Anderson v. Bowen.

• Decision Date: 01 June 1916
• Court: West Virginia Supreme Court
• Parties: Reuben Anderson v. Anthony Bowen et al.

78 W.Va. 559

Reuben Anderson

v.Anthony Bowen et al.

Supreme Court of Appeals of West Virginia.

Submitted May 26, 1916.

Decided June 1, 1916.

1. Statutes Enactment Presumptions.

A bill duly enrolled, authenticated and approved is presumed to have been passed by the legislature in conformity with the requirements of the constitution, unless the contrary is made to appear affirmatively; and the proof of omissions of constitutional requirements, furnished by the journals of the two houses, in matters of procedure, must be clear and conclusive, to overcome such presumption. (p. 560).

2. Same.

Though the journal of one of the houses does not in terms show a bill was read a second time and does show members protested that it had not been, the fact may be inferred from a declaration of the presiding officer that it had been, amendments made, advancement to third reading and recital of a third reading, all affirmatively disclosed by the journal. (p. 562).

3. Same City Charter Effect of Partial Invalidity.

Separable provisions in a city charter, even though unconstitutional, do not invalidate such provisions thereof as are not in conflict with the constitution. (p. 562).

4. Same.

If provisions of a charter are inhibited by the constitution because they regulate the exercise of the elective franchise to an unreasonable extent, or require unconstitutional qualifications on the part of voters, and the general election laws are made applicable to municipal corporations by the terms thereof, such provisions are separable and do not invalidate the charter in its entirety. (p. 563).

5. Constitutional Law Determination of Constitutional Questions.

On a bill to enjoin enforcement of a city charter on account of such provisions, it is not necessary to determine whether they are valid or not. (p. 563).

6. Same Distribution of Governmental Powers Duties of Election Officers.

It is competent for the legislature to make all duties of officers and tribunals, respecting elections and election contests, legislative, administrative or ministerial, and deprive them of all judicial character. (p. 564).

(Mason, Judge, absent).

Appeal from Circuit Court, Marion County.

Bill in equity by Reuben Anderson against Anthony Bowen, Mayor of the City of Fairmont, and others. From a decree for plaintiff, defendants A. S. Fleming and others appeal.

Reversed, injunction dissolved, and bill dismissed.

Harry Shaw, W. S. Meredith, and John W. Mason, Jr., for appellants.

M. M. Neely, Scott C. Lowe and W. E. R. Byrne, for appellee.

Poffenbarger, Judge:

This is a second appeal in the cause reported in 87 S. E. 186. After it went back to the circuit court, a decree similar to the one disposed of on the former appeal, enjoining enforcement of the new charter of the City of Fairmont, on the ground of unconstitutionality, was entered.

One of the principal grounds of attack made upon the charter is alleged non-compliance with the constitutional provision declaring no bill shall become a law, unless fully and distinctly read on three separate days, in each house of the legislature, if such requirement is not dispensed with in a prescribed manner. For the purposes of this bill, the constitutional rule was not suspended. The bill passed the House regularly. The senate journal affirmatively and specifically shows a first and third reading. It does not, in terms say there was a second reading. An entry says the clerk reported it. Another shows a senator declared from the floor, that it had not been read a second time. Still another says the president declared "That the announcement had been made that the bill had been read a second time." There is a recital that the bill was taken up out of its order for immediate consideration, on second reading. Upon the chair's inquiry for amendments and notice of intention to order it to its third reading, if there were none, a member moved that the bill be read a second time, section by section. Another moved an indefinite postponement, for lack of statutory notice. On this, there was a roll call resulting in defeat of the motion. Then the motion to read the bill a second time section by section was renewed. This seems to have been ignored. Then an amendment was adopted by a recorded vote. Pending a motion to order the bill to its third reading, a senator rose to a point of order, viz., that Rule 42 provides that on the demand of any two members, a bill shall be read section by section, for amendment, and said rule had not been complied with. An adverse ruling on the point of order was sustained, on an appeal. An amendment was then adopted by unanimous consent. Before the vote was taken on the motion to order the bill to its third reading, a senator, in explanation of his negative vote, declared the bill had not been read a second time. The motion failed, and several additional amendements were made, before it was formally ordered to its third reading.

My personal opinion is not in accord with the authorities on the interpretation of the constitutional provision involved. That it is mandatory there can be no doubt, and I think it is equally clear that the journal should affirmatively show compliance with it, not by mere inference or presumption, but by clear and unequivocal language. A legislative journal evidencing the enactment of a law regulating a community or a state, giving or denying rights to a whole populace, not in single instances, but for long periods of time, ought to be as clear and certain as the entry of a judgment in a court of law, disposing of a single controversy between two citizens. No court will entertain the idea of a judgment expressed otherwise than by clear, positive, unequivocal language. There can be no such thing as a judgment by mere intendment or inference. No judgment can stand upon a mere presumption that the court rendered it. To say a law that may become the foundation of innumerable rights may do so is to my mind a most flagrant and striking inconsistency and departure from sound principle.

It has nevertheless been countenanced and adopted by this court. The rule sanctioned by the decision in Price et al. v. Moundsville, 43 W. Va. 526, is stated as follows: "A bill duly enrolled, authenticated and approved is...