Witherspoon v. State Ex Rel. West

While agreeing that the case should be reversed and remanded because of the error of the court in admitting the certificates of R.L. Brown, secretary of the Senate, as to certain entries purporting to be entries of the journal of the Senate, I am unable to agree with some of the pronouncements in the opinion.

When I first considered the case I thought the judgment should be affirmed because in my view the last commission took precedence over the first commission because the law presumes that the appointing power properly acted. In other words, the law presumes in favor of the validity of the official action of the Governor and other officers, and this presumption extends to presuming a condition to have arisen after the first appointment warranting the second, and that still is my view if the question were determinable by the commissions alone. However, in the record is a certificate from the secretary of state saying that the journals filed in his office do not show any action on the part of the Senate with reference to the confirmation of either of the officers. Under the sections of the Constitution quoted in the majority opinion the confirmation of the Senate is essential to the validity of an appointment where it is made during a session of the Senate. The appointment of the plaintiff was made on April 4, 1924, and the legislature adjourned on April 12, 1924. Therefore the Senate was in session at the time the appointment was made, and the failure of the Senate to confirm would be fatal to the claim of the relator as failure to act would be equivalent to a rejection, and the plaintiff must recover on his own right to the office.

If there were any executive journal or other journal than the one filed in the secretary of state's office it is required to be filed there by section 3020, Code of 1906 (Hemingway's Code, section 5408), which provides:

"The secretary of the Senate and clerk of the house of representatives, 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; and shall also deliver to the secretary of state, immediately on adjournment, every document and paper relating to the proceedings of the legislature."

Under this act the journal and all other documents and papers relating to the Senate's proceedings are required to be filed with the secretary of state, and he is the legal custodian of such journals, documents, and papers.

The provision of the Constitution that the Senate shall keep a journal of its proceedings which it shall from time to time publish, except such part as may require secrecy, does not authorize the withholding from the custody of the secretary of state of any part of the senate journal, but it does authorize the Senate not to publish such parts of the journal of the Senate as in its judgment would injuriously affect the welfare of the state.

The Senate Journal is a document that might be important to the rights of the citizens or to particular persons or corporations in many instances, and such litigant would ordinarily have the right to inspect the journal and to procure it or a copy of it to be used in evidence. It would be necessary for some person to be custodian of the journal, including the secret part of the journal, and the secretary of the Senate under the law has no right to retain its custody or control after ten days after the adjournment of the legislature.

It is familiar learning that only the legal custodian of a record can give a certificate of its contents, and it was clearly erroneous to admit the certificate of the secretary of the Senate.

I fail to see how the journal is going to be corrected so as to include an alleged secret or executive part of it. In other words, it was the duty, of the secretary of the Senate to turn over to the secretary of state the entire journal, and to have a copy of all of it published, unless the Senate itself ordered certain parts not to be published, and as the journal so filed becomes a record it would not be permissible in my judgment to change its contents so as to add to or subtract from it at the instance of any person after it was formally approved and certified to the secretary of state by the proper officers.

I disagree with the view that the courts will take judicial notice of the journal of the Senate or other legislative journal. There is a conflict in the decisions of the country upon this subject, and probably the majority of the states hold that the court will take judicial notice of the journals.

In 7 Encyclopaedia of Evidence, p. 991, it is said: "Many courts hold that they will take judicial notice of the journals of the legislature, at least in so far as is necessary to determine the validity and constitutionality of the laws. And the same rule has been applied to the journals of a city council. Some courts, however, refuse to notice such journals."

In the list of cases cited under this last proposition the case of Green v. Weller, 32 Miss. 650, is cited as aligning Mississippi with that view. In the case of Green v. Weller, 32 Miss., at pages 686 and 687, the court, after discussing the legislative records and the fact that the court would take judicial notice of the Constitution as a fundamental and of its requirements, said:

"But if it was competent to show by extrinsic evidence that an act, verified and attested and enrolled according to the forms of the Constitution, had not been passed as it appeared by the record to have been passed, yet this court cannot take judicial notice of the journals of the legislature in order to ascertain the true state of facts.

"In England, the journals of the lords and commons, which are kept as memorials of their proceedings, may be proved by an examined copy; but the courts do not judicially notice them, and they do not import absolute verity, and are not conclusive of the facts stated in them, except in the case of a judgment rendered by the house of lords, as a judicial tribunal, upon appeal. 1 Phill. Ev. 406. In this country the same rule prevails, and such documents are not noticed judicially by the courts, but must be proved. 1 Greenl. Ev., sections 481, 482.

