Dye v. State ex rel. Hale

For the Court:

I. Overview

The powers of the Lieutenant Governor of the State of Mississippi are at issue this day. Historically considered enigmatic if not schizophrenic by the political scientist, a fifth wheel on the wagon of government and often a political graveyard in the parlance of the practical, the office of our Lieutenant Governor has in recent years grown greatly in influence and effect, so much so that two Senators have called upon the Judicial Department of the state to consider critically the extent, nature, source — and legality — of powers now being exercised by the present occupant of that office.

The Circuit Court held the Lieutenant Governor an officer of the Executive Department and as such, by our constitutional mandate that the powers of government be separate, precluded from the exercise of any powers properly belonging to the Senate, excepting only those powers expressly conferred upon him by the Constitution. We take a different view. The Senate has by constitutional authority broad powers to make rules regarding the conduct of its business. Constitutionally, the Lieutenant Governor is the President of the Senate. As such he is one eligible to have conferred upon him such authority as the Senate by rule may from time to time provide. As explained more fully below, we reverse and render on the principal appeal.

II. Proceedings Below

On January 24, 1986, Senators Richard Stephen Hale and Gene Taylor filed their complaint in the Circuit Court of Hinds County, Mississippi, naming as defendant, Lieutenant Governor Brad Dye. In their complaint the Senators sought a declaratory judgment that Senate Rules 5, 6, 7, 17, 18, 19, 36, 37, 38, 48, 65, 74 and 75 violate Article I, Sections 1 and 2 (separation of powers provisions) of the Mississippi Constitution of 1890, and that, insofar as Lt. Gov. Dye exercises powers under the purported authority of those rules, he proceeds in violation of the Constitution. Principal among the rules and power exercises challenged are those involving the Lieutenant Governor’s almost plenary powers respecting appointment of committees and referral of bills to committees. The vice said to be found in these rules is that they constitute an unconstitutional delegation of legislative power to the Lieutenant Governor who is a member of the Executive Department of government. The Complaint finally sought entry of an order enjoining Lt. Gov. Dye from exercising the powers conferred on him by these rules.

Following Lt. Gov. Dye’s answer, Senators Hale and Taylor filed a motion for judgment on the pleadings. Dye responded, opposing that motion and filing his motion for summary judgment. Thereafter, Senators Wendell Hobdy Bryan, William W. Canon, Walter A. Graham, Alan M. Heflin, C.R. Montgomery and F.M. Smith, Jr. filed a motion for leave to file a brief and present argument as amicii curiae, which the Circuit Court granted.

On November 4, 1986, the Circuit Court entered a declaratory judgment holding that Lt. Gov. Dye was a member of the Executive Department of the government, that Senate Rules 7, 36, 37, 38, 48, 74 and 75 were unconstitutional, and that insofar as Lieutenant Governor Dye exercised powers provided in those rules he exercised legislative powers prohibited to him by Sections 1 and 2 of the Constitution. The attack upon Senate Rules 5, 6, 17, 18, 19 and 65 was rejected.

Lt. Gov. Dye timely perfected the present appeal, challenging so much of the declaratory judgment as invalidated Senate Rules 7, 36, 37, 38, 48, 74 and 75 and held unlawful his exercise of the powers conferred by those rules. Senators Hale and Taylor have cross-appealed and attack so much of the judgment below as left in force Senate Rules 5, 6, 17, 18, 19 and 65.

Senators Bryan, Canon, Graham, Heflin, Montgomery, and Smith have filed a brief as amicii curiae, supporting in substantial part the view of Lt. Gov. Dye and urging reversal.

III. Pre-Merits Issues

A. Subject Matter Jurisdiction

Lieutenant Governor Dye first objects to the Circuit Court’s determination that it had subject matter jurisdiction of this action. The essence of the point, as we perceive it, is that the suit brought by . Sens. Hale and Taylor, as Plaintiffs, was in the nature of a quo warranto action and that, because of certain alleged deficiencies in the Senators’ efforts bring themselves within the strictures of that ancient writ, the complaint should have been dismissed. Blended with these apples are an orange and a grapefruit in the form of a challenge to the Senators’ standing to sue and the claim that only the Attorney General could bring a suit such as this — the same Attorney General, we might add, who has elected to represent Lt. Gov. Dye and present to us this assorted pre-merits procedural fruit basket.

We begin with the proposition that the subject matter jurisdiction, a non-confessable jurisdiction, turns upon the well pleaded allegations of the complaint. In Re City of Ridgeland, 494 So.2d 348, 350 (Miss.1986); Brown v. Brown, 493 So.2d 961, 963 (Miss.1986); American Fidelity Fire Insurance Co. v. Athens Stove Works, Inc., 481 So.2d 292, 296 (Miss.1985). Our circuit courts are courts of general subject matter jurisdiction having authority to hear and adjudge all “matters civil” subject matter jurisdiction of which is not vested in some other court. Miss. Const. Art. 6, § 156 (1890); Miss.Code Ann. § 9-7-81 (1972); Hall v. Corbin, 478 So.2d 253, 255 (Miss.1985). Considering the nature of the primary claim, we find no exclusive vesting in any other court of jurisdiction to hear and decide claims that an officer of one department of government is exercising power constitutionally vested in another department. Considering the nature of the relief sought, that the Lieutenant Governor’s exercise of certain powers in the Senate be declared unconstitutional and that he hereafter “be debarred from exercising the ... [same],” we find the case akin to those historically within circuit court jurisdiction, to-wit: quo warranto proceedings. See Miss.Code Ann. § 11-39-3 (1972). Subject matter jurisdiction has not been altered by the procedural demise of the quo war-ranto writ. See Rules 2, 81(c) and 82(a), Miss.R.Civ.P. Without question, the allegations of the complaint were sufficient to confer upon the Circuit Court authority to proceed further. See Penrod Drilling Co. v. Bounds, 433 So.2d 916, 924-25 (Miss.1983) (concurring opinion).

