Button v. State Corp. Comm'n Of Va.

• Decision Date: 17 August 1906
• Parties: BUTTON. v. STATE CORPORATION COMMISSION OF VIRGINIA.
• Court: Virginia Supreme Court

54 S.E. 769

105 Va. 634

BUTTON.

v.STATE CORPORATION COMMISSION OF VIRGINIA.

Supreme Court of Appeals of Virginia.

Aug. 17, 1906.

Insurance — Election of Commissioner— Construction of Constitution.

Act March 9, 1906 (Laws 1906, p. 122, c. 112), establishing a bureau of insurance, in providing that the commissioner of insurance shall be elected by the General Assembly, does not contravene Const. art. 12, § 155, providing that the State Corporation Commission shall annually elect one of its members chairman of the same, and shall have one clerk, one bailiff and such other clerks, officers, assistants, and subordinates as may be provided by law, all of whom shall be appointed by the Commission; and that the General Assembly may establish within the department, and subject to the supervision and control of the Commission, subordinate divisions, or bureaus of insurance, banking, or other special branches of the business of that department; the power of appointing the insurance commissioner not being given by the Constitution to such Commission, but his election being intrusted to the General Assembly by the provisions authorizing it to establish the bureau of insurance.

Petition of Joseph Button for mandamus to the State Corporation Commission of Virginia. Writ awarded.

WHITTLE, J. At a special term of this court, convened at the instance of the Governor of the commonwealth in the city of Richmond July 31, 1906, a peremptory writ of mandamus was awarded, commanding the State Corporation Commission to allow Joseph Button, who had been chosen commissioner of insurance for the state of Virginia by the General Assembly, and commissioned as such by the Governor, to qualify before them by taking the oaths of office and executing bond as required by law.

The commission had declined to permit the petitioner to qualify, entertaining the opinion that the provision in the act of March 9, 1906, for the election of the commissioner of insurance by the General Assembly was in conflict with section 155 of the state Constitution, and void. The sole question, therefore, for our determination was the constitutionality of that act.

The provisions of article 12, § 155, of the Constitution, involved in this controversy, are as follows:

"The commission shall annually elect one of their members chairman of the same, and shall have one clerk, one bailiff and such other clerks, officers, assistants and subordinates as may be provided by law, all of whom shall be appointed, and subject to removal, by the commission. It shall prescribe its own rules of order and procedure, except so far as the same are specified in this Constitution or any amendment thereof. The General Assembly may establish within the department, and subject to the supervision and control of the Commission, subordinate divisions, or bureaus of insurance, banking or other special branches of the business of that department."

The Commission denied the constitutionality of the statute in the particular mentioned, maintaining that section 155 of the Constitution devolved the duty upon them of appointing the Insurance Commissioner.

Though the question before us lies in narrow compass, it is of more than ordinary importance, and in approaching the consideration of it there are certain fundamental principles which must not be lost sight of. Thus, in a government such as ours of reserved powers, the legislative department acknowledges no superiors except the federal and state Constitutions, and its authority to enact laws unless forbidden by one or the other of those instruments in express terms or by necessary implication, is paramount. Smith v. Commonwealth, 75 Va. 904; Virginia-Tennessee C. & I. Co. v. McClelland, 98 Va. 424. 36 S. E. 479. Moreover, there is an obvious distinction between the construction of grants of power by the federal Constitution to Congress and grants of power by the state Constitution to the General Assembly. In the first case the grant is the sole source of congressional power, and is, therefore, to be construed strictly, while in the latter the grant, being merely declaratory of pre-existent power, is to be construed liberally. In the one instance the expositor must search for constitutional sanction authorizing the enactment; in the other, the quest must be for constitutional limitation forbidding it. The Constitution is in no sense a grant of power to the Legislature, but it is a limitation to its general powers.

So It has been said: "In the partition of power between the three departments of government, the power of making laws is conferred on the General Assembly. Some laws they are compelled by mandate to make. Other laws they are forbidden to make. These are the only limits to their powers. All subjects of legislation not affected by mandate, nor by prohibition, are within the discretion of the General Assembly." Commonwealth v. Drewry, 15 Grat. 1, 5.

It has also been held, that "the Constitution of the United States is a source and grant of power to the Congress of the United States. It is an enabling and not a restraining instrument. Congress can do nothing except what the Constitution, either directly or by reasonable construction, authorizes it to do. The Constitution of Virginia, however, is a restraining instrument, and the Legislature of the state possesses all legislative power not prohibited by the Constitution." Brown v. Epps, 91 Va. 726, 21 S. E. 119, 27 L. R. A. 676.

These propositions are axiomatic, and lie at the very foundation of our institutions.

As corollary to the foregoing postulates arises the rule of construction, that in a doubtful case it is the province of the courtsto resolve all doubts in favor of the constitutionality of the act of the Legislature.

"Plenary power in the Legislature for all purposes of civil government is the rule. A prohibition to exercise a particular power is an exception. In enquiring, therefore, whether a given statute is constitutional, it is for those who question its validity to show that it is forbidden." Cooley's Const. Lim. p. 105.

The decisions of this court abound with illustrations of the rule.

It is said: "We can declare an act of General Assembly void only when such act clearly and plainly violates the Constitution, and in such manner as to leave no doubt or hesitation on our minds." Commonwealth v. Moore & Goodsons, 25 Grat. 951, 953.

Again: "Upon the most familar principles, repeatedly declared by the decisions of the Supreme Court of the United States, and of the Supreme Courts of all the states, and by none more emphatically than by this court, every statute is presumed to be constitutional. It cannot be declared by the courts to be otherwise unless it be made clearly so to appear. The Legislature is omnipotent in making laws, unless restrained by the express or implied provisions of the state or national Constitution." Virginia-Tennessee Coal & Iron Co. v. McClelland, 98 Va. 424, 36 S. E. 479.

It is also a familiar doctrine, that legislative construction of the Constitution is under certain circumstances of great importance In constitutional exegesis. 6 Am. & Eng. Ency. of Law, 932, and cases cited in note 9.

The following decisions exemplify the general rule:

"That this is...