"In this state, there is no law making the journals of the two houses of the legislature evidence for any purpose, and upon no principle of common law are they such authoritative public acts as to require the court to take judicial notice of them. The Constitution, it is true, requires that each house shall keep a journal of its proceedings, and publish the same; and the act of 1833 requires that they shall be deposited and kept in the office of the secretary of state, and that they shall be printed and published. But no provision is made for any sanction to the verity and solemnity of such proceedings, because their legal character did not require any such verification."

In Swann v. Buck, 40 Miss. 268, at pages 295 and 296, the court said:

"In support of the second objection, it was urged that, as the Constitution does not mention resolutions, in prescribing the forms and ceremonies to be observed in the passage of bills, therefore a resolution is not of equal dignity with a bill, and cannot be employed to repeal a general law.

"We cannot perceive the force of this position. All legislative acts, duly enrolled, signed by the presiding officers of both houses, and approved by the governor, it appears to us, must stand on an equal footing as to dignity, and must equally prevail as the act of the sovereign power of the state, whether they be `enacted,' or only `resolved.'

"It was insisted also that by a joint rule of the two houses of the legislature joint resolutions are only required to be read on two several days, and therefore the court must presume that this resolution was passed after two readings only, and hence did not become a law. On the production of the rules of the legislature, no such rule was found to exist, and the foundation of the argument fell to the ground. But if the fact had been otherwise, we could not have indulged the presumption insisted upon, for in the case ofGreen v. Weller, 32 Miss. 650, in reference to this very question, this court, after stating the provisions of the Constitution requiring bills to be signed by the presiding officers of the two houses, and to be approved and signed by the Governor, and the statutory regulation that all bills thus authenticated shall be deposited in the office of the secretary of state, say: `When an act of the legislature has passed through these forms, which are shown upon its face to have been complied with, and it is filed in the secretary's office, it become a record, and has all the legal incidents of a record, by the rules of the common law, and all the effect, as evidence of the authenticity and validity of the act, which the parliament rolls of statutes had in England.'"

In Brady v. West, 50 Miss. 68 at pages 78, 79, the court said on this point: "Mr. Justice COOLEY, in his valuable work on Constitutional Limitations, says: `Each house keeps a journal of its proceedings, which is a public record, and of which the courts are at liberty to take judicial notice. If it should appear from these journals that any act did not receive the requisite majority, or that in respect to it the legislature did not follow any requirements of the Constitution, or that in any other respect the act was not constitutionally adopted, the courts may act upon this evidence, and adjudge the statute void.' Cooley on Constitutional Limitations, 135.

"The Constitution requires each house to keep a journal, and declares that certain facts, made essential to the passage of the legislative act, shall be stated therein. If those facts do not appear on the journal, the conclusion is that they did not transpire. The journal of each house is made up under the immediate direction and inspection of the house, and is presumed to contain a full and complete history of its proceedings, and is the proper evidence of the action of that branch, upon all matters before it. 1 Greenl. Ev., section 491, p. 538. It is clearly competent to show from the journals of either branch of the legislature that a particular act was not passed in the mode prescribed by the Constitution, and thus defeat its operation altogether. If a certain act received the constitutional assent of the body, it will appear on the face of the journal. And when a contest arises as to whether the act was thus passed, the journal may be appealed to to settle it. It is the evidence of the action of the house, and by it the act must stand or fall. It certainly was not the intention of the framers of the Constitution that the signatures of the presiding officers of the two houses, and of the executive, should furnish conclusive evidence of the passage of an act. The presumption indeed is that an act thus verified became a law pursuant to the requirements of the Constitution, but that presumption may be overthrown. If the journal is lost or destroyed, this presumption will sustain the act, for it will be contended that the proper entry was made in the journal."