In their complaint Sens. Hale and Taylor allege that Lt. Gov. Dye is a member of the Executive Department of the government and that he is exercising legislative powers within the Senate, one house of the Legislative Department of government in violation of Miss. Const. Art. 1, §§ 1 and 2 (1890). Sens. Hale and Taylor thus state a claim upon which relief can be granted, see Stanton & Associates, Inc. v. Bryant Construction Company, Inc., 464 So.2d 499, 504-06 (Miss.1985), much the same as was done in the converse setting of Alexander v. State, ex rel. Attain, 441 So.2d 1329 (Miss.1983), wherein it was alleged that members of the Legislative Department of government were exercising powers at the core of and in the upper echelons of the Executive Department of government. It is a claim which, if proved and if not thwarted by defenses, would entitle Sens. Hale and Taylor to relief.

B. The Senators’ Standing To Sue

The question of standing we resolve similarly against Lt. Gov. Dye, that also being a matter wherein we look only to the allegations of the complaint. Again, we are forbidden to assume any view of the correctness or ultimate merits of that complaint. Sens. Hale and Taylor allege that, by his exercise of powers in the legislative branch, Lt. Gov. Dye has deprived them of power and prerogatives lawfully theirs as Senators. The ongoing actions of Lt. Gov. Dye certainly have an adverse impact upon Sens. Hale and Taylor sufficient to confer upon them standing to sue. See Canton Farm Equipment, Inc. v. Richardson, 501 So.2d 1098, 1105-09 (Miss.1987); see also Bowsher v. Synar, 478 U.S.-,-, 106 S.Ct. 3181, 3186, 92 L.Ed.2d 583, 593 (1986). We refuse to relegate to the Attorney General either the exclusive authority to bring a suit such as this or the discretion whether and how that authority should be exercised. Cf. Frazier v. State of Mississippi, 504 So.2d 675, 691-92 (Miss.1987).

C. Justiciability

Lt. Gov. Dye also attacks the Circuit Court’s jurisdiction on the grounds that this case involves a political question and therefore a non-justiciable controversy. Specifically, Dye argues that courts have no authority to examine rules of procedure passed by a legislative body for the governance of its own deliberations, since each body is supreme within the powers conferred by the Constitution, citing 16 Am. Jur.2d Constitutional Law §§ 312, 31 and Witherspoon v. State Ex Rel. West, 138 Miss. 310, 103 So. 134 (1925).

Sens. Hale and Taylor counter with the argument that their suit presents a claim of rights arising under the Mississippi Constitution of 1890 and as such can only be decided by the Judicial Department of this state’s government. Alexander v. State Ex Rel. Allain, 441 So.2d 1329 (Miss.1983). See also, Ex Parte Alabama Senate, 466 So.2d 914, 919-21 (Ala.1985) (dissenting opinion).

Without doubt we will as a general rule decline adjudication of controversies arising within the Legislative Department of government where those controversies relate solely to the internal affairs of that department. Barnes v. Ladner, 241 Miss. 606, 616, 131 So.2d 458, 461 (1961). On the other hand, legislators nor the bodies in which they serve are above the law, and in those rare instances where a claim is presented that the actions of a legislative body contravene rights secured by the constitutions of the United States or of this state, it is the responsibility of the judiciary to act, notwithstanding that political considerations may motivate the assertion of the claims nor that our final judgment may have practical political consequences. See Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 940-44, 103 S.Ct. 2764, 2778-80, 77 L.Ed.2d 317, 338-40 (1983); Powell v. McCormack, 395 U.S. 486, 516-22, 547-49, 89 S.Ct. 1944,1977-78, 23 L.Ed.2d 491, 514-17, 531-33 (1969). Where, as here, it is alleged that one arguably a member of the Executive Department of government is exercising powers properly belonging to the Legislative Department, we are of necessity called upon to decide whether the encroachment exists in fact and, if so, whether it contravenes the mandate of Sections 1 and 2 of our Constitution that the powers of government be separate. See Alexander v. State Ex Rel. Allain, 441 So.2d 1329, 1333 (Miss.1983). We have authority to adjudicate the claims tendered this day.

Moreover, it is within our actual and judicial knowledge that the role, responsibility and authority of the office of the Lieutenant Governor have become matters of great public interest and no little controversy. There is a public need that the legal issues tendered be authoritatively resolved. Not only do we have the authority to decide today’s questions; we have a public responsibility to do so. See Frazier et al. v. State of Mississippi, 504 So.2d 675, 692-93 (Miss.1987).

And with regard to the claim that today’s case involves a political question in which the judiciary should not become enmeshed, it is much too late to reclaim our virginity. That great constitutional and legal questions may become topics of political and even partisan controversy should never be employed by this Court as an excuse to duck its responsibility to adjudicate the legal and constitutional rights of the parties. Suffice it to say that this Court has for years entertained and decided on the merits controversies wherein parties claimed that members of one department of government were exercising powers in another in violation of the constitutional mandate for separation of powers. See, e.g., Alexander v. State Ex Rel. Allain, 441 So.2d 1329 (Miss.1983); Clark v. State Ex Rel. Mississippi State Medical Association, 381 So.2d 1046 (Miss.1980); Edward Hines Yellow Pine Trustees v. State Ex Rel. Moore, 133 Miss. 334, 97 So. 552 (1923); Broadus v. State Ex Rel. Cowan, 132 Miss. 828, 96 So. 745 (1923); Jackson County v. Neville, 131 Miss. 599, 95 So. 626 (1923).

D. Waiver and Estoppel/Exhaustion of Legislative Remedies

Lt. Gov. Dye next argues that Sens. Hale and Taylor have waived the claims they assert. This argument proceeds from the facts that they voted for the rules they now challenge. The argument is that the two Plaintiffs have been members of the Senate since the beginning of the 1984 legislative session, and, at the beginning of that session, the challenged Senate rules were adopted without a dissenting vote. Because there is no record that the Senators opposed the adoption of the challenged rules, Lt. Gov. Dye says they have waived the right to challenge the constitutionality of such rules and are estopped from doing so as well. Dye relies on two quo warran-to cases decided by this Court in asserting that the defenses of waiver and estoppel are available in an action such as this. See State Ex. Rel. Jordan v. Mayor & Commissioners of Greenwood, 157 Miss. 836, 129 So. 682 (1930); State Ex Rel. Patterson v. Land, 231 Miss. 529, 95 So.2d 764 (1957). Additionally, Dye argues that the Senators failed to exhaust their nonjudicial remedies before filing this lawsuit. Specifically, Dye argues that the Senators should have utilized Senate Rules 29 and 30 which allow for a suspension of the Senate rules and an adoption of temporary rules.

