suggesting identical language in Missouri constitution should apply "in any case in which it is suggested that the governor is under disability"
How later courts described this case
- suggesting identical language in Missouri constitution should apply "in any case in which it is suggested that the governor is under disability"
Written by the judges who cited it.
The opinion
BLACKMAR, Judge,
concurring in result.
The circuit court recognized that this case involves only limited issues by the *855 following statement in the dispositive document:
The sole question necessary to resolve this matter is whether John D. Ashcroft had the authority as Governor to sign, or have signed by facsimile signature, the 17 documents here in question while he was physically in Washington, D.C. ...
Having answered that question, the circuit court should have expressed no legal conclusions on unrelated issues, even though the parties may have, expressly or implicitly, invited it to do so. To expound further, by answering hypothetical questions, is to disregard the teachings of decades. The ultimate discretion in declaratory judgment actions is ours. See Nicolai v. City of St. Louis, 762 S.W.2d 423 (Mo. banc 1988). This is especially so in the present case, in which the initial filing was in this Court. Dicta, furthermore, are not controlling in future cases. State ex rel. Anderson v. Hostetter, 346 Mo. 249 , 140 S.W.2d 21, 22 (banc 1940); State ex rel. Wolfskill v. Shain, 178 S.W.2d 446 , 447 (Mo.1944).
There is another reason why the Court should not venture into uncharted waters involving hypothetical situations. In 1968 the Missouri Constitution was amended to provide a “disability board” with authority to determine when the governor is “unable to discharge the powers and duties of his office.” Mo. Const.1945, Art. IV, § 11(b). None of the parties discussed the effect of this section in the briefs. The Attorney General, in response to a question during oral argument, suggested that the section was intended to apply only to physical or mental disability, but further reflection might produce a difference in thinking on the point. It seems to me that the section should be considered in any case in which it is suggested that the governor is under disability. We should withhold unnecessary speculation until we have an appropriate case.
The principal opinion also declaims unnecessarily on the effect of historical evidence of the relationship between various governors and lieutenant governors. I would agree that plain constitutional language cannot be abrogated or modified by practice, but prevailing practice is a recognized aid to construction when constitutional language is reenacted without substantial modification. See Rathjen v. Reorganized School District R-II of Shelby County, 365 Mo. 518 , 284 S.W.2d 516 (Mo. banc 1955); Moore v. Brown, 350 Mo. 256 , 165 S.W.2d 657 (Mo. banc 1942). I see no need to particularize because the case at hand does not require particularization. I am concerned lest some of the general language of the principal opinion cause future confusion.
Inasmuch as I agree with the trial court’s resolution of the “sole question,” I concur in making the alternative writ peremptory and in affirming the judgment.