DYE v. STATE EX REL. HALE

SULLIVAN, Justice, concurring in part and dissenting in part:

We live in interesting times. While the House chamber echoed with the cry, "the King is dead," the Senate chamber declared, "Long live the new King." While the House was reasserting democratic government in a belief that its members were capable of organizing themselves into a representative legislative body, the Senate, through its rules, was abandoning all pretext of self-organizing ability and creating a monarch to organize and rule over them. If these movements are to be seen as ploys in the ongoing game of one-upsmanship between these two legislative chambers, then the Senate clearly won by creating a power figure to rival anything ever seen in the House. If, however, these movements are to be seen as a reflection of the democratic ideal of direct representation of the people within the legislature, then the House clearly took the superior approach. More than that, the House acted within constitutional parameters, while the Senate action was outside those limitations.

In reversing the circuit court, this Court has approved not only the Senate action, but it has approved the creation of a new form of government, not envisioned by the constitution nor countenanced by our people. We have allowed the Senate to diminish itself and debase the dignity and authority of each of its members. In the past, we stoutly refused to allow the legislature to encroach upon the executive branch of government, yet today we have apparently approved the right of the legislature to invite the executive branch of government to encroach upon them. It seems to me that if our constitution forbids the one, it also forbids the other.

Nevertheless, our decision today allows the Senate to create from the largely ceremonial office of Lieutenant Governor a powerful legislative creature, a super-senator, vested with sufficient legislative authority to virtually dominate the entire Senate.

In doing this, I believe we have deserted the constitutional mandate of separation of powers in Mississippi government and we have heavily tipped the scales of the once-balanced power structure away from the Senators and toward the office of Lieutenant Governor From this day forward Mississippians must give far greater care to their selection of their Lieutenant Governor than they give to their choice of any other elected official, for now the Lieutenant Governor is not only a heartbeat from the Governor's chair, he also controls one-half of Mississippi's legislative branch of government. All men must tread softly in the presence of such power. Mississippians would also be well advised to determine from their candidates for the office of State Senator, if those candidates would serve the electorate or the Lieutenant Governor. Today's decision implies that a Senator may be unable to function effectively unless he chooses to serve the latter.

The belief in government of and by the people also received a body blow by our decision today. In my view, by today's decision we have arrogated unto ourselves the power to drastically amend our constitution without so much as a "by your leave" to the people of Mississippi, the sole source of constitutional power under our form of government. That we have chosen to exercise such unwarranted authority upon so slender a thread as the reasoning in the majority opinion is beyond my comprehension.

In the face of today's decision which is predicated upon an untenable reading of the Constitution of 1890, I am compelled to dissent from this Court's approval of the transfer of seemingly limitless and unconstitutional powers to the office of the Lieutenant Governor. I understand the issue for resolution today to require a determination of to what extent, if any, the Mississippi Senate may abdicate its legislative powers, duties and responsibilities to the Lieutenant Governor and to what extent the Lieutenant Governor may accept and exercise these legislative powers.

Our analysis must be guided by the plain language of the Constitution of 1890, the basic compact of government for the State of Mississippi and the yardstick by which all Mississippi law must be measured.

In assessing the constitutionality of the various senate rules in issue today, we are bound by certain rules of construction, the importance of which led me to briefly detail them below.

We are bound in our study of this issue by certain guidelines and in my opinion we are required to apply the rules that follow:

Provisions of the constitution must be read so that each is given its maximum effect and a meaning in harmony with the other constitutional provisions. St. Louis San Francisco Railway Co. v. Benton County, 132 Miss. 325, 330, 96 So. 689, 690 (1923). To the extent that conflict may appear specific provisions control over general provisions. 16 Am.Jur.2d, Constitutional Law, Section 103 n. 6 (1979).

The constitution is a document presumed capable of ordering human affairs beyond the time of its ratification under circumstances beyond the precincts of the draftsmen. Frazier v. State of Mississippi, 504 So.2d 675 (Miss. 1987). Therefore, we should read and enforce it in the manner which best fits its language and best serves our state today. Alexander, ex rel. v. Allain, 441 So.2d 1329, 1334, 1339 (Miss. 1983). To be sure, if the language of the constitution is plain the Court must enforce it. State, ex rel Greaves v. Henry, 87 Miss. 125, 40 So. 152, 154 (1906). Moreover, where the constitution deals with the subject the words of the constitution must be the sole boundary. State ex rel. Greaves, 40 So. at 154. In other words, where the language of the constitution is plain, subsequent action by the departments of government are contemporaneous or antecedent history on the subject cannot be appealed to for interpretation. The real intent must be taken from the language of the constitution itself. State ex rel Greaves, 40 So. at 154 (Emphasis added).

Where the constitution schedules powers, giving or taking away, it must be presumed to have scheduled all, and we must look only to the constitution with its necessary implications for the limit of the power granted or the restriction imposed. State ex rel. Greaves, 40 So. at 154.

When these rules are followed and applied to the language of our constitution what emerges is a clear picture of a comprehensive, cohesive, and harmonious blueprint for a functional state government divided into three departments which are to be operated in an orderly manner to serve the best interest of the people of Mississippi.