Before considering these points, we must examine the facts. The Senate Journal of 1984 reflects that on the first day of the session, Senators Hale and Taylor were sworn in as members of the Mississippi State Senate. See Journal of the Senate of the State of Mississippi, p. 7 (1984). Immediately after the Senators were sworn in, Senate Resolution 1, consisting of proposed Senate Rules, was introduced. Included in these rules are those challenged in the instant case. The Journal reflects that there was a vote on these rules and they were all adopted. See Senate Journal at p. 24. Specific votes of Senators were not recorded. All that is reflected upon examination of the Journal is that the rules were adopted. There is no indication whether there were any “Nay” votes, and, if so, by whom cast.

Little reflection is required to understand that Lt. Gov. Dye’s argument must fail, for its acceptance would have the inescapable effect of establishing a new method of amending the Constitution — by waiver and estoppel. Alexander v. State Ex Rel. Attain, 441 So.2d 1329 (Miss.1983) stands as authority for rejection of Dye’s argument. The processes attacked in Alexander had been going on for decades with the implied and express consent of numerous Governors. Under Dye’s theory, we would have had to hold in Alexander that prior Governors’ acquiescence had operated to constitutionalize the substantial legislative encroachments upon executive power. Similarly, we decline to require exhaustion of nonjudicial remedies in the case of a constitutional challenge such as that mounted here.

IV. Historical Background

A. Origins Of The Office Of Lieutenant Governor

The office of Lieutenant Governor exists by virtue of the provisions of Miss. Const. Art. 5, § 128 (1890). The general powers and duties of its occupant are prescribed by Art. 5, §§ 129-132 (1890).

Section 128 provides that “there shall be a lieutenant-governor.” Central to today’s controversy is Section 129 which provides

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 office was originally created in the Mississippi Constitution of 1869. See G. Ethridge, Mississippi Constitutions, p. 248 (1928). In language identical to that found in the present Section 129, the 1869 Constitution made the Lieutenant Governor president of the Senate and conferred upon him the authority to debate ail questions in the committee of the whole and to vote where necessary to break a tie. See Journal of the Proceedings in the Constitutional Convention of the State of Mississippi, 1868, p. 728 (1868) (Art. V, § 15, Miss. Const.1869).

Pursuant to this constitutional mandate, the Mississippi Senate in 1870 adopted rules assigning certain duties to the Lieutenant Governor as presiding officer. Those duties included the appointment of committees. See Journal of the Senate of the State of Mississippi, p. 67 (1870) (Rule 30).

B. The 1890 Constitution

The 1890 convention opened with proposals by its President, S.S. Calhoon, including one to abolish the office of Lieutenant Governor. He assigned the matter to the convention’s Executive Committee. That Committee on September 25, 1890, reported its proposals for the executive branch to the convention. The committee proposed to retain the office of Lieutenant Governor as described in the 1869 Constitution. It proposed, however, to set the Lieutenant Governor’s salary at $500 per year and no longer to permit that salary to be fixed by the Legislature.

Delegates to the convention attacked this compensation as a “luxury.” Delegate George C. Dillard offered a substitute to make the salary the same as that of the Speaker of the House. His remarks were reported as follows:

Mr. Dillard wanted the office continued, but he concurred in the objection very generally expressed, that the compensation as now fixed amounted to a luxury. No man should receive money from the public treasury unless he has an opportunity of rendering services.

The convention adopted the substitute and next considered a motion by delegate W.A. Boyd to strike, all mention of the Lieutenant Governor. Delegates argued the people were against the office of Lieutenant Governor, it was an invention of the Convention of 1868, and it was a “fifth wheel to [the] wagon” of government. On a vote of 45 to 37, the Boyd motion passed. The proposal, however, was held on a motion to reconsider.

On October 22, 1890, the convention reconsidered. In favoring reconsideration, Delegate J.B. Chrisman argued that it was

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, [emphasis added]

The motion to reconsider prevailed by an affirmative vote of 54 to 47 and what became § 129 of the Constitution of 1890 was adopted. See Journal of Proceedings 457.

C. Senate Rules of 1892 and 1912

The 1890 Constitution provides in Art. 4, § 55 that “[e]ach house may determine rules of its own proceedings_” Pursuant to this section, the Senate first adopted rules in 1892. Those rules provided that the lieutenant governor would appoint all standing committees of the Senate and would serve on the Rules Committee. Senate J. 120, 125 (1892) (Rule 38).

These rules did not specifically address reference of bills to committees or control over Senate employees. A comprehensive 1912 revision of the Senate rules, however, placed both these matters within the jurisdiction of Lieutenant Governor as president of the Senate. See Senate J. 54 et seq. (1912) (Rules 6, 7, 8, 17, 18, 38). However, the Mississippi Senate’s rules have historically interpreted the Lieutenant Governor’s powers to include the selection of committees and the assignment of bills. Unlike State of Missouri ex rel. Danforth v. Ca-son, 507 S.W.2d 405, 413 (Mo.1974), upon which the Senators rely for support, the legislative history shows that this was contemplated by the framers of the Mississippi Constitution.

D. The Office Today

Prior to the present Lieutenant Governor’s assumption of duties in 1980, the office of Lieutenant Governor was not the source of power that it is today in the Senate. Dye’s predecessors had discovered that the Lieutenant Governor’s post was by no means an automatic stepping stone to higher office. Indeed, when Dye assumed the duties of the office in 1980, and proposed adoption of new Senate rules, the office of Lieutenant Governor took on a different flavor. Illustrations of this newfound power abound since the new rules were adopted in 1980 and the present rules under attack in this appeal were adopted in 1984. Moreover, the role of the Lieutenant Governor has been a hotly debated issue among members of the Constitution Study Commission appointed by Gov. Allain to formulate a proposal for a new state constitution. Suffice it to say that from a position of power, the office of Lieutenant Governor today is far more attractive to would be public servants than once it was.

