USA > Michigan > Michigan legislative manual and official directory for the years 1899-1900 > Part 16
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This is a most extraordinary case, and it may well claim our atten- tion. 1. How could it happen that the speaker should preside in joint convention? The lieutenant governor being present, why did he not preside? 3. When the secretary of the senate and the clerk of the house had each announced an equal and like number of votes, for and against the motion, why did not the chairman declare the motion lost, it not having received a majority of all the votes cast, instead of hunt- ing up an outside party to vote, whose name was not upon either roll call, and whose name nobody was authorized to call? It may be that these three questions could have been answered more easily under the constitution of 1835 and the rules of 1839 than now, for clearly, under our present constitution and rules, it is the duty of the senate to furnish a presiding officer for joint conventions (rule 4 for joint conventions) (a). If the lieutenant governor is absent then the president pro tempore presides; and if, as was the situation in this case, the senate has no president pro tempore one should be elected before proceeding to joint convention, as it is an office established by the constitution (Sec. 13, Art. V), and a wise provision to insure the proper discharge of the du- ties of the office of lieutenant governor and governor, to each of which it may in turn succeed. Then as to the propriety of the lieutenant gov- ernor's voting when he was not acting chairman, a careful reading of Sec. 14, Art. V, of the constitution, leads to the conclusion that, while he is authorized to debate in committee of the whole, he has no place in the senate except in the chair. Authority to decide a tie vote tested anywhere except in the chairman is too unreasonable a proposition to consider. The intent is clear that, if the lieutenant governor is present in the senate (or joint convention) and acts at all, he must act as pre- siding officer. If he substitute (rule 5), or allow the senate to substi- tute, the substitution is complete. The constitution says "he shall be president of the senate." But in this case, whether right or wrong, the speaker did preside. Clearly he had no greater power than would have had a president pro tempore of the senate acting in the same capacity. Now, rule 4 for joint conventions defines in precise words: "In case of a tie, the question shall be declared lost." Thus it is hard to see where there was any occasion or opportunity for the action had, or the ques- tion raised.
74. A joint resolution reporting an amendment to the constitution by adding a section to stand as section 16 of article XVIII, having been put upon its passage, a substitute was offered for the whole joint reso- lution, to which substitute two amendments were made. A motion was then made to amend the substitute for the joint resolution by inserting in lieu of the proposed section 16 another section 16. Held, that the latter amendment was not in order, as it was a substitute for a sub- stitute to a proposition pending before the house, which substitute had been amended by the house, and the effect of the proposed sub-
(a) The "rules of the senate and house of representatives in joint conven- tion" were not adopted until nearly three months after the joint convention here mentioned. They appear first in the Manual of 1840.
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THE LEGISLATURE.
stitute would be to entirely change the character of the one which has been partially agreed to by the house in its present form .- H. J. 1870, p. 132.
A substitute to a pending substitute is never in order. See No. 3.
75. A majority of the committee on elections having recommended the adoption of a resolution to postpone indefinitely the further consid- eration of the eligibility of certain members to hold their seats, and the minority having submitted a contrary report, a motion was made to adopt the resolution reported by the majority. A motion to amend by adopting the resolution reported by the minority was held out of order "on the ground that the majority resolution was simply a motion to indefinitely postpone, which was not susceptible to amendment, and must be decided without debate."
The motion to indefinitely postpone is one of the privileged motions frequently used to prevent debate, and bring on the final issue. In this sense it is in part another form of the previous question, and was cor- rectly held as not amendable.
76. A motion to lay on the table and print, having been made, held, that the question of printing may be debated .- H. J. 1851, pp. 433-4.
This was a motion of easy virtue, not consistent with good parlia- mentary practice. "The table" is a place of rest. "To print" is a con- dition of activity, indicating progress. The two cannot be made to harmonize; but if such a combined motion were entertained, there can be no question that it was rightfully held to be debatable. It would have been much better to have divided the motion. See Nos. 57, 58 and 59.