In Ex parte Wren, 63 Miss. 512, 56 Am. Rep. 825, the court again reviewed the question and adopted the view that the court would not look to the journals to see whether the legislature conformed to the constitutional requirements. At pages 535 and 536 the court said:

"Undoubtedly the journals may be evidence, and may be resorted to in some cases, and must be as to some matters. They were properly looked to in Gardner v. The Collector, 6 Wallace (U.S.) 499, 18 L. Ed. 890, in the effort to fix the date of approval of a bill by the president. They must furnish the evidence that a bill returned by the Governor without his signature and with his objections was so dealt with as to become a law, for it is only by the approval by two-thirds of both houses, determined by yeas and nays entered on the journal of each house, that such a bill can become a law, and, as the Constitution so provides, and has not prescribed any means of attesting or authenticating the concurrence of those requisites to such a bill becoming a law, it rests, necessarily, on the journal, which must show that, although the bill was not signed by the Governor but returned with objections, it nevertheless became a law according to the Constitution. The case is peculiar and extraordinary, and not governed by the rules applicable to the ordinary case where the Governor signs the bill. The provision for the signing of bills by the presiding officers does not apply here, and whether the bill on reconsideration became a law may depend on those things prescribed, and which cannot be shown except by the journals of both houses. Had the Constitution provided any means of authentication of such action by the two houses as to make a bill returned by the Governor with his objections, a law, it would have been exclusive, but in the absence of such provision the journals are the memorial of the action which converts a bill returned by the Governor with his objections into a law."

Therefore I think the contents of the journals should be proved by certified copies or by the production of the original journal in the secretary of state's office.

A court has many things to judicially know and many things of which it must take judicial notice. These subjects extend far beyond the actual knowledge of any one man however wise, and to reach a conclusion he must necessarily devote time to looking up the authoritative works and learning upon the subject. I do not favor extending the judicial knowledge and notice because what might be within the convenient reach of this court might not be accessible to the courts of original jurisdiction, yet such courts would have to judicially know whatever we judicially know and would have to judicially notice whatever we may judicially notice.

Coming now to the main question as to whether the Senate may reconsider its vote of confirmation of an appointment by the Governor, I think the better authorities and the most satisfactory reasoning are with the cases that hold that a confirmation in such case is final and may not be reconsidered subsequently by the Senate.

The provisions in the Constitution referred to about making rules for the government of the proceedings of the Senate and House of Representatives has reference to legislative matters. By section 33 of the Constitution of Mississippi all of the legislative power of this state is by express provision of the Constitution vested in the legislature composed of the Senate and House of Representatives. The House of Representatives has a right to participate in all legislative proceedings, and the power to be exercised is to be exercised by each body to the same extent as by the other body. The Senate is more than a legislative body. It exercises in certain cases a judicial power in trying officers on charges of impeachment. It also shares with the Governor certain executive powers which the house does not participate in, and I think the power to confirm an appointment by the Governor is essentially an executive power.

In 1 Watson on the Constitution, p. 226, it is said:

"The powers of the Senate have generally been divided by constitutional writers into the legislative, executive, and judicial. . . . This division is logical and appropriate. Its legislative power is to unite with the House of Representatives in passing legislation. Its executive power consists in being able to approve or reject nominations sent to it by the President for various positions and to ratify or reject treaties sent by the President. Its judicial power is derived from that clause of the Constitution which authorizes it to try impeachment proceedings presented to it by the House of Representatives.

"The Senate was intended to sustain close relationship to the President and the early Presidents frequently visited the Senate in person and conversed with the members on public questions. This was especially a custom of Washington."

Mr. Bryce in his American Commonwealth treats the Senate in the same way, and we think that the great weight of authority of the country treat the power of consenting to the appointment of officers as the exercise of an executive, rather than a legislative, function.

A very elaborate and able discussion of the question is found in State v. Barbour, 53 Conn. 76, 22 A. 686, 55 Am. Rep. 65. In that case a city charter provided that the common council in joint convention should appoint a prosecuting attorney, but gave no direction as to the mode of appointment, and the convention had no power of removal. The convention met for the purpose of making the appointment, and voted "to proceed to ballot for a prosecuting attorney." A ballot was taken, and the relator had a clear majority of all the votes cast and of the whole convention, and the result was announced by the presiding officer. A resolution declaring the relator elected was then proposed and lost. Two resolutions were then offered, one declaring the ballot taken void by reason of errors in it (which it was found did not exist), and the other declaring the defendant "elected and appointed prosecuting attorney," both of which resolutions were passed. A contest arising between the two as to who was the rightful officer, the court said:

"The question then is reduced to this, Was the relator appointed by the ballot? In behalf of the defendant it is contended that he was not; that the ballot should be regarded as an informal one; that the convention, as it appears by its subsequent action, manifestly contemplated and intended that the passage of a resolution declaring the candidate receiving the majority of votes elected should be the act of appointment; and that until that is done, even until the convention has adjourned, the proceedings are in fieri, and it cannot be said that an appointment has been made.