Although the Lieutenant Governor has attained greater powers in his role as President of the Senate, his authority in the Executive Department remains the same as it always has been. When the Governor is incapacitated or out of the state, the Lieutenant Governor “shall discharge the duties of said office until the Governor be able to resume his duties.” (Art. 5, § 131) Otherwise, insofar as the Constitution is concerned, the Lieutenant Governor qua executive officer has nothing to do.

V. The Merits

A. Canons Of Construction

The briefs of the parties and amicii curiae are filled with admonitions regarding correct canons of constitutional interpretation, only two of which we find helpful.

First, constitutional provisions should be read so that each is given maximum effect and a meaning in harmony with that of each other. St. Louis & San Francisco Railway Co. v. Benton County, 132 Miss. 325, 330, 96 So. 689, 690 (1923); see also Tom v. Sutton, 533 F.2d 1101, 1105-6 (9th Cir.1976). To the extent that conflict may appear, specific provisions such as Sections 55 and 129 control over general provisions such as those of Sections 1 and 2. 16 Am.Jur.2d Constitutional Law § 103 n. 6 (1979).

Second, our Constitution is a document presumed capable of ordering human affairs decades beyond the time of its ratification under circumstances beyond the prescience of the draftsmen. Frazier v. State of Mississippi, 504 So.2d 675, 694 (Miss.1987); Alexander v. State Ex Rel. Allain, 441 So.2d 1329, 1333 (Miss.1983). We should read and enforce the Constitution in the manner which best fits its language and best serves our state today. See Alexander v. State Ex Rel. Allain, 441 So.2d 1329, 1334, 1339 (Miss.1983); Stepp v. State, 202 Miss. 725, 729-30, 735-36, 32 So.2d 447, 447-48, 33 So.2d 307, 309 (1948); Albritton v. City of Winona, 181 Miss. 75, 102-03, 178 So. 799, 806 (1938); Moore v. General Motors Acceptance Corp., 155 Miss. 818, 822-23, 125 So. 411, 412 (1930).

B. Mississippi’s Separation Of Powers Doctrine

At its center this appeal presents the question whether the occupant of the office of Lieutenant Governor may consistent with the constitution control the makeup of Senate committees and the referral of bills to those committees. The Circuit Court held that the office of Lieutenant Governor was within the Executive Department of government and the powers at issue were powers properly belonging to the Legislative Department. Accordingly, the Circuit Court held that Lt. Gov. Dye was contravening the separation of powers barrier erected between executive and legislative.

That barrier has been erected in Sections 1 and 2 of Article 1 of the Mississippi Constitution of 1890 which provide:

Section One. 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 Two. 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 these departments shall, of itself, and at once, vacate any and all offices held by the person so accepting in either of the other departments. [Emphasis added]

Miss. Const. Article I, §§ 1 and 2 (1890).

In 1983 in the context of a plethora of legislative attempts to arrogate to that body powers properly belonging to the Executive Department of our government, we found great force and vigor in these provisions. Alexander v. State Ex Rel. Allain, 441 So.2d 1329 (Miss.1983). We recognized that the 1890 Constitution had strengthened the mandate that the three great powers of government be separate. Alexander, 441 So.2d at 1335. Of course, not every act is the exercise of a power. Not all “overlapping” is constitutionally proscribed, particularly regarding low level “administrative matters.” Alexander, 441 So.2d at 1337. But where the acts are “ongoing and are in the upper level of governmental affairs” and have a substantial policy-making character, the “trespass reaches constitutional proportions.” Alexander, 441 So.2d at 1337. The essence of Alexander is that no officer of one department may perform a function “at the core” of the power properly belonging to either of the other two departments. Alexander, 441 So.2d at 1345-46.

Alexander, however, does not decide today’s question. The question whether the Lieutenant Governor could consistent with the constitution exercise the senatorial powers here challenged was not there presented, directly or by fair implication. To be sure, Alexander recognized that certain executive power had been vested in the Lieutenant Governor. Alexander, 441 So.2d at 1344. The converse proposition— the extent to which the Lieutenant Governor could in addition exercise powers in the Senate — was not addressed.

Alexander contains dicta to the effect that there are

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.

Alexander, 441 So.2d at 1335.

This language does not — and could not— alter the fact that Sections 129-132 inescapably provide an exception to the separation mandate by vesting in the Lieutenant Governor some authority in the Executive Department and other authority in the Legislative Department, thus making him an officer of both departments. Nor does it or anything else in Alexander answer the question whether under Section 55 the Señate might confer upon its president power properly belonging to the Senate.

C. Are The Powers Inherent In The Office Of President Of The Senate?

Lt. Gov. Dye argues that Section 129 makes the Lieutenant Governor, by virtue of his office, President of the Senate and that certain powers inhere in the office among which are the powers controverted this day. Put otherwise, we are asked to define the office “President of the Senate” as including these authorities. We decline to do so.

No doubt the individual who occupies the office of President of the Senate has the authority to do something more than merely engage in debate in the committee of the whole and cast tie breaking votes, but no issue tendered requires an identification of that “something more” and nothing said here should be taken as indicating any view on the point. It is sufficient for today that the power to control the assignment of Senators to standing, select and conference committees as well as the power to control referral of bills to committees are not among the powers inherent in the office of President of the Senate.

We reach this conclusion not unaware of Lt. Gov. Dye’s reference to a learned treatise published in the mid-1800s which states, “[T]he duties of the presiding officer of a legislative assembly ... are ... [T]o receive and submit in the proper manner all motions and propositions present by the members_” L. Cushing, Elements of Law and Practice of Legislative Assemblies in the United States of America 112-13 (1856). Referring bills to committees and appointing senators to committees is a presiding officer power conferred by the Senate upon its President, the Lieutenant Governor as the President of the Senate.