77. When a bill originating in one house is amended in the other, the concurrence in that amendment is equivalent to the passage of the bill and requires a vote of a majority of the members elect. During the extra session of 1851, a contrary decision was made by the house on an appeal. The house passed a bill and the senate adopted a substitute therefor. The vote on the adoption of the senate substitute by the house stood thirty yeas to twenty-six nays. The speaker pro tem. de- cided the substitute not concurred in, a majority of all the members elect not having voted therefor. An appeal was taken and the de- cision of the speaker pro tem. was not sustained by twenty-two yeas to twenty-seven nays .- Church's Appeal, II. J. 1851 (Ex. Session), pp. 68-76. The bill was ordered enrolled by the house and sent to the governor, and was returned to the house by Gov. Barry upon a statement of the facts .- Id. pp. 90, 96; also House Document No. 1, Ex. Sess. 1851.
Our constitution requires an affirmative vote of a majority of all the members elect to pass any bill or joint resolution. Certainly a substitute for a bill, or an amendment to a bill, would require a like number, and no less would suffice, as action upon such substitute or amendment from the other house, if decided affirmatively, would be the last vote upon the bill, i. e., the passage of the bill. Such vote upon concurrence is always taken by yeas and nays, and entered at length upon the journal, the same as the original vote by which the bill passed, be- cause if less than a majority of all the members elect voted affirma- tively upon the amendment, then the same is not adopted and there is a disagreement between the two houses. See No. 14.
78. A bill was pending in the house to declare a certain railroad aid grant of lands forfeited by one corporation and to confer the same upon another by confirming the action of the state board of control in the premises. Held, by the speaker, that a vote of two-thirds of all the members elect was requisite to the passage of the bill under section 45, Art. IV, of the constitution .- Mercer's Appeal, H. J. 1881, p. 1563.
If the bill conveyed no rights of the state, i. c., public property, to the railroad corporation seeking its passage, then it was worthless and
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needless, but if on the contrary it did convey public property, then undoubtedly a two-thirds vote was necessary. The theory that the state simply transfers from one corporation to another something it did not and could not have, was hardly logical.
79. One of the six bills prepared by the tax commission of 1881, and submitted to the house by the governor in his message, being upon the order of third reading, Mr. Earle raised a point of order against the house at this time taking any action as to the bill in question, his ob- jection being that it had never been properly introduced into the house; that neither a member nor a committee of either house of the legisla- ture had presented the bill; that by the constitution of this state and the rules of the house, a definite method was provided for the introduc- tion of bills; that that method had been entirely ignored, consequently all future action upon the bill would be entirely unauthorized, as it had no legal standing in the house. Held, that under the law creating the tax commission the bill, with several others, came from the gov- ernor as the work of such commission; that the bill entered the house, with others, by special message opening this session; that the objec- tion raised might be a question for the consideration of the house, but it was not an objection which could be sustained at this time by the presiding officer .- Earle's Appeal, H. J. 1882 (Ex. Session).
A commission to prepare bills for legislative action was a new de- parture for Michigan, but it was no hasty act. For more than ten years had the conviction been growing that the tax system could not be properly revised by legislative action alone. Members single handed, committees of either house, and joint committees for five successive sessions had expended their wisdom upon it without result. The knotty question was unsolved. The legislature of 1881, by regular enactment, authorized such a commission, they prepared their work, the governor presented it at an extra session convened especially to consider it, and at the last stage of the whole proceedings-the final vote-the question of legality came rather late. The presentation of the bill was author- ized by the joint action of both houses by law. It is a fact worthy of remembrance, however, that the supreme court set all these acts of the tax commission aside, principally on the ground that an independent commission to assist the legislature was unjustifiable interference.
80. A motion "that the senate do now adjourn" was pending when a motion was made "that when the senate adjourn today it stand ad- journed until tomorrow at 10 o'clock." The president ruled the latter motion out of order. An appeal was taken, and the ruling of the presi- dent sustained .- S. J. 1885, p. 796.
