Capito v. Sutherland

• Decision Date: 27 April 1909
• Citation: 65 W.Va. 587
• Parties: Capito v. Topping. Sutherland v. Topping. Beese v. Topping.
• Court: West Virginia Supreme Court

65 W.Va. 587

Capito

v.Topping. Sutherland

v.Topping. Beese v.Topping.

Supreme Court of Appeals of West Virginia.

Submitted March 12, 1909.

Decided April 27, 1909.

1. Mandamus Purposes of Relief Legislative Officers.

Mandamus is an appropriate remedy to compel the keeper of the legislative rolls to deliver, to a citizen, requiring it, a copy of an act passed by the legislature, and also to compel him to promulgate the same with the other acts passed, by printing and binding it with them for distribution and sale. (p. 589.)

2. Same Public Officer Defense.

Mere lack of possession, by a public officer, of a document, of which he is the legal custodian, constitutes no defense to an application for a peremptory writ of mandamus, to compel him to certify and deliver a copy thereof, when the law requires it of him. (p. 590.)

3. Constitutional Law Who May Raise Question.

Unconstitutionality of a legislative act cannot be set up by the keeper of the rolls, as a defense to a writ of mandamus, to compel him to furnish a copy thereof; this defense being avail able only for protection of personal interests or rights invaded or encroached upon by unconstitutional legislation. (p. 590.)

4. Same: Construction of Constitution Mandatory.

Being organic in character, constitutional provisions stand on a higher plane than statutes, and, as a rule, are mandatory, prescribing exact or exclusive times and methods of doing acts permitted or required. (p. 591.)

5. Statutes Veto by Governor.

The provision in section 14 of Article VIII of the Constitution of this State, requiring the Governor to file a bill, with the objections thereto, in the office of the Secretary of State, within five days after the adjournment of the legislature, in order to effect a veto thereof, is mandatory, in respect to both the time and the manner of exercising the power. (p. 591.)

6. Same Veto Time for Exclusion of Sunday.

In computing the period of five days after adjournment, allowed for the exercise of the power of executive disapproval, a Sunday, occurring within five days after adjournment, is to be excluded, (p. 592.)

7. Evidence Parol Evidence.

When the records of the legislature show the time of adjournment and are clear and unambiguous, respecting the same, they are conclusive; and extraneous evidence cannot be admitted to show a different date of adjournment, (p. 593.)

8. States Legislative Records Certainty.

The date of adjournment of the legislature, as shown by its journals, is not contradicted or rendered uncertain, by record evidence therein of the transaction of a large amount of business within a short period of time. (p. 594.)

9. Statutes. R ea ding Amendments.

Amendments to legislative bills, read on three separate days, as required by the constitution, made at a late stage of the proceedings, such as the third reading, do not make it necessary to repeat the constitutional readings thereof, (p. 595.)

Separate original applications for peremptory writs of mandamus by Charles Capito, Howard Sutherland, and ZM. Reese to be directed to C. L. Topping, Clerk of the House of Delegates.

Writs Awarded.

Price, Smith, Spilman & Clay and Kemble White, for petitioners.

Wm. Gr. Conley, Attorney General, Wm. M. 0. Dawson, and Linn & Byrne, for respondent,

poffenbarger, judge:

Chas. Capito applied to this Court for a peremptory writ of mandamus, to compel C. L. Topping, Clerk of the House of Delegates, to certify and deliver to him a copy of a certain document, known and designated in the legislative proceedings, as Senate Bill No. 162, a bill to amend and re-enact a certain statute, constituting the charter of the city of Charleston, as an act passed by the legislature. Howard Sutherland applied for two such writs, commanding said Topping to certify two other documents, relating to roads, as having become laws. Z. M. Beese also asked such a writ, commanding him to certify still another one, purporting to establish Grant Independent School District in Marion county, as a law passed. Another purpose of the applicants was to have these acts printed and bound with the other acts passed. Topping resisted all these applications, basing his defense on an alleged veto by the Governor in each case and unconstitutionality of some of the acts.