Cushing also states, “[I]n the legislatures of the United States, the presiding officer of the lower, or popular branch is called the speaker; and, in some of them, the same appellation is given to the presiding officer of the other branch; but, in the greater number, the title of the latter is the president.” Cushing at 110-11. This is true in the Mississippi Legislature.

To like effect is the commentary of the late Justice of this Court, George H. Ethridge in his 1928 treatise, Mississippi Constitutions:

This is a very important office, even though the lieutenant governor may never be called upon to act as governor, as he is president of the Senate, and usually has the power to appoint the committees of the Senate; and by virtue of such power can largely direct the action of the Senate, because legislation is very largely controlled by committees who have charge of the bills and to whom they must be referred under another section of the Constitution. The lieutenant governor usually refers the bills, when they are introduced, to such committee as he may desire. It is true the Senate may refer them by vote, or may afterwards control the committee by a majority, but such is rarely done. [Emphasis added]

G. Ethridge, Mississippi Constitutions, p. 249 (1928).

We have no doubt of the correctness then and now of the statement of fact that the duties of the presiding officer of a legislative assembly often include the appointment of committees and the receipt and submission of motions and bills, but this begs the question, which regards the authority under which these duties are given.

But, if the powers at issue are not inherent in the office of President of the Senate, what is their nature and their source? The rules conferring these powers, it will be recalled, fall into two general categories. Senate Rules 7, 36, 37, 38 and 48 empower the Lieutenant Governor to control the membership of all standing, select and conference committees, including the chairman and vice-chairman thereof. Rules 74 and 75 empower the Lieutenant Governor to control the referral of bills to committees. The Circuit Court found that the combined effect of these rules goes “straight to the heart of the legislative process,” a conclusion which is obviously correct.

Lt. Gov. Dye, however, in brief and at oral argument has insisted that these rules do not authorize him to exercise legislative powers. We are told that legislative powers include the introduction of bills, debate thereon and ultimately the casting of votes for or against same, and nothing else. Yet as any freshman political science student knows, the power to appoint committees and control referral of bills to and among the various committees are powers of great practical effect in the Senate.

The point is that nothing turns on whether the powers at issue are legislative powers, generic variety. We are concerned with whether these are powers vested in or inherent in the Senate. In this regard we perceive, without a shadow of a doubt, these are “power[s] properly belonging to” the Senate within the meaning and contemplation of Miss. Const. Art. 1, § 2 (1890). As such, the more important inquiry becomes whether the Lieutenant Governor may exercise those powers consistent with the Constitution.

D. The Senate’s Rule Making Power

The powers at issue being among those properly belonging to the Senate, it follows on principle that the Senate possesses inherent authority to direct the manner of their exercise. That inherent authority is augmented by Article 4, § 55, of the Mississippi Constitution which provides, “[E]ach house may determine rules of its own proceedings_” Miss. Const. Art. 4, § 55.

In Witherspoon v. State Ex. Rel. West, 138 Miss. 310, 324-25, 103 So. 134, 138 (1925), this Court wrote:

[t]he words in which the grant of power to the Senate to adopt rules of procedure is couched are about as broad and comprehensive as the English language contains, and this Court is without the right to ingraft any limitation thereon.

The legislature is a co-ordinate department of the government, and each house thereof is supreme in its own sphere, and no other department of the government has the right to interfere therewith.

The Court concluded by saying the Senate’s interpretation of its rule making power “should not be departed from, unless manifestly wrong.” 138 Miss, at 326,103 So. at 138-39.

While this Court certainly has the authority to declare Senate rules unconstitutional, the Court should not do so unless those rules are “manifestly” beyond the Senate’s constitutional authority. Indeed, this Court has zealously defended its authority to make rules regulating procedures within the Judicial Department free of any restrictions found in statutes. Newell v. State, 308 So.2d 71, 76 (Miss.1975); Order Adopting the Mississippi Rules of Civil Procedure, May 26, 1981; Order Adopting Mississippi Rules of Evidence, September 24, 1985. Considerations of comity militate in favor of this Court’s restraint in the face of a challenge to the Senate’s similar prerogative to adopt its own rules, absent manifest unconstitutionality of a type not present here.

The Senate has adopted Senate Rules 7, 36, 37, 38, 48, 74 and 75 as its own rules of proceedings. The assignment of senators to committees is merely a procedural mechanism to break the mass body of the Senate into small groups that can more effectively deal with the review, amendment if necessary, and reporting of Senate bills to the entire Senate. Likewise, the manner of reference of bills to committees is procedural. Bills are referred to committees for study and for modification if necessary. The Senate as a whole could not effectively achieve this task. The reference of bills merely allows the Senate to function more efficiently. The Senate Rules at issue are rules of procedure within the meaning and contemplation of Article 4, § 55, of the Constitution. They are rules respecting the details of the exercise of those legislative powers that inhere in the Senate.

E. Is The Lieutenant Governor An Eligible Receiver?

But, notwithstanding these conclusions, is the individual who occupies the office of Lieutenant Governor one eligible to have conferred upon him or her the powers enumerated in Senate Rules 7, 36, 37, 38, 48, 74 and 75? The Circuit Court held that the Lieutenant Governor is a member of the Executive Department and that, by virtue of the separation of powers doctrine, he is ineligible to receive the powers so delegated nor to exercise them if delegated. The point loses force when we recognize that there is no natural law of separation of powers. Rather, the powers of government are separate only insofar as the Constitution makes them separate. The Lieutenant Governor is unusual in that he is made an officer of — and given powers in— two branches of government. See Miss. Const. Art. 5 §§ 128, et seq.

We begin with the premise that surely the Senate may confer these powers upon one or more of its members. By virtue of Section 129 of the Constitution, the Lieutenant Governor is made President of the Senate and given certain powers not relevant here. By 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. The Lieutenant Governor does not possess these powers by reason of any authority inherent in the office of President of the Senate. His 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. The manner of his exercise of these powers is for the moment regulated by the Senate’s rule-making action taken under the authority of Section 55 of the Constitution. The Senate could amend or rescind those rules to modify or withdraw the powers at issue at any time it wished, consistent with the Constitution.