"In behalf of the relator it is contended that the vote of the convention to proceed to ballot for a prosecuting attorney was equivalent to, and must be regarded as, a vote to elect or appoint a prosecuting attorney by ballot; that when the result was announced the appointment was complete, nothing more being required; that the relator thereby acquired a vested right to the office; and that it was not in the power of the convention by its subsequent proceedings to deprive him of it.

"We are inclined to think that the view presented by the counsel for the relator is the better one. If the convention had adjourned immediately after the result of the ballot was announced, we think it must be conceded that Mr. Coogan would have been legally appointed. The adjournment would have indicated that the convention regarded its duty as fully performed. But the convention proceeded to consider and vote upon resolutions declaring the respective candidates elected. This proceeding may be accounted for on one of two grounds: First, the convention may not have regarded a resolution as essential to an appointment, but simply as a more formal and orderly declaration of the result; secondly, that the convention considered the resolution as necessary to an appointment. In the former case it is evident that the resolution would not give efficacy to the ballot nor add to its force and effect. In the latter it is equally apparent that the views of the convention as to the necessity of a resolution would not be conclusive. So that the question remains, notwithstanding the subsequent action, was the result of the ballot a legal election? If that was its effect without the subsequent action, we think it must have the same force with it.

"It was doubtless competent for the convention to have determined in advance that the appointment should be made by the passage of a resolution, that the ballot should be an informal one, or that it should be a method of selecting a candidate to be appointed by resolution. In such a case there would have been no appointment prior to the passage of the resolution. But such was not the action of the convention. The vote was, not to take an informal ballot, not to select by ballot a person to be appointed, but to ballot for a prosecuting attorney. The ballot, we think, was understood and intended to be an election; and an election was an appointment.

"We interpret the vote to ballot as equivalent to a vote to elect or appoint by ballot — as a vote determining the method by which the appointment should be made. After the passage of that vote an appointment by any other method would not have been in order — would not have been according to parliamentary usage. If the convention had omitted the ballot, and made the appointment by resolution without first rescinding the vote to ballot, it might perhaps have been a legal appointment, on the ground that there was an implied rescission, but it certainly would have been irregular. But that course was not taken. After voting to ballot a ballot was actually taken which resulted in an election by a clear majority. Then, without any vote changing the method, the convention proceeded to pass a resolution which declared another man elected and appointed. In addition to the irregularity of not following the prescribed method, they departed from it after the thing to be done had been done. The convention decided to appoint and did appoint by ballot, and then appointed another man by resolution.

"We have said that the appointment was made when the result of the ballot was ascertained and declared. Nothing more was required of the convention. Its will had been expressed in a parliamentary and legal method, had been duly declared, and become a matter of record. Declaring the result by resolution was unnecessary. No certificate or commission from the convention or its officers was required by law. Mr. Coogan's right to the office vested at once, and he might without further ceremony accept and qualify.

"We do not wish to be understood as denying the power of the convention to correct errors and to nullify the effects of fraud. If there was a palpable error or fraud, or if the ballot for any cause was illegal, the convention might undoubtedly treat it as void, and proceed to another election. If we were to look only to the resolutions which passed we might assume that there was an error in the ballot and so give effect to the resolution. But the pleadings show that it was admitted that there was in fact no error or mistake. The mere declaration that there was an error when there was none, and the attempt to nullify the appointment on that ground cannot be vindicated.

"These views are believed to be in harmony with the best and most carefully considered cases. Appointments to office, by whomsoever made, are intrinsically executive acts. It has been so held when the appointment was made by a court. Taylor v.Commonwealth, 3 J.J. Marsh. 401. Also when made by the common council of a city. Achley's case, 4 Abb. Pr. 35. And when made by an executive officer. Marbury v. Madison, 1 Cranch, 137.

"When the appointing officer or body has not the power of removal, if the power to appoint has been once exercised, it is irrevocable, and the appointee will hold office during the term.Marbury v. Madison, Achley's case, supra; Cole v. Chapman,44 Conn. 601; Putnam v. Langley, 133 Mass. 204.