Only when each provision of the constitution is given its maximum effect and a meaning in harmony with the other provisions is this possible.

If the constitutional provisions in question here are harmonious in nature when given equal effect one with the other no conflict exists between them and this Court need not, in fact may not resort to enforcing the specific provisions of the constitution at the cost of the general provisions.

The language found in Article 1, Sections 1 and 2 declaring the constitutional law of separation of powers is plain and we must enforce it.

The unambiguous language of Article V, Sections 128 through 132 concerning the office of Lieutenant Governor is plain and we must enforce it. This language also is in harmony with the unambiguous language in Article I, Sections 1 and 2.

The unambiguous language contained in Article IV, Sections 33, 35, 37, 38, 39, 55, and 99 is also plain and must be enforced by this Court. These sections of Article IV can and must be read in harmony with Article V and Article I. Read together there is produced a harmonic symphony of orderly government. Read as though the provisions conflict what results is a cacophony of discord and chaos.

When, in Article V, Section 131, the constitution scheduled executive powers of the Lieutenant Governor, it scheduled his entire executive power and we must look only to that constitutional provision for the limit of his executive authority.

When Article V, Section 129, scheduled the legislative powers of the Lieutenant Governor, it scheduled all of the legislative powers the office of Lieutenant Governor may exercise. We must look only to that language for the limitation of his executive authority.

As the language of Article V, Section 129, is plain the subsequent action by the senate and the Lieutenant Governor may not be appealed to by this Court. Nor may this Court for the same reason appeal to contemporaneous or antecedent history on the subject of the Lieutenant Governor's legislative power and the authority of the senate to confer legislative power upon him beyond that prescribed by the constitution.

As the language of the Constitution of 1890 is plain and as our Canons of Construction do not allow us to use antecedent of the subject for interpretive purposes, I offer this background merely to illustrate the stealthy, persistent and malignant erosion of the legislative power and the concurrent aggrandizement of the power of the Lieutenant Governor in the face of an expressed constitutional limitation upon the legislative authority of the office.

The office of Lieutenant Governor was recreated by the Constitution of 1869, a document which also made the Lieutenant Governor the ex officio president of the Senate, allowed him to debate all questions in the committee of the whole, and authorized him to vote where necessary to break a tie. Article V, Section 15, Mississippi Constitution 1869 (1868).

Rule 30 of the Senate Rules adopted in 1870 allowed the Lieutenant Governor to appoint Senate committees. No constitutional challenge was made in the courts of this State to this cession of legislative power by the Senate to the Lieutenant Governor. But it is plain that these rules represent nothing more than the subsequent action of a part of the legislative department and a part of the executive department to which this Court may not appeal for interpretation in the face of the plain language of the Constitution of 1869.

The Executive Committee of the constitutional convention of 1890 proposed to retain the Lieutenant Governor's office as it had been in the Constitution of 1869 but to set the salary so that it might no longer be controlled by the legislature. Toward that end, a substitute motion was adopted by the convention making the Lieutenant Governor's salary the same as that of the speaker of the house. The real battle in this convention was not over the Lieutenant Governor's exercise of both the executive and legislative powers nor over his salary; it was over the very existence of the office of Lieutenant Governor itself.

Delegate W.A. Boyd moved that the convention strike all mention of the Lieutenant Governor from the 1890 Constitution and his motion passed by a vote of 45 to 37. Boyd's motion was held on a motion to reconsider and when he spoke in favor of reconsideration Delegate J.B. Chrisman said:

Now, I call the attention of the convention to the slender majority by which the white counties of the state hold that body [the Senate]. It is only by a majority of three. Who can foresee the future and guarantee white supremacy when it depends on such a contingency as I have indicated.

But aside from the considerations I have suggested, I think it good policy to continue this office. The people ought to be allowed to vote for their governor, and the president of the senate who appoints the committees of that body, ought to be entirely independent of local influences and responsible to the people alone. The conservative influence which such a position and responsibility brings to bear upon the mind and character of a presiding officer is of great benefit to the state, and will not be without its beneficient influence on the senate.

When read in its full context, the Chrisman speech is less persuasive as a sound declaration of constitutional policy and more evident as an open appeal to the maintenance of white supremacy and ancient themes of fear, injustice and inequality. For whatever reason the speech brought about its desired effect and seventeen delegates who had not voted on the Boyd motion cast their lot with Chrisman, and the Lieutenant Governor's office was saved. The final vote was 54 to reconsider and a resolute 45 to abolish the office. The effort to return to a strong legislative president of the senate with ex officio executive branch duties was roundly defeated. Today, the majority seeks to restore this strong legislative power to an executive officer, by a judicial fiat. Such an act is not constitutionally permissible.

I concede that by selective reading it is certainly possible to glean from this speech support for the idea that the President of the Senate [the Lieutenant Governor] has constitutional power to appoint Senate committees. However, I hasten to point out that the language being given such an interpretation is found merely in the speech of a delegate on the convention floor. This language did not survive to be placed in the Constitution of 1890. Therefore we may not say that this speech may be construed to find the intention of the plain constitutional language. We must look only to the language itself and when we do so this power to appoint is noticeably absent.