The combined effects of subparts C, D and E above provide our Constitution — and particularly Sections 1, 2, 55 and 129 thereof — a reading that gives maximum effect to each relevant provision and assigns each a meaning in harmony with that emanating in the others. It is consistent with the legitimate political needs of our state in 1987. All of this leads to the conclusion that there is great merit in Lt. Gov. Dye’s Assignment of Error No. 2. The Circuit Court erred when it held that Senate Rules 7, 36, 37, 38, 48, 74 and 75, individually or collectively, violate the separation of powers mandate of Article 1, §§ 1 and 2, of the Mississippi Constitution of 1890.

VII. Cross-Appeal

If the Senate has constitutional authority to confer upon the Lieutenant Governor the powers enumerated in rules 7, 36, 37, 38, 48, 74 and 75, it follows without the necessity of further exposition that the Senate might also confer upon him the far less significant powers found in Rules 5, 6, 17, 18, 19 and 65. The cross-appeal of Sens. Hale and Taylor is denied.

VIII. Final Judgment

By reason of and consistent with the foregoing, a declaratory judgment should be entered in favor of Lt. Gov. Dye and against Sens. Hale and Taylor respecting Dye’s exercise of the powers conferred upon him by Senate Rules 5, 6, 7, 17, 18, 19, 36, 37, 38, 48, 65, 74 and 75.

Sens. Hale and Taylor on December 12, 1986, filed a motion in part seeking payment of their legal expenses. By order of January 14, 1987, that motion has been carried with the case. The motion is now denied.

Lt. Gov. Dye’s motion in the nature of a motion to stay or, in the alternative, petition for writ of supersedeas is denied as moot.

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

WALKER, C.J., ROY NOBLE LEE, P.J. and DAN M. LEE, PRATHER, ANDERSON and GRIFFIN, JJ., concur.

SULLIVAN, J., concurs in part and dissents in part by separate written opinion, joined by HAWKINS, P.J.

HAWKINS, P.J., dissents by separate written opinion, joined by SULLIVAN, J.

. Senator Hale represents senatorial district 51, which lies within Jackson County, Mississippi.

. Senator Taylor represents senatorial district 46 which is made up of parts of Hancock, Harrison and Jackson Counties.

. The Rules of the Senate of the State of Mississippi which are challenged here are in their full text as follows:

5. The President of the Senate shall have full and exclusive authority over the Secretary, officials and employees of the Senate. He may make such rules and regulations for the government of such officials and employees as he may think fit and proper. In case of violation of any orders of the President of the Senate by an employee, or officer, or in case of any misconduct, inefficiency or omission of any such employee, or officer, the President shall have the authority to hear such complaints and to discharge any employee or officer. In case of violation of any orders of the President of the Senate by the Secretary or the Sergeant-at-Arms, or in case of any misconduct, inefficiency, or omission by the Secretary or Sergeant-at-Arms, the President shall refer such complaint to the Committee on Rules which shall have the authority to hear such complaints and discharge the Secretary or the Sergeant-at-Arms.

6. The President shall assign the news, radio and television reporters, wishing to take down or broadcast the debates and proceedings of the Senate, places in the Senate so as not to interfere with the convenience of the Senate. But any representative of any newspaper, radio or television station, who shall purposely misrepresent or misreport any of the proceedings of the Senate may during the remainder of the Session, be denied admission to such privileges, if by majority vote of Senators present and voting, the Senate so orders.

7. The President shall nominate standing committees as provided in Rule 36. He shall also appoint all select and conference committees as ordered by the Senate from time to time.

17.The Secretary, with the approval of the President, shall provide for the appointment of pages, whose salaries shall be fixed by the Committee on Contingent Expense. Not more than six pages shall serve throughout the session as senior pages, and one of these six shall be designated as head page by the Secretary. Nominations of pages by members of the Senate shall be submitted to the Secretary as soon as possible so that they may be properly scheduled.

The said pages shall be not less than twelve years of age.

18. The Secretary, with the approval of the President, shall appoint sufficient personnel to carry on properly and efficiently the business of the Senate. Salaries thereof shall be fixed by the Committee on Contingent Expense.

19. There shall be an Assistant Secretary, and an additional Assistant Secretary when needed, appointed by the President for a term of four years, unless removed as provided in Rule 5. The duties of the Assistant Secretary shall be comparable to those of the Secretary.

36. The following standing committees, except the Committee on Rules, shall be appointed by the President, who shall also fill vacancies occurring thereon:

Agriculture .13 members

Appropriations.21 members

Business and Financial Institutions . 13 members

Conservation.15 members

Constitution.9 members

Contingent Expense.5 members

(The Chairman of the Senate Contingent Expense Committee shall be the Lieutenant Governor, the Vice Chairman shall be the President Pro Tempore, three members shall be appointed by the Lieutenant Governor).

Corrections.11 members

County Affairs.9 members

Education.15 members

Elections.9 members

Fees, Salaries & Admin.13 members

Finance.21 members

Forestry.9 members

Highways & Transportation .... 19 members

Insurance.13 members

Interstate & Federal Cooperation ... 5 members

Judiciary.21 members

Labor.9 members

Local and Private .5 members

Military Affairs.7 members

Municipalities . '..11 members

Oil, Gas & Other Minerals.11 members

Ports and Industries.9 members

Public Health & Welfare .19 members

Public Property .7 members

Public Utilities.11 members

Rules

(The Committee on Rules shall consist of the Lieutenant'Governor, the President Pro Tempore of the Senate, and five Senators, one from each Congressional District of the State, having served in the Senate at least four years, to be selected by the Senators from their respective congressional districts by caucus).