No principle of parliamentary law has been more clearly defined than that a motion to adjourn being made it must be disposed of before any other business is in order; but within the last few years (in congress more particularly) a practice has grown up of permitting a motion in- tended to fix the time to which to adjourn, while a motion to adjourn is pending, or even any time before adjournment is announced by the chair, on the ground that it may be of the utmost importance to set a new time for reconvening before adjournment. Now as the question of time in such a motion would be amendable and debatable, I doubt the propriety of such a course, except by unanimous consent. When all are agreed parliamentary law is of no use.
81. The senate had voted to place a certain bill "on its immediate passage." The president refused to entertain several motions offered. ruling that nothing was in order but the reading and consideration of the bill in question. Appeal was made but the president refused to entertain it .- S. J. 1885, p. 1297.
It is no doubt very annoying to a presiding officer to entertain dila- tory or filibustering motions, but on the other hand parliamentary law
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is designed, and must be used to enforce the rights of minorities; ma- jorities can take care of themselves. There are very few instances where a chairman could properly refuse to entertain an appeal from his ruling.
82. A certain bill authorizing the board of control of state swamp lands to use not to exceed a given number of acres of swamp lands for a certain improvement received 55 votes, and was declared passed. An appeal was taken from the ruling which declared the bill passed on less than two-thirds affirmative vote of all the members elect, under Sec. 45, of Art. IV, of the constitution. The ruling of the speaker pro tem. was sustained .- H. J. 1885, pp. 1320-2.
Undoubtedly the ruling was in accordance with the practice of twenty years or more, upon that class of bills; and yet bills making direct appropriations without the intervention of the board of control have been held to require a two-thirds affirmative vote.
83. A motion was made to discharge the committee of the whole from the further consideration of a bill, and claimed carried on a registered vote of 47 yeas to 43 nays. The question was raised, that to discharge the committee of the whole was to divert a bill from the regular course laid down by the rules, and was therefore a suspension of the rules and as such required a two-thirds vote. The speaker ruled that a majority vote was sufficient. An appeal was taken and the ruling of the speaker was sustained .- H. J. 1885, pp. 1739-40.
The "general order" or file of the committee of the whole is the gen- eral waiting place for all business. The rule especially contemplates that the committee may take up the several items for consideration at its pleasure. The committee has no authority except such as it derives from the house; certainly then, the house itself may do what it can authorize the committee to do. The object of the general order file is to furnish a place to store up bills until they are wanted, and they are wanted whenever a working majority of the house or committee of the whole desires to act upon them.
84. A bill passed both houses and was sent to the governor for his approval in regular order; shortly after which the friends of the meas- ure discovered that the bill contained a mistake, which they, desiring to correct, sent a respectful message to the governor, asking the re- turn of the bill. Meantime the governor had placed his signature to the bill and left the city. Upon receipt of the request the private sec- retary of the governor thought that courtesy demanded that he should return the bill as requested, which he did. When it came up under reconsideration the governor's signature was discovered, and the question raised that it was no longer a bill but an act; that having received the governor's signature it could not be reconsidered. There was no dispute as to the facts; all it lacked of being an act was the mere deposit in the office of the secretary of state, and a formal mes- sage of approval, which of course the governor was ready to make, because he had approved the bill itself .- H. J. 1885, pp. 1253-4.
A bad practice has grown up of requesting the return of bills from the governor for the purpose of amendment, one which has no stand- ing beyond courtesy, and one which should seldom be indulged in, as it is surrounded with many difficulties, only one of which the case in point illustrates. This case is entirely out of the reach of parlia- mentary law or practice. The whole trouble was occasioned by too much courtesy on the part of the governor's secretary; he should have replied by message that the bill had been signed.
85. The bill relative to the manufacture of oleomargarine, being on its final passage, was declared passed on 55 affirmative votes. The question was raised that, as certain provisions of the bill forced the sale of property to the state at an appraisal, it therefore required a
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two-thirds vote. The speaker ruled otherwise and an appeal was taken. The ruling was sustained .- H. J. 1885, pp. 1715-6.