I repeat that under proper Canons of Constitutional Construction when the constitutional language is plain the subsequent actions of the governmental departments may not be utilized to define the constitutional intent. Were this not so this Court would have approved the legislative encroachments upon the executive authority done with the acquiescence of the executive department when we decided Alexander v. State, ex rel. Allain, 441 So.2d 1329 (Miss. 1983). We rejected such a view then and we must reject it now. To do otherwise is to stamp with our approval the old saw that as between friends the constitution is nothing.

I review the history of the Senate Rules for the sole purpose of exhibiting how they have quietly and slowly undermined the constitution and ultimately serve to whittle away the power and dignity of the Senate. Gradually through Senate Rules the office of Lieutenant Governor has been transformed from that of a "Governor in Waiting" into that of an "Overlord of the Senate." The delicate balance of the scales of state government, so meticulously provided for by the constitutional doctrine of separation of powers, has been altered beyond recognition. It is a metamorphosis of monstrous proportions that has gone unchallenged until this day. In 1892 the Senate adopted rules of its own proceedings under Article IV, Section 55 allowing the Lieutenant Governor to appoint standing committees and to serve upon the powerful rules committee. Notably, these rules did not provide the Lieutenant Governor with the power to refer bills to the various committees. It is significant that in 1892 no challenge was made to the constitutionality of these rules.

In 1912 the Senate revised their rules of proceedings and not only gave the Lieutenant Governor the right to appoint committees and committee chairmen, the Senate placed the Lieutenant Governor on the rules committee and gave him the power to refer bills to committees. Again, there was no challenge to the constitutionality of the adoption of these rules.

In 1980 the then Lieutenant Governor-elect drew up new Senate rules which greatly expanded the power of the office of Lieutenant Governor while at the same time shrinking the power of the senate. These Lieutenant Governor rules were not made public nor did the Lieutenant Governor-elect name any committee chairmen until after the Senate had adopted his rules. While this may be in keeping with the letter of the law contained in Section 55, that each house may determine rules of its own proceedings, on its face it appears that the Lieutenant Governor drew up the Senate rules and the senate merely acquiesced in them. The letter of the law? Perhaps. The spirit of Section 55? Definitely not. Once again however, there was no challenge made to the constitutionality of the Lieutenant Governor's rules which were adopted by the Senate in 1980.

It was not until the adoption of the present Senate rules that two Senators challenged the constitutional right of the Lieutenant Governor to dominate and control the legislative process of the Senate through the use of the Senate's internal rules of procedures.

Alarmed by the apparent aggrandizement of the power of the Lieutenant Governor and the concurrent reduction of their power as Senators, which potentially greatly reduced their effective ability to represent the people who elected them, these two Senators filed this action.

May the Senate delegate legislative authority to the Lieutenant Governor beyond that specifically granted to that office by the Constitution of 1890?

May the Lieutenant Governor exercise legislative authority beyond that expressly granted to his office by the Constitution of 1890?

What is the nature of the office of President of the Senate?

What is the nature of the office of Lieutenant Governor?

What is the role of Article I, Sections 1 and 2, Mississippi Constitution of 1890?

Article I is entitled Distribution of Powers and under it Section 1 reads as follows:

Section 1. The powers of the government of the State of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: those which are legislative to one, those which are judicial to another, and those which are executive to another.

This section provides that the powers of state government shall be divided into three distinct departments; the executive, legislative, and judicial departments. Any office or position fashioned under the Constitution of 1890 must be fixed under only one of these departments, unless, the constitution by its own terms creates an office that fits in more than one of the departments of government. To me it is indisputable that the Lieutenant Governor is a part of the executive department by virtue of Article V, Section 128, but it is equally clear that under Article V, Section 129, the Lieutenant Governor is made ex officio President of the Senate and given express and very limited legislative power. Thus the constitution has made an exception to its general rule of separation of powers, but it has also definitively delineated the boundaries within which it will tolerate an invasion of that separation.

Section 2 of Article I provides:

Section 2. No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once vacate any and all offices held by the person so accepting in either of the other departments.

The first sentence of Section 2 strongly states the prohibition against violating the constitutional doctrine of separation of powers. The last sentence provides a penalty in no uncertain terms for those who violate the separation of powers provision. There can be no mistaking the meaning and intent of the second sentence of Section 2. The significance of this sentence is that the drafters of three previous constitutions had expressly declared the powers to be separate, but had not included the penalty sentence.

The severity of the penalty imposed by Section 2 makes unmistakable the importance placed upon keeping the three departments of government separate by the drafters of the 1890 Constitution. A trespass upon the departmental separations is to be treated summarily. The violater not only forfeits his office in his original department of government but he forfeits any and all public offices at the instant he crosses into the forbidden zone.

