question which had been before them, or any vote which they had made."

See, also, Crawford v. Gilchrist, 64 Fla. 41, 59 So. 963, Ann Cas. 1914B, 916.

The solution of this question, however, does not depend on the general parliamentary law or the power which deliberative assemblies ordinarily have to adopt rules of procedure, for the power to adopt such rules is expressly conferred on the Senate by section 55 of the Constitution, which provides that — "Each house may determine rules of its own proceedings."

Among the rules of the Senate adopted by it pursuant to the authority conferred on it by this section of the Constitution and in force January 30, 1924, are the following:

"Rule 40. When a question has been once made and carried in the affirmative or negative, it shall be in order for a Senator voting with the prevailing side to move a reconsideration thereof; but, where the yeas and nays have not been had, this restriction shall not prevail; any Senator may make the motion to reconsider.

"Rule 41. No motion to reconsider a vote shall be entertained unless it be made on the same day on which the vote was taken or on the next day on which a quorum is present.

"Rule 43. Nominations approved or rejected by the Senate shall not be returned by the secretary of the Senate to the Governor or other officer until the expiration of the next executive session, unless it be the last day of the session; or while a motion to reconsider is pending, unless otherwise ordered by the Senate."

Published Journal of the Senate of the state of Mississippi for 1922, at page 1842.

Rule 43, above set out, was amended on February 6, 1924, some days after the vote on the resolution confirming the appellant's confirmation was reconsidered. This amendment, however, adds nothing here material to the rule as it existed on January 30, 1924.

Counsel for the appellant concede the power of the Senate to "determine rules of its own proceedings" as to legislative matters, but seek to limit its power so to do in matters of an executive character, but the Constitution, to which alone we should look in this connection, contains no such limitation. How this section of the Constitution can be construed so as to exclude from it the right of the Senate to determine rules of its own proceedings in transacting business of an executive character is not apparent, for the words in which the grant of power to the Senate to adopt rules of procedure is couched are about as broad and comprehensive as the English language contains, and this court is without the right to ingraft any limitation thereon.

The legislature is a co-ordinate department of the government, and each house thereof is supreme in its own sphere, and no other department of the government has the right to interfere therewith. No reason is given for the distinction here sought to be drawn between the power of the Senate to reconsider a vote on a matter of legislative character and its power to reconsider a vote on a matter of an executive character, and it is believed that no sound reason therefor can be given. Of course, as hereinbefore stated, when the Senate confirms an appointment made by the Governor, it is without power thereafter to revoke the confirmation, but under the rules of the Senate which the Constitution authorized it to adopt no vote on the confirmation of an appointment to office is final, and consequently there is no such confirmation until a motion to reconsider an affirmative vote thereon has been disposed of adversely or the time for the making thereof has expired without such a motion being made.

The provision of section 55 of the Mississippi Constitution that "each house may determine rules of its own proceedings" was taken verbatim from article 1, section 5, of the Constitution of the United States, and, when the present Mississippi Constitution was adopted, there was, and still is, in force a rule of the Senate of the United States which provides that:

"Section 3. When a nomination is confirmed or rejected, any Senator voting in the majority may move for a reconsideration on the same day on which the vote was taken, or on either of the next two days of actual executive session of the Senate," etc.

"Section 4. Nominations confirmed or rejected by the Senate shall not be returned by the secretary to the President until the expiration of the time limited for making a motion to reconsider the same, or while a motion to reconsider is pending, unless otherwise ordered by the Senate."

Rule 38, sections 3 and 4, of the United States Senate, which will be found on page 38 of the Senate Manual containing the standing rules and orders of the United States Senate, prepared under direction of the Senate Committee on Rules, Sixty-Third Congress, and published in 1915.

While the interpretation put upon this clause of the two Constitutions by both the national and state Senates is not binding on the courts, it is, to say the least, very persuasive as to its correctness, and should not be departed from, unless manifestly wrong. And that can hardly be here said in view of the following authorities which support the right of a Senate to reconsider an affirmative vote on the confirmation of an appointment to office: Attorney-General v. Oakman, 126 Mich. 717, 86 N.W. 151, 86 Am. St. Rep. 574; People v. Davis,284 Ill. 439, 120 N.E. 326, 2 A.L.R. 1650; Allen v. Morton,94 Ark. 405, 127 S.W. 450; Baker v. Cushman, 127 Mass. 105;Putnam v. Langley, 133 Mass. 204; Wood v. Cutter,138 Mass. 149; Reed v. Deerfield, 176 Mass. 473, 57 N.E. 961;State v. Foster, 7 N.J. Law, 101; Whitney v. Van Buskirk, 40 N.J. Law, 467; Conger v. Gilmer, 32 Cal. 75.

This brings us to the appellant's third contention that, there being no competent evidence of what occurred in the Senate with reference to the appointment of either the appellant or the relator, the court below should have presumed that the commission issued to the appellant by Governor Russell was issued pursuant to a confirmation of his appointment by the Senate, and, being prior in time to that issued by Governor Whitfield to the relator, the court should have rendered judgment thereon for the appellant.

The appellant's commission is prima-facie evidence that he was regularly appointed and confirmed by the Senate, and, if his commission were the only evidence which the court below had before it of his appointment and confirmation, he would have been entitled there and would be here to a judgment in his favor. A journal of the Senate which was in session when the appellant was appointed by Governor Russell, and by which he must have been confirmed, if at all, was deposited as hereinbefore set forth by the secretary of the Senate with the secretary of state, of which journal, as also hereinbefore set forth, the court will take judicial notice, and must presume, in the absence of evidence to the contrary, that it contains all of the proceedings of the Senate. It appears from that journal, and the court was informed of that fact by the certificate of the secretary of state introduced by the appellant himself, that the Senate did not confirm the appellant's appointment. Consequently, should we render a final judgment here on the competent evidence now before us, we should be compelled to hold that the commission issued to the appellant by Governor Russell is void. Unless it be made to appear that the Senate Journal deposited with the secretary of state is incomplete, and that another portion of its journal exists from which it appears that one of them was regularly appointed and confirmed, neither the appellant nor the relator is entitled to the office. No final judgment adverse to the relator can be rendered here on any theory for the reason that, if on another trial, as hereinbefore set forth, the excerpt from the Senate Journal herein held incompetent should be properly authenticated or proven, the relator will be entitled to the office. The record simply presents a case wherein a fact necessary to support the judgment rendered was proven or made to appear by incompetent evidence, and in such a case the supreme court on appeal thereto should not decide the case as if no evidence of the fact had been introduced, but should remand the case for a new trial so that the fact may be made to appear by competent evidence. This, in so far as we are aware, is the universal rule, the justice of which is apparent here, for it is manifest that the excerpt from the Senate Journal here held to be incompetent because not properly authenticated or proven can be properly authenticated or proven on another trial.

It follows from the foregoing views that the judgment of the court below must be reversed and the case remanded.

Reversed and remanded.