This bill is very unusual in its provisions, in that it was an effort to do something that could not be done even by a two-thirds majority vote, and the courts so held. The legislature cannot do everything.
86. A joint resolution extending the time for the completion of a railroad, and thereby continuing a land grant, was declared passed on a vote of 62 yeas. The question was raised that this was a direct vote of public property to private use, and that the resolution therefore re- quired 67 votes under the constitution, Art. IV, Sec. 45. The speaker ruled a majority sufficient; an appeal was taken and the ruling sus- tained .- H. J. 1885, pp. 1377-8.
There are some points of difference between the questions involved here and in No. 78; but substantially the same question is pending: will the state grant lands to railroads? In that case 67 affirmative were required.
87. A protest was offered in due form for publication. A motion was made that the protest be received but not published in the journal of proceedings. The president of the senate ruled the motion out of order because of Sec. 14 of Art. IV of the constitution, which particularly gives any member of either house the right of protest and of having the same entered in the journal. An appeal was taken and the ruling sustained .- Edward's Appeal, S. J. 1887, p. 1422.
The motion was faulty for two reasons. 1. It was not in the affirma- tive form. It was a motion not to publish. Such motions are mislead- ing and not in accord with parliamentary law. 2. It was in direct conflict with a constitutional privilege.
88. A member of the senate arose to a "question of privilege," stat- ing that he wished to introduce a resolution calling for the investiga- tion of a certain state institution. The chair ruled that to introduce such a resolution was not a "question of privilege," and that conse- quently the resolution was not in order. An appeal was taken and the ruling sustained .- Babcock's Appeal, S. J. 1887, pp. 1432-3.
A "question of privilege" relates to something offensively personal to the member raising it, and would not apply to a resolution to inves- tigate charges against a state institution. It would be a "breach of privilege" to obtain the floor for business not in order under any such pretense.
89. The senate sent a request to the house for the return of a con- current resolution passed some days before relative to the April ad- journment. Motion was made to grant the request. The speaker ruled both the request and the motion out of order, as they related to a matter which had been concluded some days before, and all action re- lating thereto being fully completed, it was not competent for the house to accede to the request. An appeal was taken and the ruling sustained .- Oviatt's Appeal, S. J. 1887, p 1110.
As the resolution was to fix the time to which the legislature should stand adjourned, when it did adjourn on a given day still in the future, it is hard to see why ordinary courtesy between the two houses would not have entertained the motion to grant the request. Strictly a re- quest is only a petition, but the right to petition and to have our re- quests duly considered is supposed to be a staple of American pride.
90. The question was raised as to whether a bill affecting chartered rights acquired prior to the constitution of 1850, having passed the house by more than a two-thirds majority vote, should not have been declared by the speaker as having received the vote of two-thirds of all the members elect. Held, that notwithstanding the bill did receive the requisite two-thirds majority, it should have been so declared .- Lakey's Appeal, H. J. 1887, p. 862.
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The declaration is a part of the vote, yet it is questionable if the courts would invalidate such an act because it did not receive votes enough, when by the yeas recorded in the journal more than the neces- sary two-thirds voted for its passage.
91. A bill having passed both houses in due form, was returned by the governor, without his signature, to the house in which it origi- nated. The vote by which the bill was passed was then reconsidered in constitutional form, and the question then recurred: Shall the bill pass, the objection of the governor notwithstanding? The bill failed to pass, not receiving the necessary votes of two-thirds of all the mem- bers elect. A motion was then made to reconsider the vote by which the bill failed to pass, when the point of order was raised that a recon- sideration was not in order at this stage of the bill's history-that the constitution, in providing for one reconsideration and no more, presented a bar to all further action. Held, that the point of order was well taken .- Rumsey's Appeal, H. J. 1887, p. 2266-7.
This holding was strictly in accord with congressional practice and precedents. There must be some point beyond which even the friends of a measure cannot hope; a veto is sufficient warning that the end is near, and that to succeed they must have a two-thirds majority the first time.