The founders of this nation recognized in the federal system the absolute necessity for the separation of powers of the different departments of government. In his farewell address George Washington warned, "The spirit of encroachment tends to consolidate the powers of all of the departments in one, thus to create, whatever the form of government, a real despotism." John Adams said, "It is by balancing each of these three powers against the other two, that the efforts and human nature toward tyranny can alone be checked and restrained, and any degree of freedom preserved in the Constitution. James Madison, considered the father of the Constitution, emphasized, "The accumulation of all powers, legislative, executive, and judiciary, in the same hands, whether of one, a few, or many, and whether hereditary, self-appointed, or elective, may justly be pronounced the very definition of tyranny." Such was the importance placed upon the political doctrine of separation of powers by the founders of this country. The Mississippi Constitution of 1890 evinces the same concern, but carries it one significant step further.

Unlike its federal counterpart, the state concept of Separation of Powers was made a rule of constitutional law in Mississippi and is not merely a political doctrine. Article I of the State Constitution states the primary and overriding ethic of government imposed upon us by the Constitution of 1890. The Draconian nature of the penalty for violating this prime governmental ethic leaves no doubt that the separation of powers is a constitutional commandment of foremost importance. It is not merely a political suggestion to be ignored as convenience dictates.

This Court has already stated this obvious precept of Mississippi Constitutional Law when speaking through Chief Justice Patterson in Alexander v. State, ex rel Allain, 441 So.2d 1329, 1335 (Miss. 1983):

We must conclude the intention of the draftsmen was that there be no exceptions to the mandates that the powers of government be held and exercised in three separate and distinct departments and that no person holding office in any one department should have or exercise any power properly belonging to either of the others.

I cannot agree with the majority when it characterizes these powerful words as dicta. This significant language lies at the vital center of the Alexander decision and illuminates with pristine clarity the central concept of the homogeneous Constitution of Mississippi. There can be no exception to the separation of power mandates and no person holding office in one department shall exercise any power properly belonging to either of the other departments of government.

Chief Justice Patterson has both clarified and simplified the question before us today. Do these senate rules transfer powers properly belonging to the legislative department to the Lieutenant Governor, a member of the executive department? In his exercise of the powers bestowed upon him by these rules does the Lieutenant Governor exercise powers which properly belong to the legislative department?

To answer these questions we must turn our attention to the historical office of Lieutenant Governor to see what constitutional powers properly belong there.

The Constitution of 1817 provided for the executive department in Article IV.

Section 18 of Article IV created the office of Lieutenant Governor and Article IV, Section 19, made the Lieutenant Governor, by virtue of his office, President of the Senate. The only legislative authority granted to the Lieutenant Governor as President of the Senate was the right to debate when in the committee of the whole and to vote on all questions and when the Senate was equally divided to give the casting vote. He was given no authority to give the casting vote on an equal division of a joint session of the legislature. No mention is made in the Constitution of 1817 of any right of the Lieutenant Governor to appoint committees, serve upon committees, assign bills, or to control the employees of the Senate.

In 1832 Mississippi adopted a new constitution which did not provide for the office of Lieutenant Governor. Exclusive executive power was vested in the governor. The only other offices of the executive department mentioned in Article V were the Secretary of State, County Sheriff, County Coroner, County Treasurer, County Surveyor, County Ranger, State Treasurer and an Auditor of Public Accounts.

Article III created the legislative department within the Constitution of 1832. Article III, Section 4 vested the legislative power of the State into two distinct branches, the Senate and the House of Representatives.

Article III, Section 15 provided that the House of Representatives shall choose a speaker and its officers and the Senate shall choose a president and its officers. The Speaker of the House of Representatives was to be a member of that body and the President of the Senate was to be a Senator.

Section 16 allowed each house to determine rules of its own proceedings.

Article V, Section 17, provided that when the office of the governor shall be vacant by death, resignation, removal from office, or otherwise, the President of the Senate shall exercise the office of governor until another governor shall be duly qualified.

The constitutional scheme created by the 1832 document clearly made the President of the Senate a constitutional office solidly implanted in the legislative branch of the government. The ex officio duty of the President of the Senate was to serve as Governor in the event that office became vacant. Manifestly, under the Constitution of 1832, the President of the Senate had the authority to exercise the legislative power to appoint committee chairmen, appoint committees, serve on committees and vote and debate on all issues. The President of the Senate was in fact a member of the Senate. He was not a member of the executive branch of the government. Thus he could freely and constitutionally exercise all of the legislative powers claimed today by the Lieutenant Governor, who is not a member of the Senate.

In the Constitution of 1869 the office of President of the Senate vanishes from the legislative department and the office of Lieutenant Governor re-emerges to be found in the executive department under Article V. Article V, Section 14 recreates the office of Lieutenant Governor and Section 15 provides that by virtue of his office as Lieutenant Governor he shall be President of the Senate. His legislative duties were limited to debating in committee of the whole and voting when there was an equal division in the Senate or on a joint vote of both houses. This represents the change from the original Lieutenant Governor's office created in 1817. There the Lieutenant Governor as President of the Senate could debate and vote on all issues but could not vote on a joint vote of both houses. Here the Lieutenant Governor as President of the Senate could only vote in the event of a tie.

