Harrison v. Day

• Decision Date: 16 March 1959
• Docket Number: No. 4931,4931
• Citation: 107 S.E.2d 594,200 Va. 764
• Court: Virginia Supreme Court
• Parties: A. S. HARRISON, JR., ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA. Record

Page 594

107 S.E.2d 594

200 Va. 764

A. S. HARRISON, JR., ATTORNEY GENERAL OF VIRGINIA v. SIDNEY C. DAY, JR., COMPTROLLER OF VIRGINIA.

Record No. 4931.

Supreme Court of Appeals of Virginia

March 16, 1959.

George D. Gibson, Special Assistant to the Attorney General (A. S. Harrison, Jr., Attorney General; Clarence F. Hicks, Assistant Attorney General; George C. Freeman, Jr.; Hunton, Williams, Gay, Moore & Powell, on brief), for the petitioner.

Aubrey R. Bowles, Jr. (Jack N. Herod; Bowles, Anderson, Boyd, Clarke & Herod, on brief), for the respondent.

JUDGE: SNEAD

SNEAD, J., delivered the opinion of the court.

Pursuant to § 8-714, Code 1950, A. S. Harrison, Jr., Attorney General of Virginia, filed in this court on October 7, 1958 an original petition for a writ of mandamus against Sidney C. Day, Jr., Comptroller of Virginia, to compel him to issue warrants to pay expenses incurred by the Virginia State Ports Authority incidental to the development and operation of port facilities in Hampton Roads.

Under Title 62, Chapter 6.1, Code 1950, as amended, (§§ 62-106.1 through 62-106.19) the Virginia State Ports Authority was established as a body corporate and its powers and duties are there defined. It is provided that such rights, powers and duties shall be exercised by a Board of Commissioners, consisting of seven members appointed by the Governor, subject to confirmation by the General Assembly, who shall serve at the pleasure of the Governor for terms of six years each.

Sections 62-106.7 ¹ and 62-106.8 ² authorize and empower the Authority, among other things, to 'engage in promoting, developing constructing, equipping, maintaining, and operating the harbors or seaports within the State, or its jurisdiction, by means of acquiring or constructing, maintaining and operating at such seaports or harbors water craft and terminal facilities necessary or useful in connection therewith', and to issue revenue bonds for such purposes without pledging the faith and credit of the Commonwealth of Virginia.

The General Assembly at its 1958 session adopted House Joint Resolution No. 70, which follows:

'Whereas, the continuing development of the ports of Virginia is essential in any program of economic or industrial development of the Commonwealth; and

'Whereas, the commerce moving through Virginia's ports is of proven benefit to the entire State; and

'Whereas, Virginia's ports have achieved their present position of eminence in world commerce with port terminals and facilities at the State's major seaports provided, maintained and operated by private industry; and

'Whereas, Virginia's ports are in competition with ports of other states which have and are now receiving substantial financial assistance from their respective state governments in the construction and acquisition of terminals, piers, and other port facilities; and

'Whereas, the increasing pressure of competition from ports with publicly supported terminals and facilities has made it impossible for private industry to provide the necessary new and improved facilties which Virginia's ports must have if they are to obtain the oceanborne general cargo commerce, potential to them, maintain their present volume of trade or to properly serve Virginia agriculture and industry; and

'Whereas, the Virginia State Ports Authority, in the discharge of its responsibilities for developing and promoting Virginia's ports and their commerce, has recommended a program for general cargo facilities acquisition and construction at Hampton Roads based upon financial investment by the State and private industry which, through force of circumstances, could not be presented to the Governor and the General Assembly for consideration until after the State's budget requirements for other purposes had been largely determined, resulting in the General Assembly being unable to appropriate the money requested to inaugurate the program in the 1958-1960 biennium; now, therefore, be it

'Resolved by the House of Delegates, the Senate concurring, That by reason of the high degree of importance of further port development to the economy of the Commonwealth, the General Assembly of Virginia directs the Virginia State Ports Authority to proceed to obtain facts and information regarding the cost of acquisition and construction of such port terminals and facilities for presentation to the Governor and the General Assembly at the regular session of 1960.'