92. A protest against the action of the senate, to be such a paper as must be entered upon the journal under the provisions of the consti- tution, shall be in language which does not impute improper motives to the senators in taking the action .- Taylor's Appeal, S. J. 1887, p. 222.
The senate absolutely controls the making of its own journal, except so far as the constitution provides that certain matters shall be en- tered thereon. The provision relative to individual protests cannot be held to require the senate to enter on its journal insulting and con- temptous matter, under color of a protest; and the senate may insist that the protest contain nothing but the member's "dissent" and bare statement of his "reasons" therefor.
93. Motion to dispense with a further reading of a protest against the action of the senate in seating two contestants; point of order raised that the contestants should not be allowed to vote on the ques- tion. Held, that the point was not well taken .- S. J. Feb. 24, 1891.
The cases having been decided by the senate, and the contestants seated, they were technically entitled to vote on all qustions.
94. Motion that senate return house concurrent resolution. Point of order raised that inasmuch as a resolution has nothing tangible in its character, it cannot be recalled, and further, that it is contrary to the practice of former legislatures. Held, (Wachtel, speaker), anything sufficiently tangible to be submitted to the senate, should be suffi- ciently so for its return, and the constitution also requires concurrent resolutions to be submitted to the executive; hence tangible and the point not well taken .- H. J. Feb. 6, 1891.
The practice as to return of concurrent resolutions prior to this de- cision had not been definitely settled, for such action is seldom called for. The scope of concurrent resolutions has of late encroached very much upon that of joint resolutions, and their "tangibility" has there- by been recognized.
95. Resolved, That the committee on engrossment and enrollment be discharged from further consideration of house bill No. 849, known as amended charter of the city of Saginaw. Point of order raised "that the resolution was not in order," which point of order the chair ruled was not well taken for the following reasons (Wachtel, speaker):
It has been the practice to accede to the request of the senate for the return of a bill even after it has gone to the governor.
House bills go to the committee on engrossment and enrollment im- mediately without any particular action; the chair cannot see that it
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would preclude a majority from delaying it by tabling. It seems a rea- sonable construction of the rules chat the house has control of its bills up to the moment they are signed by the governor, except when they are in the hands of the senate; even then by the usual courtesy they are returned by request.
Now if, on the request of the senate, the house can discharge its committee on engrossment and enrollment, it would seem as though the house could take the same action in the absence of such request.
The resolution presented, seeking to discharge the committee on en- grossment and enrollment, is evidently for the purpose of testing the sense of the majority, and as there is no power to prevent the house from taking this action, if it so determines, the chair does not deem it proper to say arbitrarily that the resolution is out of order, and hence the point not well taken.
See bill history, 1887, H. B's 58, 61, 134, 55, and 1889, H. B's 174 and 227. An appeal was taken and the chair sustained. H. J. March 26, 1891.
The principal error in this ruling lies in considering a bill that has passed both houses as still "a bill." It is no longer "a bill" of one house, but "an act" of both houses, although it is not yet a law. Its proper place is in the governor's hands, and neither house has a right to prevent its going to the governor, except by the process of recon- sideration. Such reconsideration must begin in the house which last passed the bill, and by a request for the return of the bill preliminary to reconsideration. Another error in this ruling lies in the statement that "the house has control of its bills up to the moment they are signed by the governor." Even if considered as still a "house bill" after its passage by the senate, it certainly could not be held to be within the "control" of the house after it had gone to the governor, and during the ten days he is constitutionally authorized to hold it before signing it. There is also a technical reason why the motion to table a house bill returned as passed by the senate is not in order. The motion to table is a subsidiary motion which adheres only when there is some main question pending. After a bill has passed both houses, no further question as to such bill is still pending. All dis- cretionary action has ceased, and only the formal transmission to the governor, as contemplated by the constitution, yet remains. It is true, the house may arbitrarily table, or suppress, the bill, and no power in the state can prevent. But such action comes of might, not of right.
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