Article V, Section 17 of the Constitution of 1869, set out the primary duty of the Lieutenant Governor, i.e. to serve as governor if that office became vacant by death or otherwise. In 1817 Mississippi began with an executive officer known as the Lieutenant Governor whose primary duty was to fill the office of governor when it became vacant and whose ex officio duty was to preside over the Senate with expressly limited legislative power. This system changed in 1832 with the creation of the legislative office of President of the Senate who was a member of the Senate vested with full legislative powers and who by virtue of that office had the ex officio duty of filling the office of governor when for any reason it became vacant. In 1869 Mississippi reverted to its original governmental plan and provided for a Lieutenant Governor with limited legislative powers exercised in an ex officio role.

As has been seen the delegates to the Constitution of 1890 expressly rejected the attempt to return the office of President of the Senate to its status in 1832, and instead maintained the executive office of Lieutenant Governor with limited legislative duties obtained only by the status of ex officio President of the Senate.

As we have seen this office was reborn in 1869 in the executive department of state government and was retained there by a small majority in the Constitution of 1890.

It is not, given our constitutional history, insignificant that the Lieutenant Governor's office was established under the executive department in 1890. A reading of Article V, Sections 128 through 132, makes it apparent that the Lieutenant Governor under the present constitution is closely associated with the office of governor. The two are elected at the same time, for the same term, in the same manner, and must have the same qualifications.

If the Lieutenant Governor's election is contested, the contest is tried and decided in the same manner as is a contest for the office of governor.

The primary function of the Lieutenant Governor under the 1890 Constitution is set out in Article V, Section 131.

Section 131. When the office of governor shall become vacant, by death or otherwise, the lieutenant governor shall possess the powers and discharge the duties of said office. When the governor shall be absent for the state, or unable, from protracted illness, to perform the duties of the office, the lieutenant governor shall discharge the duties of said office until the governor be able to resume his duties; . . .

When there was no constitutional office of Lieutenant Governor, this duty was the secondary function, ex officio, of the Senator who was elected by the Senate to serve as President of the Senate.

The secondary function of the Lieutenant Governor under the Constitution of 1890 is set forth in Article V, Section 129.

Section 129. The lieutenant governor shall, by virtue of his office, be president of the senate. In committee of the whole he may debate all questions, and where there is an equal division in the senate, or on a joint vote of both houses, he shall give the casting vote.

The Lieutenant Governor is President of the Senate in an ex officio capacity and his function is primarily ornamental. The only legislative power scheduled for the Lieutenant Governor as President of the Senate is the constitutional right to debate all questions in committee of the whole and break the tie votes that may occur in the Senate or in joint sessions of both houses. The Lieutenant Governor has no other legislative power. He may vote on no other occasion, either on the Senate floor or in the committee rooms.

As contrasted with the 1832 Constitution, Section 129 primarily serves to keep the Lieutenant Governor in the State Capitol during legislative sessions in the event that he is needed to serve as governor, and to avoid the possibility of tie votes. Unlike the President of the Senate of 1832, the Lieutenant Governor is otherwise unnecessary to the legislative process and has no other legislative powers.

The debate in the Convention of 1890 that surrounded the retention of the office of Lieutenant Governor makes it obvious that the delegates were aware that under the Constitution of 1832 the Senator who was the President of the Senate had the legislative power to appoint committees, name committee chairmen, refer bills to committees, and actually serve on the committees. Those delegates who sought to retain that form of power in the President of the Senate also sought to abolish the office of Lieutenant Governor. In this effort they were unsuccessful. The proponents of the office of Lieutenant Governor were equally aware that that office was primarily an executive office with the aforementioned very limited legislative powers. Had they intended to vest in the Lieutenant Governor as ex officio President of the Senate the right to appoint committees, name chairmen, refer bills to committees, and actually serve on committees, they had available the necessary votes to schedule those legislative powers in Section 129 so that there would be no question that the Lieutenant Governor as President of the Senate was essentially a legislative officer. They did not do so.

We must conclude from this that there was no intention in the Constitution of 1890 that the Lieutenant Governor would exercise the enormous legislative powers that the Constitution of 1832 had vested in the President of the Senate. Nothing in the Constitution of 1890 permits the Lieutenant Governor to amass unto himself enormous legislative powers that allow him to cast a long shadow across the halls of government. To the contrary, the office of Lieutenant Governor is clearly reduced to that of a part of a shadow cast by the governor himself. This was done by deliberate design.

In Moore v. Grillis, 205 Miss. 865, 39 So.2d 505 (1949), this Court held that the constitution does not grant specific legislative powers but limits them. If that be true then the legislative powers granted to the Lieutenant Governor are specifically limited to those set forth in Section 129. Any attempt by the Senate to enlarge upon that specific grant of power is unconstitutional.

If the Supreme Court allows the Senate to give the Lieutenant Governor legislative power in excess of the power expressly granted to that office by the constitution what is to prevent some future Senate taking from the office of Lieutenant Governor those powers expressly granted by the constitution. The majority opinion opens the door for the Senate to tell the Lieutenant Governor that he may not vote to break a tie vote in the Senate. All that would be required to bring this about would be the adoption of a Senate rule under the guise of the Senate's authority to make rules for its proceedings.

Article IV creates and defines the powers, duties and responsibilities of the legislative department of Mississippi Government. Sections 33, 35, 37, 38, 39, 55, and 99 are pertinent to the issues involved in this case.