The facts, disclosed, are as follows: The Legislative journals, as written up by the clerks, but not yet signed by the presiding officers, show the legislature adjourned on the 26th day of February, 1909, but do not disclose the hour of adjournment. As shown by affidavits, tendered, that body, in point of fact, adjourned on February 27, 1909, at 6:40 o'clock, A. M. Within five days after February 26th, the Governor endorsed "Disapproved" on some of the bills, but did not return any of them to the office of the Secretary of State within that period, but did return them within five days after February 27th, excluding Sunday, to-wit, on the 5th day of March, 1909, at 8:00 o'clock, A. M., that being more than five days after midnight of February 26th, excluding Sunday, February 28th. The legislative journals show a recess for ten minutes at 11:30 o'clock, P. M., on February 26th and the transaction of a large amount of business after that time.

Assuming the validity of the acts in question, the right of the applicants to have copies thereof and the propriety of the remedy invoked are clear beyond doubt. As citizens and tax-payers, they have a sufficient interest, and the statute makes the Clerk of the House the Keeper of the Rolls, and requires him to make and deliver a copy of any act to any person, requiring the same, on payment of the fee allowed therefor. Code, chaffer 12, sections 13 & 14. That mandamus is the proper remedy to enforce performance of this duty is obvious, in view of legal principles, and has-been judicially declared. Wise v. Bigger, Clerk, 79 Va. 2G9; Wolfe v. McCaull, 76 Va. 876.

Unconstitutionality of the acts in question, treating them as having had bestowed upon them all the vital and essential requisites of passage, in due form by both houses of the legislature, and not having been vetoed, may be eliminated as a defense, the respondent cannot make in his ministerial and representative capacity, if it exists. That defense is open only to persons having a personal interest or right, which the unconstitutional act invades or violates. Dillon v. County Court of Braxton County, 60 V. Va. 339, (52 U. S. Law Ed. 450, 208 U. S. 192.)

Another objection, preliminary in character, is that the document is not in the custody of the respondent. If it became a legislative act, it should be in his possession, and, if it is not, he fails to show any excuse for not having it. His return stops with the mere statement that the Secretary of State, not he, has it. It fails to go further and show his inability to get it. It is not even suggested that he cannot obtain it, or that he has made any efforts to do so. As the legal custodian of such records, he is bound to exercise some degree of diligence in respect to them. An impossibility would not be required of him, of course, and, if it appeared here that time were necessary to enable him, by legal proceedings or otherwise, to obtain the possession of it, that might constitute a defense. Whether it would or not, we are not called upon to say, for it is not even suggested in the return. Insufficiency of this part of the return is obvious.

The constitutional provision involved and conferring and limiting the gubernatorial power of veto, reads as follows: "Any bill which shall not be returned by the Governor within five days (Sundays excepted) after it shall have been presented to him, shall be a law, in like manner as if he had signed it, unless the Legislature shall, by their adjournment prevent its return, in which case it shall be filed with his objections, in the office of the Secretary of State, within five days after such adjournment, or become a law." Cons. Art. VII., sec. 14.

In view of the terms, as well as the nature of this clause, it must be held to be mandatory, not merely directory. Constitutional provisions are organic. They are adopted with the highest degree of solemnity. They are intended to remain unalterable except by the great body of the people, and are incapable of alteration without great trouble and expense. They are the frame work of the state as a civil institution, giving cast and color to all its legislation, jurisprudence, institutions and social and commercial life, by confining the legislature, the executive and judiciary within prescribed limits. All the great potential, dominating, creative, destroying and guiding forces of the state are brought within their control so far as they apply. Thus, to the extent of their duration, they define and limit the policy of the state more rigidly and unalterably than the sails and rudder of the ship, when set, govern and control its course. A more apt figure is made up of the great system of highways, including railroads, fixing the mode, courses and extent of travel and transportation. So they necessarily stand on a much higher plane than mere statutes, and the courts, as a rule, do not feel warranted in upholding deviations from them in respect to the manner and time of the performance of acts, prescribed or required by them. Wolfe v. McCaull, 76 Ya. 876; Cooley Const. Iim. (7th Ed.) 114, 219; Lewis7 Suth. Stat. Con., sec. 164, p. 109. Tested by its terms, the clause under consideration may be said to be in mandatory form, though form is not ahvays conclusive. The passage of the act makes it law, subject to a contingency, the executive veto. If the Governor desires to veto a hill, after the adjournment of the legislature, it must be filed, with his objection, "in the office of the Secretary of State within five days after such adjournment, or become a law." It is alternative and emphatic, saying if a certain thing is not done, another shall happen. Unlike many other provisions, it does...