Universities and Colleges.13 members

JOINT COMMITTEES

Executive Contingent Fund .(5 Senators

5 Representatives)

Investigate State Offices.(9 Senators

9 Representatives)

State Library.(5 Senators

5 Representatives)

Enrolled Bills.(5 Senators

5 Representatives)

37. Standing, select and conference committees shall be appointed by the President.

38. The first member named on a committee shall be its Chairman and the second member named shall be its Vice-Chairman, unless it is specifically provided that they shall be elected. There shall be no further rank on the committees, the remaining members being listed thereon in alphabetical order. In the event of a vacancy in the chairmanship or vice chairmanship, or membership, the vacancies shall be filled by appointment by the President.

48. A conference committee on the part of the Senate shall consist of three Senators, unless otherwise ordered by a majority vote of the Senate, and they shall be appointed by the President.

65. The Committee on Rules shall consist of the Lieutenant Governor, the President Pro Tempore, and five Senators each having served at least four years in the Senate, one from each congressional district of the State, to be selected by the Senators from their respective congressional districts by caucus. The resident county of the Senator representing such district shall determine the congressional district caucus in which he shall participate and for which he may hold membership on the Rules Committee.

74. Senators who desire to introduce bills and concurrent resolutions and Senate resolutions, may place same in the box at the Secretary's desk at any time, or they may send them to the Secretary's desk by pages when the order for introduction is reached.

In addition to any other time provided by law or by rule, members of the Senate may file bills or resolutions with the Secretary of the Senate at any time during the period between sessions of the Legislature. Such prefiled bills shall be numbered by the Secretary of the Senate and referred by the Lieutenant Governor to the appropriate standing committee of the Senate for study. Such prefiled bills shall be introduced in the order filed on the first day of the next succeeding regular session of the Legislature, or special session if included within the Governor’s call, and referred to committee in the regular order of business of the Senate.

No bills may be prefiled in any year of a general election until after a member of the Senate has been finally elected in the November general election.

75. Upon introduction of Senate bills, the Secretary shall read the titles thereof and then give the bills to the President for his study and reference to proper committees. The President may retain such bills in his possession until the opening of the next succeeding legislative day’s session when he shall return such bills to the Secretary with the committee references noted thereon. Whereupon, the Secretary shall give such bills serial numbers, and, at the proper time in the Order of Business, the Secretary shall read the numbers, titles and committee references, and have said titles reproduced for distribution. House bills received with messages from the House shall be treated likewise regarding references to committees and reading of titles by the Secretary. Provided, however, that the President may, at his option, refer Senate bills immediately upon their introduction and House bills immediately upon their receipt from the House. Provided, further, that a motion is in order for the immediate consideration in Committee of the Whole of any bill or resolution, except bills of Local and Private nature, before such bill or resolution is referred to a standing committee.

. Lt. Gov. Dye’s nostalgia for the ancient writ of quo warranto to the contrary notwithstanding, we live in a new age. The forms of action are dead, nor do they rule us from their graves, as Rule 2, Miss.R.Civ.P., declares boldly that

There shall be one form of action to be known as "civil action.”

Hall v. Corbin, 478 So.2d 253, 256 (Miss.1985). From the Official Comment, we learn that Rule 2 "may be the most fundamental rule of all,” one of its consequences being that "forms of action are abolished.” The quo warranto writ under Miss.Code Ann. § 11-39-1, et seq., being a form of action, was thus interred effective January 1, 1982. See also Rule 81(c), Miss.R. Civ.P. Although there is really no doubt of the matter, we find this in Appendix B to the Mississippi Rules of Civil Procedure, to-wit:

The form of relief formerly obtainable under a writ of quo warranto, or writ in the nature of quo warranto, shall hereafter be obtained by motions or actions specifically seeking relief; to the extent that Title 11, Chapter 39 of the Mississippi Code of 1972 prescribes rules of practice and procedure pertaining to quo warranto, such statutory rules tire supplanted by the applicable provision of the M.R.C.P.

. The legislation challenged in Alexander was approved by the Governor, or, at least, was not vetoed, for otherwise it could never have become law.

. This account is based on the Journal of the Proceedings of the Constitutional Convention of the State of Mississippi (1890) (“Journal of Proceedings”) and detailed daily reports of debates published in the Daily Clarion-Ledger. At its conclusion the Convention commended the newspapers for their coverage. See Journal of Proceedings 580. This Court considers these debates pursuant to Rules 201 and 803(16), Miss.R.Ev. Judge Calhoon’s proposal is at Journal of Proceedings 33.

.Journal of Proceedings 153; Miss. Const. Art. 5, § 16 (1869).

. Daily Clarion-Ledger, Sept. 27, 1890, at 1, col. 4.

. Id.

. Journal of Proceedings 290.

. Daily Clarion-Ledger, Sept. 27, 1890, at 1, col. 4.

. Daily Clarion-Ledger, Oct. 22, 1890, at 1, col. 2.

. That the office of Lieutenant Governor provided no automatic stepping stone for higher office is illustrated by the races of the six immediate predecessors to Dye who ran for Governor. Of these six, only two were successful in gubernatorial races. And, of the two successful candidates, only one was elected Governor immediately following his term as Lieutenant Governor. Indeed, had the most recently elected of the two lacked a tenacious spirit, he likely would have encountered little success. See Mississippi Official & Statistical Register pp. 105-06 (1984-88).

. See The Clarion-Ledger Jackson Daily News, Dec. 16, 1979, at 1F; The Clarion-Ledger, Jan. 4, 1980, at 3A; The Clarion-Ledger, Jan. 9, 1980, at 3A; The Clarion-Ledger Jackson Daily News, Jan. 20, 1980 at 1I; The Clarion-Ledger, Sept. 10, 1983 at 6A; The Clarion-Ledger Jackson Daily News, April 15, 1984, at 1F.

. See The Clarion-Ledger, Jan. 4, 1980, at 3A; The Clarion-Ledger, Jan. 20, 1980, at 1I; The Clarion-Ledger, Jan. 22, 1980 at 2B; The Clarion-Ledger, Feb. 8, 1985 at 1B; Jackson Daily News, April 16, 1985, at 3C; The Clarion-Ledger, Jan. 6, 1987, at 1B.