Section 33 vests the total legislative power of this State in the legislature which consists of a Senate and a House of Representatives.

Section 35 provides that the Senate shall consist of members chosen every four years by the qualified electors of the several districts. This section sets forth who may be a member of the Senate. Section 99 makes it clear that the legislature shall not elect any other than its own officers with some exception. The Senate does not elect the Lieutenant Governor as President of the Senate and it follows that he then is not a legislative officer except as set forth by Section 129.

Section 38 also allows the Senate to elect its own officers and the Lieutenant Governor is not in that number.

Section 39 allows the Senate to choose from its own members a President Pro Tempore to act in the absence or disability of the Lieutenant Governor.

Section 37 provides for the manner by which one may become a member of the Senate.

The rules of procedure for the legislature are set forth in Article IV, Section 55, which in its entirety reads as follows:

Each house may determine rules of its own proceedings, punish its members for disorderly behavior, and, with the concurrence of two-thirds of the members present, expel a member; but no member, unless expelled for theft, bribery, or corruption, shall be expelled the second time for the same offense. Both houses shall, from time to time, publish journals of their proceedings, except such parts as may, in their opinion, require secrecy; and the yeas and nays, on any question, shall be entered on the journal, at the request of one-tenth of the members present; and the yeas and nays shall be entered on the journals of the final passage of every bill.

The majority seizes upon nine words from this entire section " Each house may determine rules of its own proceedings, . . ." and would have us believe that by virtue of these nine words the Senate may invest the Lieutenant Governor with some vague sort of status as a senator and then grant unto him full legislative powers that only legitimately existed in the President of the Senate when he was a constitutional officer under the Constitution of 1832. I find nothing in the Constitution of 1890 that allows the Senate of Mississippi to create a Senator out of the whole cloth.

Of equal importance is the majority's concept that once the Senate has made the Lieutenant Governor enough of a Senator, that the Senate may then, free of constitutional prohibitions, significantly expand the legislative power that may be exercised by the Lieutenant Governor.

As early as 1860 the High Court of Errors and Appeals of the State of Mississippi operating under the Constitution of 1832 held that the legislative power of this State was vested exclusively in the Senate and the House of Representatives and that the legislature could not surrender any portion of that authority or authorize its exercise by any other body or person without violating the constitution. Alcorn v. Hamer, 38 Miss. 652, 749 (1860). It is apparent to me that as the people of Mississippi delegated all legislative powers exclusively to the legislature of which the Senate is a part, the Senate may not in turn delegate those legislative powers to the Lieutenant Governor without the consent of the people. The language of the Constitution of 1890 does not provide the Senate with the consent of the people for this re-delegation of legislative authority.

As I view it the efforts of the Senate from 1890 until 1984 to vest the Lieutenant Governor with legislative power is based upon the false premise that the Lieutenant Governor serves as President of the Senate in the same manner as the President of the Senate under the Constitution of 1832. This simply is incorrect. What we are presented with is an effort on the part of the Lieutenant Governor and the Senate of the State of Mississippi to retain the office of Lieutenant Governor as provided for in the Constitution of 1890 and to engraft upon it fullsome legislative powers of the President of the Senate contained in the Constitution of 1832. I find such a "cut and paste" concept of constitutional interpretation to be totally unacceptable.

In my view the Constitution of 1890 does not permit the conclusion reached by the majority and therefore that result is unreachable.

Only by finding a constitution that does not exist in Mississippi may the majority justify the position that it takes.

One way this wishful conclusion may be accomplished is to return to the Constitution of 1832. Of course, that document did not allow for the office of Lieutenant Governor although it did provide for a President of the Senate elected from the Senate itself and fully vested with all legislative powers.

That President of the Senate was ex officio, the Governor when the Governor could not serve.

It appears to me that the majority attempts to restore the Constitution of 1832, as the majority denigrates the Lieutenant Governor's primary duty to step in as governor when the occasion demands it and exalts the Lieutenant Governor's legislative role as his primary function.

The majority not only seeks to retain the office of Lieutenant Governor from the 1890 Convention it seeks to add to that office the unlimited legislative power of the 1832 Constitution's President of the Senate. This the Convention of 1890 emphatically refused to do and it is far too late for this Court to reverse that decision.

The majority might also justify its opinion if it could amend the Constitution of 1890 along the following lines.

Article V, Section 129.

The lieutenant governor shall also be the president of the senate, and as such a member of the senate vested with full legislative powers. He may, as president of the senate, exercise any legislative power that may be exercised by any other senator elected to that body.

Unfortunately such a constitutional provision does not exist and this Court is without the authority to write it into the present constitution.

For the reasons already stated, I would affirm the judgment of the Circuit Court of Hinds County upon the direct appeal and reverse and render it upon the cross-appeal and enter judgment here for Senators Hale and Taylor.

I would declare that Senate Rules 5, 6, 7, 17, 18, 19, 36, 37, 38, 48, 65, 74, and 75 are expressly unconstitutional and violate Article I, Sections 1 and 2 of the Constitution of 1890. I would hold that the Lieutenant Governor may not exercise the legislative powers attempted to be conferred upon him through these rules by the Senate and I would expressly enjoin him from exercising those legislative powers.