"An appointment is complete when the last act required of the appointing power has been performed. The signing of a commission by the President of the United States, when the appointment was made by him, and the law required a commission, was held to be the last act. Marbury v. Madison, supra. Also a writing signed by the mayor of a city making a nomination to be confirmed by the common council, under the erroneous belief that such confirmation was necessary, although it was not required by law.People v. Fitzsimmons, 68 N.Y. 514. In the case of a judicial appointment a declaration in open court, when the law does not require the appointment to be in writing, has been held to be final. Hoke v. Field, 10 Bush, 144; s.c., 19 Am. Rep. 58. InAchley's case, supra, it was held that the appointment was made when both branches of the common council concurred in the passage of a resolution making the appointment. So also in People v.Stowell, 9 Abb. N.C. 456. In Conger v. Gilmer, 32 Cal. 75, the law required that justices of the peace appointed by the board of supervisors should receive a commission signed by the officers of the board and sealed with its seal; it was held that a commission so signed and sealed was the only evidence of an appointment. If however, such formal act is to be performed by some other than the appointing power it constitutes no part of the appointment.Marbury v. Madison, supra; People v. Stowell, supra. Such formal acts in such cases are mere ministerial acts.

"The case of Marbury v. Madison, supra, is worthy of a more extended notice. In that case nearly all the important principles involved in this were promulgated by the supreme court of the United States in an elaborate opinion by Chief Justice MARSHALL, in which the whole subject is exhaustively considered.

"President Adams, under a law of Congress, nominated certain persons to be justices of the peace in the District of Columbia, and the nominations were confirmed by the Senate. The law required that the appointees should be commissioned by the President under the great seal of the United States. The appointment was for a term of five years. The President signed the commission, and the seal, under the statute, was affixed by the secretary of state, by whom alone it could be affixed. The commission, however, was not delivered. The persons appointed applied to the supreme court for a mandamus to compel its delivery. On a rule to show cause the court held that the appointment was complete, and that the persons therein named were legally entitled to the office; but discharged the rule on the ground that the cause was not within the jurisdiction of the court."

Draper v. State ex rel. Patillo, 175 Ala. 547, 57 So. 772, Ann. Cas. 1914D, 301, was a case where the Governor appointed a commissioner of a city to fill a vacancy, and a letter was written advising the appointee of his appointment as commissioner, and a direction to send a commission to the appointee, and the recital of the appointment for a specified term, followed by the words: "By order of the Governor, ____, Private Secretary." And it was held that this was a complete appointment without a commission, and that the Governor could not thereafter cancel the appointment. In the casenote (Ann. Cas. 1914D, at page 304) it is said:

"It may be laid down as a general rule that an appointment to public office is complete when the last act required of the person vested with the appointing power has been performed."

At page 306, same volume, it is said: "There is a conflict of authority as to the time when the appointment is complete when the appointing power is vested in a collective body. Some courts hold that in making an appointment to public office the appointing body is exercising a legislative function and that the appointment is revocable under the ordinary parliamentary rules. . . .

"On the other hand, some courts hold that the making of an appointment to public office is a quasi executive duty, incapable of revocation when once exercised."

The authorities for each proposition are set forth in the casenote. See, also, State ex rel. Childs v. Wadhams,64 Minn. 318, 67 N.W. 64; State ex rel. Whitney v. Van Buskirk, 40 N.J. Law, 463; Re Fitzgerald, 88 A.D. 434, 82 N.Y.S. 811, 84 N.Y.S. 1125; 17 Ann. Cas. 1011; 19 Ann. Cas. 823.

The general rule is that an executive act, when complete, is not subject to reconsideration. That seems to us to be especially true where the public officers of the state were appointed by the Governor. It would be contravening the spirit of section 20 of our state Constitution which requires officers to have fixed terms of office for some specified period. If the Senate on consenting to the appointments made by the Governor can by entering a motion to reconsider retain the right thereafter to reject an officer or confirm him at its option, it would give the Senate power to materially interfere with the public business because no person could afford to proceed to qualify and enter upon the discharge of his duties until the senate finally adjourned. It would also give the Senate a dominating power over the executive department of the state. It would enable the Senate to play politics, in the invidious sense, to have this power, and especially would this be true at the sessions of the legislature, where there would be a change in the occupant of the Governor's office. The dominating purpose of requiring the consent of the Senate to the approval of the Governor's appointments is to see that competent and suitable persons are selected to fill public offices.