. See Jackson Daily News, Feb. 25, 1986, at 1C; The Clarion-Ledger, Feb. 25, 1986, at 1A; Jackson Daily News, June 26, 1986, at 1A; The Clarion Ledger, June 26, 1986, at 1A; The Clarion Ledger, July 9, 1986, at 1B; Jackson Daily News, Dec. 18, 1986, at 1B; The Clarion Ledger, Dec. 19, 1986, at 20A; Jackson Daily News, Dec. 22, 1986, at 16A.

. At the 1890 convention the "distribution of powers” sections were lumped together with "boundaries” and assigned to the Legislative Committee on October 4, 1890. Journal of Proceedings 334. The committee reported on Oct. 8, 1890. The distribution of powers sections were approved on October 20, 1890, without amendment or debate. Journal of Proceedings 365, 444; Daily Clarion-Ledger, October 20, 1890, at 1, col. 2.

As approved on the convention floor, the prohibition in Section 2, like its 1869 predecessor, ended with an additional phrase "except in the instances in this Constitution expressly directed or permitted.” Journal of Proceedings 442. Section 2 was sent to the Committee on Revision, which omitted this phrase in its final draft. Journal of Proceedings 581. The rules governing the Committee on Revision prohibited changes in the "intent or meaning of any matter.” Journal of Proceedings 351-52. Logically, the re-visors may have omitted this phrase because it is well understood that specific language, such as Section 129, controls over general language such as Section 2, and the phrase "properly belonging" sanctions exercises of power "otherwise directed or permitted” by the Constitution.

. At the risk of confusing the familiar with the necessary, we note that the duties granted to the Mississippi Lieutenant Governor are far from unique. According to Gona, The Lieutenant Governor: The Office and Its Powers 14 (Council of State Governments 1983):

Twenty-eight lieutenant governors are presiding officers of the senate, with varying degrees of responsibility for activities within that chamber — activities such as appointing standing or special committees, breaking ties on roll call and organizational votes, assigning bills, and taking care of other administrative or housekeeping functions.... (footnotes omitted)

The generally accepted reasons for the Lieutenant Governor’s legislative role include the need to have a permanent and impartial presiding officer over the Senate. As stated in Isom, The Office of Lieutenant-Governor in the States, 32 Am.Pol.Sci.Rev. 921, 922 (1938):

There are three main reasons why the office is found in so many of the states: first, the people want elective officials; second, the office provides for a permanent and impartial presiding officer for the senate without robbing any district of its senator; and third, precedent has favored the office, since from the very beginning it has existed in most of the larger and more influential states, (footnotes omitted)

See also Morris, Virginia’s Lieutenant Governors: The Office & the Person, 30 (University of Virginia 1970).

. While courts in other jurisdictions have discussed the powers of a lieutenant governor, see, e.g., Rouse v. Johnson, 234 Ky. 473, 28 S.W.2d 745 (1930), Annot. 70 A.L.R. 1095, none has addressed the precise question present here. Plaintiffs here rely upon a case in which the Missouri Senate was held to have lawfully taken certain powers away from its lieutenant governor. In State of Missouri Ex. Rel. Danforth v. Cason, 507 S.W.2d 405, 417-19 (Mo.1974), the court held that a Missouri constitutional provision making the lieutenant governor "ex officio President of the Senate" did not bar the Senate from adopting rules which gave the power to refer bills to the President Pro Tempore instead of the lieutenant governor. The Missouri court relied on the Missouri Senate’s authority under its constitution to adopt its own rules. Here the situation is precisely the reverse of that found in Cason.

. To be sure, the office of Lieutenant Governor is created and defined in a series of constitutional sections found in Article 5 of the Constitution. Article 5 is labeled "Executive," and this we are told places the Lieutenant Governor exclusively within the Executive Department of government. We think the import of the constitution’s article labels more modest. They are a mere facility of convenience, adding or detracting nothing from the content of the substantive language of the various sections of the constitution. Indeed, the article labels carry no more significance than do the section numbers.

For example, the offices of Attorney General (Art. 6, § 173) and District Attorney (Art. 6, § 174) are found in the article labeled “Judiciary," yet these offices are commonly thought of as belonging to the Executive Department of government. Moreover, qualifications for membership on a county board of supervisors are provided in the "Judiciary” article (Art. 6, § 176), but this does not exclude supervisors from the exercise of legislative, executive or administrative functions. Beyond this we find liberally sprinkled through Article 4, labeled “Legislative Department” duties and powers respecting executive and judicial officers.

.The office of Governor is also vested with powers arguably legislative in a generic sense. He may call the legislature into extraordinary session (Art. 5, § 121), recommend legislation (Art. 5, § 122), approve legislation (Art. 4, §§ 72, 73) or veto the same (Art. 4, §§ 72, 73). No one suggests that the Governor violates separation of powers when he approves a piece of legislation even though his approval of it is as integral a part of the law-making process as is approval by the House and Senate.

. In our pursuit of a rational reading of the language of the constitution today, Section 129's placement of one of the Lieutenant Governor’s feet in the Senate may be seen as a check on legislative power. We consider this notion in the context of Alexander's teaching that

there is another side to the coin labeled on one side "separation of powers.” This other side, commonly referred to as "checks and balances," is the mandate that important checks be placed upon each department's [officers] exercise of ... [the] powers [committed to that department].

Alexander, 441 So.2d at 1346.

The authority granted the Lieutenant Governor in the Senate may be seen as an executive check upon legislative power not altogether unlike the veto power enjoyed by the governor. Indeed, there is evidence that proponents of the office of Lieutenant Governor in the 1890 convention considered it desirable that committees in the Senate be appointed and answerable to the people as a whole. This was seen as an advantage in that an ordinary senator exercising those powers (which, to be sure, someone would have to exercise) would inevitably be subject to the "local influences" of his or her personal constituents. See page 341, supra; Daily Clarion-Ledger, October 22, 1890, at 1, col. 2.

The point for the moment, of course, is that, if the Senate wishes to exercise its authority under Section 55 to give the lieutenant governor a check power greater than that given him by the constitution, that is the Senate’s business.