As the trial court did not address itself to the penalty provision of Article I, Section 2, I would not propose that this Court do so.

I would deny the motion of Lieutenant Governor Dye to stay or in the alternative, to grant a writ of supersedeas as it is moot.

I would find the motion of Senators Hale and Taylor seeking payment in part of their legal expenses to be well taken and I would remand it to the trial court for determination.

In my view the judgment that should be rendered is as follows:

ON DIRECT APPEAL, AFFIRMED; ON CROSS-APPEAL REVERSED AND RENDERED.

HAWKINS, P.J., joins in this opinion.

HAWKINS, Presiding Justice, dissenting:

I join Justice Sullivan's dissent, and also express my gratitude to him for changing what I am now convinced were erroneous views.

There is but one question in this case. Is the lieutenant-governor exercising legislative powers in violation of our Constitution?

If all that was involved in this case was our state Senate's undoubted authority under Section 55 of our Constitution to make whatever rules it pleases to govern its proceedings, respect for and deference to that body would create an insurmountable barrier to any judicial umbrage on my part. I profoundly consider it none of the judicial branch's business how the Senate chooses to operate its affairs.

Slowly, and painfully I might add, I have inescapably become convinced, however, that far more is at stake here than the Senate simply adopting its own rules.

The question is whether the Senate by its rules has corrupted the second highest Executive office of our State by giving it legislative power prohibited by our Constitution. Such corruption occurs in two ways, first by bestowing powers upon it not given by our Constitution or any statute, and second by making the Chief Executive Office of this state, the Office of Governor, a secondary insofar as the duties owing by the lieutenant-governor to the Executive branch of government. Rather than the lieutenant-governor being a check on the Senate, as our Constitution intended in making him the presiding officer of the Senate, we have his office, by virtue of the license of enormous powers gratuitously bestowed upon it by the Senate, a check upon the Chief Executive Officer of our State. Thus, we have the tail wagging the dog. And, in case of a dispute between the two branches, there is no question but that the lieutenant-governor would know which side of his bread has the butter. The power given him by the Senate is far greater than the power given his office by our Constitution.

Of course, the ultimate duty of every official of this state is to serve the people, by abiding by and upholding our laws and our Constitution.

It is also the duty of an officer of any branch of government to see that his branch is not encroached upon or weakened by another branch. A failure to uphold his own branch is a failure to uphold the Constitution which made each branch separate and co-equal.

Has the Senate by its rules put the lieutenant-governor in a position of having two masters, the Executive Branch and the Legislative Branch?

Article I. Sections 1 and 2 provide:

ARTICLE I

DISTRIBUTION OF POWERS

Section 1. The powers of the government of the state of Mississippi shall be divided into three distinct departments, and each of them confided to a separate magistracy, to-wit: Those which are legislative to one, those which are judicial to another, and those which are executive to another.

Section 2. No person or collection of persons, being one or belonging to one of these departments, shall exercise any power properly belonging to either of the others. The acceptance of an office in either of said departments shall, of itself, and at once, vacate any and all offices held by the persons so accepting in either of the other departments.

Article I, Section 1 provides for the separation of powers into three distinct departments, Section 2 emphatically prohibits any person in one department exercising "any power properly belonging to either of the others."

The lieutenant-governor is a member of the Executive department of our state government. Our Constitution sets forth the duties and qualifications of his office immediately following those of the governor.

Article V. Executive, Section 129 states:

The lieutenant-governor shall, by virtue of his office, be president of the senate. In committee of the whole he may debate all questions, and where there is an equal division in the senate, or on a joint vote of both houses, he shall give the casting vote.

In this case the lieutenant-governor is just as clearly exercising awesome powers in the very heart of the legislative process, most notable of which is the appointment of all committees in the Senate. He has this legislative authority solely because the Senate has granted him this power.

Thus, surely no one will question that the lieutenant-governor is a member of the Executive department, and just as clearly exercising power properly belonging to one of the legislative branches of our state government.

In the absence of a grant of such authority elsewhere in the Constitution, a more blatant violation of Sections 1 and 2 of our Constitution can hardly be envisioned.

Where, then, is the authority for any possible claim the lieutenant-governor has the Constitutional authority to assume such powers? Section 129 and Article IV, Section 55 are the sole repository for any such notion.

Section 129 simply tells us that the lieutenant-governor by virtue of his office is president of the senate (which is nothing more than a presiding officer, see: Article I, Section III, clause 5 of the U.S. Constitution, making the vice-president "President of the Senate"), and further that he may join in debate, and in case of tie vote may cast a vote.

The first and only relevant clause of Section 55 states: "Each house may determine rules of its own proceedings."

There is nothing about either of the sections giving the lieutenant-governor the authority to exercise the plenary legislative powers the Senate by its rules has bestowed upon him.

Indeed, as noted, Sections 1, 2 and 129 and Article IV, Section 55 may be read in perfect harmony with no disquietitude by the lieutenant-governor simply fulfilling the duties expressly granted him by Section 129 and stopping there.

