(dissenting). — The theory of our government, both state and national, is, that the three co-ordinate branches thereof, viz., the judicial, legislative and executive, are supreme within their respective constitutional limits. In practice this is only true in a measure, for the courts may declare a law to be unconstitutional or set it aside because in its passage the requirements of the organic law were not observed. But this is the limit of the jurisdiction as to matters pertaining to the legislative branch of the government. Hence, in my opinion, it is without the jurisdiction of the court to interfere with or in any manner direct a legislative officer in the discharge of any duty devolving upon him, however formal it may be. In other words, legislative officers, in discharging their functions, never act ministerially. Thus it is beyond the power of a court to compel the president of the senate or the speaker of the house to sign a bill. The signing is an act of legislation, and if courts can compel the performance of this act, this would be legislation on their part. This is in line with the views of the supreme court in State ex rel. v. Stone, 120 Mo. 428, wherein it was held that the governor of the state could not be compelled by mandamus to perform any duty pertaining to his office. In the application of this rule it may very well be argued that there is no distinction between the position of the defendant, as president of the council, who is a statutory officer, and the presi*629dent of the senate, who is a constitutional officer. But co'nceding that there is a distinction, and that the defendant may be compelled to perform a ministerial act, still, the act must be purely ministerial. However formal the act may be, if there is the least degree of discretion vested in him, mandamus will not lie. In the majority opinion it is decided that the signature of the defendant was only required for the purpose of identifying the ordinance. This was one of the purposes, but not the only one, for if it was, then it would have been much more appropriate to have required the signature of the clerk of the council to the'ordinance. But as stated by the learned judge who tried the case: “The law has prescribed when and under what circumstances the bill should be signed, and by imposing that duty on the president of the council necessarily calls for the exercise of his judgment as to whether or not all the requirements of the law in its passage have been complied with. This raises the signing of the bill above a mere ministerial act and makes it an act of legislation.” There is nothing in the case of R'y v. Governor, 23 Mo. 264, contradictory of this view. Of the cases cited, none approach so near the case at bar, as to the facts, as that of Ex parte Echols, 39 Ala. 698. By the constitution of Alabama it required a two thirds vote to pass a bill dividing a county. A bill of the kind was pending in the house and received the votes of two thirds of the members present. The speaker decided that the bill was lost for the reason that in his opinion the constitution required the affirmative votes of two thirds of all the members. There was an appeal to the house from his decision, in which he was sustained.
Thereupon one of the members of the house applied for a writ of mandamus to compel him to sign the bill and send it to the senate. The peremptory *630writ was denied. The supreme court in its opinion said: “The speaker decided that the bill had not passed by a vote of two thirds of that branch of the legislature, and an appeal was taken from that decision to the house and the house sustained the decision of the speaker. This was a question certainly within the jurisdiction of the speaker and house to pass upon, and is not a mere ministerial duty, but one that pertains to their.legislative functions, and is one over which the house has exclusive jurisdiction. No other department of the government can review its action in this respect without a usurpation of power.” The fact that the decision of the speaker was concurred in by the house is of no importance. If the speaker had the right to decide the question, the affirmance of his judgment by the house added nothing to its validity. The similarity of the two cases is that both officers refused to sign the bills for the reason that they had not in their opinion been legally passed. In the Alabama ease the speaker of the house decided that the bill had not received the requisite vote. In the case here the defendant decided that the ordinance had not been read before the council on three separate days as required by the charter, and therefore had not been legally adopted.
Although it be conceded that the defendant is amenable to the writ, and that the affixing of his signature is a purely ministerial act, yet under the circumstances the circuit court properly denied the peremptory writ, for the reason that the ordinance was not read before the council on three separate days. The oral evidence clearly show this to be true. In America the writ of mandamus is demandable asa matter of right, but as many courts have decided, is “grantable at discretion,” that is, it should not be issued in cases of doubtful right.
This is the doctrine of all the cases. State ex rel. *631v. R. R., 77 Mo. 143; High, Ex. Rem., sec. 9; School Dist. v. Gooding, 120 Mo. 67; State v. Williams, 99 Mo. 291; State v. Newman, 91 Mo. 445; Wear v. Water Works Co., 2 Rus. & M. 470; Waldron v. Lee, 5 Pick. 323; Com. v. Canal Co., 2 Pen. & W. 517; People v. Hatch, 33 Ill. 9; Free Press v. Nichols, 45 Vt. 7; People v. Forquer, 1 Ill. 68; Effingham v. Hamilton, 68 Miss. 523; Collins v. State, 8 Ind. 344; Moses, Mandamus, p. 18.
Thus in the Gooding case, supra, the court refused to compel a county clerk to extend taxes upon the tax books when such taxes were not legally assessed. In the Forquer case, supra, it was sought to compel the defendant, who was the secretary of state, to countersign a commission issued by the governor to the relator as paymaster general of the state. The court decided that the governor had issued the commission without warrant of law, and for that reason it declined to compel the defendant to perform the ministerial act. To the same effect is Collins v. State, supra. In the case at bar the parol évidence conclusively shows that the ordinance was read but once before the council. Afterward, it was read twice by its title, and in the committee of the whole it was read by sections and amended, and on the same day was put on its final passage without engrossment and without being read before the council as such. The reading by the title is attempted to be justified on the ground that it is customary in legislative bodies to read bills by their titles, and that reading a bill by its title is in legal contemplation a reading of the bill. This is the rale in the enactment of laws by congress, and it is claimed that the practice is in vogue in the legislature 'of the state. The answer to this is that congress is free to make its own rules, and that the violation of the constitution by the state legislature furnishes no legal *632excuse for the violation of the charter by the city council of the city of St. Louis. Judge Dillon, in his work on municipal corporation, says that “when the mode of enacting ordinances is prescribed, it must be pursued.” 1 Dillon, Mun. Corp., sec. 309. The provision'in the charter of the city of St. Louis requiring ordinances to be read on three different days is mandatory. It is not a mere rule of procedure, but is intended to prevent hasty and unwise legislation. This object would not be attained by reading an ordinance by its title.
For the reasons stated, I think that the judgment of the circuit court ought to be affirmed.