Chapter 642, item 24, of the 1958 Acts of Assembly (Appropriation Act for Biennium 1958-1960) provides that the Governor may, in his discretion, transfer to the Virginia State Ports Authority from his discretionary funds sums not exceeding $50,000 each year of the current biennium to aid the Authority in the development of firm proposals for the acquisition and construction of port facilities for presentation to the General Assembly. The Governor has exercised his discretion and has transferred $50,000 to the Authority.

On October 1, 1958, the Comptroller notified the Attorney General by letter that he entertained doubt as to the constitutionality of Title 62, Chapter 6.1 and especially § 62-106.8(c), since it had been suggested that the powers conferred thereby are violative of the 'internal improvement' clause in § 185 of the Constitution of Virginia. He further advised that he would not issue any warrants in payment of obligations incurred until there has been an adjudication by this court that the statutory provisions are constitutional. Thus the execution of a proposed contract between the Authority and Uhl, Hall & Rich of Boston, engineers, prepared pursuant to House Joint Resolution No. 70, authorizing the firm to make surveys, prepare engineering analyses, and make cost estimates for the acquisition and construction of port facilities at Hampton Roads has been delayed pending the outcome of this proceeding.

The primary issue presented is whether the power sought to be exercised by the General Assembly to own and operate port and harbor facilities as stated in §§ 62-106.7 and 62-106.8, Code 1950, as amended, is prohibited to the State by § 185 of the Constitution of Virginia. Another question presented is whether the statutes in question violate § 188 of the Constitution of Virginia. If these two questions are answered in the negative, then it is apparent that the writ of mandamus prayed for should be awarded.

Section 185 of the Constitution of Virginia provides:

'Neither the credit of the State, nor of any county, city or town, shall be, directly or indirectly, under any device or pretense whatsoever, granted to or in aid of any person, association, or corporation, nor shall the State, or any county, city or town subscribe to or become interested in the stock or obligations of any company, association, or corporation, for the purpose of aiding in the construction or maintenance of its work; nor shall the State become a party to or become interested in any work of internal improvement, except public roads and public parks, or engage in carrying on any such work; * * *' (Italics supplied).

Section 188 of the Constitution of Virginia reads:

'No other or greater amount of tax or revenue shall, at any time be levied than may be required for the necessary expenses of the government, or to pay the indebtedness of the State.'

The court has been greatly assisted by the able and exhaustive briefs of counsel for both litigants as well as their oral arguments. Petitioner contends that the development and operation of port and harbor facilities is a governmental function which the State is authorized to perform notwithstanding the prohibition of § 185 of the Constitution of Virginia against engaging in 'works of internal improvement' by the State, and that since it is a governmental function it is for a 'public purpose' and thus is not forbidden by Section 188 of the Constitution. Petitioner further contends that port and harbor facilities are a part of the 'public roads' which are expressly permitted by Section 185 of the Constitution.

Respondent does not question the general desirability of developing and improving the ports and harbors in the State. He does, however, question the constitutionality of the method by which the objectives are sought to be obtained. He maintains that the power to own and operate port facilities in commercial competition is now expressly denied to the State, whether heretofore considered a governmental function or not, and that the power may only be exercised after the prohibition has been removed by a change in § 185 of the Constitution as was done in reference to public roads and public parks in 1902 and 1928 respectively. He asserts there is a fundamental and basic distinction between the inherent functions of government essential to its operation and without which it cannot be carried on and those activities which are wholly unnecessary to the function of government itself; that this undertaking is not such an inherent function of government, and is the kind of evil § 185, adopted by the 1902 Constitutional Convention, was designed to prevent. Respondent also denies that the acquisition, ownership and commercial operation of port facilities as contemplated has ever been or can be considered an integral part of 'public roads' which are excepted in the Constitution of 1902.

The General Assembly functions under no grant of power. Unless forbidden by some State or Federal constitutional provision, its powers are plenary. When the constitutionality of an act is challenged, a heavy burden of proof is thrust upon the party making the challenge. All laws are presumed to be constitutional and this presumption is one of the strongest known to the law. As we said in Almond v. Day, 199 Va. 1, 6, 97 S.E.2d 824: '* * * It is only where an act is plainly repugnant to some constitutional provision that the courts can declare it null and void. If there be a reasonable doubt whether the act violates the...