No plain reading of our Constitution suggests the lieutenant-governor has the authority to exercise the awesome additional powers bestowed upon him by the Senate. It simply does not exist.

It would have been quite simple for the drafters of our Constitution, had they so intended, to authorize the lieutenant-governor to assume such legislative powers as the Senate bestowed upon him. If they meant him to have such powers, why was it not spelled out? Why leave to conjecture by future courts this egregious trespass of Sections 1 and 2?

The majority opinion edifies us for 24 pages before it decides to address the core question, which it proceeds to discuss with extraordinary brevity. The majority concludes there is no violation by the lieutenant-governor.

[B]y virtue of his being President of the Senate, the Lieutenant-Governor is enough of a member of the Senate that he is eligible to have conferred upon him the legislative powers granted by the rules here at issue. [Emphasis added]

Majority Opinion, p. 346.

Why is the lieutenant-governor "eligible"? The majority does not enlighten us why this is true. This ipse dixit pronouncement is followed soon by another:

[H]is office merely serves to place him in the Senate, on the Senate side of the separation of powers barrier. As such Lt. Gov. Dye enjoys the powers at issue by virtue of the senate's action taken in accordance with its inherent delegatory authority.

Why does the Senate have the "inherent delegatory authority" to authorize the lieutenant-governor to violate Sections 1 and 2? Except for the majority ex cathedra pronouncement, none.

Finally, with a lilt the majority recites that interpreting our Constitution as it does provides Sections 1, 2, 55 and 129 with a "reading that gives maximum effect to such relevant provision and assigns each a meaning in harmony with that emanating in the others."

No doubt about the majority giving a "maximum effect" interpretation to Sections 129 and 55 — a "ballooning effect" is more precise — but is not giving any "maximum effect" interpretation to Sections 1 and 2. And, the "harmony" the majority finds in its interpretation escapes my musical ear. Again, the majority fails to give us any reason to support its statement.

There is no authority to support such statements. There is no need for any exercise in esoteric reasoning in reading these sections. The Constitution makes it plain what authority the lieutenant-governor has and stops. It defies reason to suggest Section 129 and Section 55 state more than what they plainly provide.

Any further power bestowed upon his office is an aggrandizement beyond its lawful authority.

Let me talk a little bit about power. In Trial of Thomas Paine, 22 How.St.Tr. 443 (1792), Thomas Erskine is reported with saying:

Arbitrary power has seldom or never been introduced into any country at once. It must be introduced by slow degrees, and as it were step by step lest the people should see its approach. The barriers and fences of the people's liberty must be plucked up one by one, and some plausible presences must be found for removing or hoodwinking, one after another, those sentries who are posted by the constitution of a free country, for warning the people of their danger.

Justice Sutherland, in Jones v. Securities Exch. Comm., 298 U.S. 1, 24, 80 L.Ed. 1015, 1025, 56 S.Ct. 654 (1936), makes the following observation:

Arbitrary power and the rule of the Constitution cannot both exist. They are antagonistic and incompatible forces; and one or the other must of necessity perish whenever they are brought into conflict.

Arbitrary power, I might add, is any power not clearly authorized by law.

Recently, in Frazier, et al. v. Attorney General, 504 So.2d 675 (Miss. 1987), we stated: "It is not the function of the Courts to dwarf the grandeur of the Constitution by decisions which stifle any of its promises."

If indeed the Senate deems the lieutenant-governor should be authorized by the Constitution to exercise the powers it has bestowed upon his office, the Legislature is free to submit an amendment to the Constitution to the people. Let them speak. All sides can openly debate the matter, and this would settle it. This Court has no business making such amendment by judicial interpretation.

What the Senate has done de facto, the majority of this Court now makes the law of this State, that the lieutenant-governor is in the Legislative branch of government and can exercise legislative powers. What will this Court decide when the statutes giving the lieutenant-governor executive powers to appoint members to executive boards and sit on executive boards are challenged? Will this Court then put him back into the Executive branch and say he is an executive officer as well? Does this office now have the Constitutional authority to assume and exercise whatever legislative and executive powers the Legislative sees fit to give it? Do Sections 1 and 2 have no meaning at all, insofar as the office of lieutenant-governor is concerned?

The majority has thrown us into a sea of uncertainty, doubt and confusion, all of which could have been easily avoided by our following the simple wording of 129 and holding that his authority ceases with the power specifically given him by that section. What Gordian knots of own creation await us?

In my respectful view, the authors of our Constitution had more intelligence than ever to have intended to make the lieutenant-governor's office a hermaphrodite in state government.

Courts are passive instruments of public policy. We can only act when impelled by litigants. When act we must, however, our decisions can be far reaching. Thus, in this case, we have the singular, if not unique, opportunity to correct a corrosive anomaly.

We are at the crossroad of an issue of some importance in state government. By interpreting the Constitution as it plainly reads, our state government "may move forward into broad, sunlit uplands." If we fail, we remain in the abyss, made more foreboding no doubt by the stamp of approval the highest court in this state places upon unauthorized power.

SULLIVAN, J., joins this opinion.