City Of Roanoke v. Elliott

• Decision Date: 19 September 1918
• Parties: CITY OF ROANOKE. v. ELLIOTT et al. MANIHAN et al. v. SAME.
• Court: Virginia Supreme Court

96 S.E. 819

CITY OF ROANOKE.

v.ELLIOTT et al.

MANIHAN et al.

v.SAME.

Supreme Court of Appeals of Virginia.

Sept. 19, 1918.

Error to Circuit Court of City of Roanoke. Petition by M. C. Elliott and others for an election submitting to the voters of the city of Roanoke the question of changing its form of government, on which an election was ordered, and after the election and certificate of the commissioners of election, but before any order of the circuit judge, the city of Roanoke on its petition was made a party defendant to the proceeding, and Elliott and others were made parties defendant to its petition, and, after an order declaring the adoption of the city-manager plan of government, the petition of Morris Manihan and others to be made parties defendant to the petition of Elliott and others was denied. From the order declaring the adoption of the new plan of government the city of Roanoke brings error, and from the denial of their petition to be made parties Manihan and others bring error. Writs of error dismissed.

S. Hamilton Graves and Hall, Wingfield & Apperson, all of Roanoke, for plaintiffs in error. Jackson & Henson and C. A. McHugh, all of Roanoke, for defendants in error.

BURKS, J. Section 117 of the Constitution of this state, as amended, authorizes the General Assembly to provide from time to time for the various cities and towns of the commonwealth such form or forms of municipal government as it may deem best, but that no form or forms shall become operative except as to such cities or towns as may thereafter adopt the same "by" a majority vote of its qualified electors at an election to be held as may be prescribed therefor by law." This amendment became effective in 1912. In 1914 the Legislature enacted a statute to put it into operation (Acts 1914, p. 165). In 1916 this statute was amended (Acts 1916, p. 672), and again in 1918 (Acts 1918, p. 402). The amendment of 1918 was put into immediate effect by an emergency clause, and the election was held May 6, 1918. This amendment is assailed as unconstitutional because the emergency clause merely states the existence of the fact of emergency, and does not state the grounds of the emergency. The constitutional provision upon which this claim is based is contained in section 53 of the Constitution, which forbids putting statutes other than appropriation bills into immediate operation, "unless in case of emergency (which emergency shall be expressed in the body of the bill)." The acts of 1914 and 1916 each provided that a majority of the qualified voters authorized to vote at such election must vote for the proposed change in order to secure its adoption. The act of 1918, however, changed the language of this clause, and followed the language of the Constitution, requiring the election to be carried "by a majority vote of the qualified electors."

On April 4, 1918, M. C. Elliott and others, constituting the requisite number of electors, filed a petition before the judge of the circuit court of the city, praying that an electionbe ordered for the purpose of submitting to the qualified voters of the city the question of changing the form of government of the city as then organized to that known as the "city manager plan, " in accordance with the act of Assembly entitled "An act to provide for a change in the form of government of cities having a population of less than 100, 000, and of towns, and to provide in what manner such cities and towns may adopt such form of government, " approved March 20, 1916, "and of acts amendatory thereof." The petition was accompanied by the certificate of the clerk of the corporation court, as required by the statute, showing that the number of voters qualified to vote at the last election held in the city for municipal officers was 4, 456. The election was duly ordered, and was held on May 6, 1918. The commissioners of election certified to said judge that 1, 470 votes were cast at the election, and that of those 368 were against the proposed change of government, and 1, 102 were in favor of the proposed change of government. Before any order was made by the judge, to wit on May 10, 1918, the city of Roanoke appeared by counsel, and tendered its petition, asking to be made a party defendant to the proceeding whereby the election was ordered and held, that the petitioners upon whose petition the election was ordered and held should be made defendants to the city's petition, and that the court declare that the proposed change in the form of government of the city had not been adopted by the requisite majority. The city was admitted as requested, and on May 11, 1918, the judge entered the following order:

"It appearing that the election held in the city of Roanoke on the 6th day of May. 1918, pursuant to the order and writ made and issued by the judge of this court on the 4th day of April, 1918, whereby it was submitted to the qualified electors of said city whether or not the existing form of municipal government of the said city should be changed to that known as the 'city manager plan, ' as defined and fully set out in chapter 392 of the Ails of 1916 and acts amendatory thereof, 1, 102 votes were cast in favor of said change and 368 votes were cast against said change, and it appearing further therefrom that said eleven hundred and two (1, 102) votes so cast in favor of said change of form of government constitute a majority of the qualified electors of the said city, according to the true intent and meaning of the Constitution of Virginia and of said act as amended by act approved March 14, 1918; and it further appearing that said election was held after the notice provided in said order and writ as required by law, and that said election was conducted both as to the notice and manner of holding the same in accordance with the provisions of the law; and it is therefore so ordered. * * *

"It is further ordered that pursuant to the will of the people of said city, as declared by a majority vote of the qualified electors voting in the manner prescribed by law, the existing form of municipal government of said city be, and the same is hereby, changed to that known and defined as the 'city manager plan.' as set out and prescribed in chapter 392 of the Acts of 1915 [1916], and acts amendatory thereof.

"It is further ordered that the clerk of this court shall forthwith certify a copy of this order to the council of the city of Roanoke for recordation upon its journal, as required by law."

To this order a writ of error was awarded to the city of Roanoke.

Subsequently, to wit, on May 16, 1918, Morris Manihan and 16 others, electors of said city, tendered their petition, also asking to be made parties defendant to the petition of M. C. Elliott and others, upon whose petition the election had been ordered and held, and praying the same relief as was prayed by the city of Roanoke. Elliott and others resisted the filing of this petition on the ground that the cause was ended and the petition could not then be filed, and, further, if intended to contest the election, it could not be entertained, as the notice required by the statute had not been given. The petitioners stated that they did not ask that their petition be treated as a petition to contest the election, and thereupon the court entered an order declining to permit the petition of Manihan and others to be filed. To this order a writ of error was awarded to Manihan and others.

A number of questions of interest and importance have been ably argued before us, but, in the view we take of the cases, it will be unnecessary to pass upon them.

It has been urgently insisted, both in the oral argument and in the briefs, that the emergency clause of the act of 1918 is not a sufficient compliance with the provision of section 53 of the Constitution, postponing the operation of acts, other than appropriation acts, until 90 days after the adjournment of the General Assembly, "unless in case of emergency (which emergency shall be expressed in the body of the bill)." Plaintiffs in error insist that the words "which emergency" are entirely superfluous, if It is sufficient simply to declare the fact of the existence of an emergency, and that, in order to give them any effect, it is necessary that "the facts or conditions constituting the emergency shall be expressed or declared." Such a construction would read into the Constitution words which the convention which framed it did not see fit to use. If such had been its intention, nothing would have been easier than to have said so in language that was plain and unequivocal. The word "emergency" in parentheses was apparently placed there merely to point out with definiteness and more certainty the antecedent to which the word "which" referred. The construction would be the same if the second word "emergency" and the parentheses were omitted altogether, and the sentence read, "unless in case of emergency which shall be expressed in the body of the bill." We do not omit the word "emergency." however, in our interpretation of the clause, but give to it its apparent and natural meaning, in the connection in which it is used, that of emphasis and certainty. It isnecessary to state in the body of the bill that an emergency exists, in order that it may be put into immediate effect, for so the Constitution declares; but counsel very properly admit that "the Legislature is the sole judge of what shall constitute an emergency which will justify putting an act into immediate effect, " as the authorities so hold. See cases cited in 33 Cyc. 1193, 1194. "It is for the Legislature to ascertain and declare the fact of the existence of the emergency, and their determination is not reviewable elsewhere. The Constitution has vested the lawmaking department of the government with the power to determine that question, * * * and such determination is not made reviewable in the courts." Biggs v. McBride, 17 Or. 647, 21 Pac. 880, 5 L. R. A. 118, 119. Whether...