Lipscomb v. Nuckols

• Decision Date: 26 February 1934
• Citation: 161 Va. 936
• Parties: P. PRYOR LIPSCOMB AND OTHERS v. O. N. NUCKOLS AND OTHERS.
• Court: Virginia Supreme Court

Page 936

161 Va. 936

P. PRYOR LIPSCOMB AND OTHERS v. O. N. NUCKOLS AND OTHERS.

Supreme Court of Virginia, Richmond.

February 26, 1934.

Present, All the Justices.

1. COUNTIES — County Executive Form of Government — Sections 110-115a of the Constitution of 1902, as Amended in 1928 — Abolition of Offices — Case at Bar. — In the instant case the contention of appellees was that the provisions of chapter 368 of the Acts of 1932, which attempted to remove them from office before the expiration of their term, were in conflict with section 112 of the Constitution, and therefore void. The trial court held that the legislature had no power to shorten or vacate the office of the members of the old board of supervisors.

Held: That in so ruling the trial court erred.

2. COUNTIES — County Executive Form of Government — Sections 110-115a of the Constitution of 1902, as Amended in 1928 — Abolition of Offices. — It is an undeniable proposition, that the two branches of the legislature, as the direct representatives of the people, have the right, when no restrictions have been imposed upon them, either in express terms or by necessary implication by the Constitution, to create and abolish offices accordingly as they may regard them as necessary or superfluous. And that they may also, under like circumstances, deprive the officers of their salaries, either directly, by removing them from office, or indirectly, by so changing the organization of the departments to which they are attached as to leave them without a place. But, of course, this power in the legislature cannot be construed to extend to any of the various classes of officers which are known as constitutional officers; that is, to any of those officers whose tenure and term of office are fixed and defined by the Constitution.

3. COUNTIES — Organization of County Government — Article VII, Sections 110-115a of the Constitution of 1902, as Amended in 1928 — Section 110 of the Constitution of 1902, as Amended in 1928. — Article VII of the Constitution of 1902, as amended in 1928, consists of seven sections, 110-115a, inclusive, each dealing with the organization and government of counties. The last paragraph in section 110, "Notwithstanding the provisions of this article, the General Assembly may * * * provide for complete forms of county organization and government different from that provided for in this article," makes the provisions of each and every section in article VII subject to this provision. It was contended by appellees that, because this last paragraph in section 110 was repeated in sections 111 and 113 and omitted in section 112, it was not intended to authorize the legislature to abolish any district or county office during the term of any officer named therein.

Held: That the last paragraph in section 110 applied to section 112.

4. CONSTITUTIONAL LAW — Construction of Constitutions — Presumption of Constitutionality — Doubt Resolved in Favor of Constitutionality of Statute. — The legislature functions under no grant of power. It can do those things which are not forbidden by the State or Federal Constitutions, or which are not repugnant to those elementary social rights upon which society, as we know it, rests. All laws are presumed to be constitutional and must, wherever there is doubt, be sustained, but there must be some room for honest doubt, arising out of the law itself as written. There must be some substance in the doubt; a shadow is not enough.

5. CONSTITUTIONAL LAW — Construction of Constitutions — Plain Provision. — Constitutions are not esoteric documents and recondite learning ought to be unnecessary when we come to interpret provisions apparently plain. They speak for the people in convention assembled, and must be obeyed.

6. CONSTITUTIONAL LAW — Words Given Their Usual Meaning. — It is a general rule that the words of a Constitution are to be understood in the sense in which they are popularly employed, unless the context or the very nature of the subject indicates otherwise. In the first place, every word employed in the Constitution is to be expounded in its plain, obvious, and common sense, unless the context furnishes some ground to control, qualify, or enlarge it.

7. CONSTITUTIONAL LAW — Last Paragraph of Section 110 of the Constitution of 1902, as Amended in 1928, Modifies or Qualifies the Provisions of Section 112. — Giving to the language used in the last paragraph of section 110 its plain, natural, and usual significance and import, it modifies or qualifies the provisions of section 112. Simply because this qualification is repeated in sections 111 and 113 and is not repeated in section 112 is not sufficient to exclude its application from the provisions of the latter section. To so construe section 112 would necessitate the court's adding words of exception which are not found in section 110.

8. CONSTITUTIONAL LAW — Construction — Effect Given to Express Provision Rather than Implication. — It is the duty of the court in construing the Constitution to give effect to an express provision, rather than to an implication.

9. CONSTITUTIONAL LAW — Construction — Legislative or Executive Construction. — While the construction of a constitutional provision or an act of the General Assembly by the executive or legislative branch of the government, or both, is not controlling upon the court, such construction is entitled to consideration. If such construction is contemporaneous, it is entitled to great weight.

10. COUNTIES — County Executive Form of Government — Abolition of Offices — Case at Bar. — By the adoption of chapter 368 of the Acts of 1932, the General Assembly has provided the method of abolishing the existing organization and government for the counties and substituting a new organization and government in place of the old. The county of Henrico having acted under this authority, the result is that the old legislative body called the "board of supervisors" has been abolished and a new legislative body called the "county board of supervisors" has been created. The method of electing this new body is different from the method of electing the old body. The powers and duties of the new board are different from those exercised by the old board. The new county government is a different corporate entity from the old. Henrico county has adopted a complete form of county organization and government different from that provided in article VII, which is within the intent of the provisions of the last paragraph of section 110.

11. COUNTIES — Change in County Government — Abolition of Offices — Case at Bar. — The power to provide for a complete change in the form of county organization and government includes the power to abolish the old form and all offices thereunder. The incidental effect may be to oust or deprive the old officers of their offices before the expiration of their terms. Both the legislature and the electors of Henrico county have acted under this constitutional authority and have deprived the appellees here of office.

12. COUNTIES — County Executive Form of Government — When the New Form of Organization and Government Takes Effect — Meaning of "When." — Section 110 of the Constitution of 1902, as amended in 1928, provides that the new form of county government is to become effective in any county when submitted to the qualified voters thereof in an election held for such purpose and approved by a majority of those voting thereon. The trial court in the instant case construed "when" to mean that instantaneously with the election the new form of government should become effective and that it was the duty of the old board to assume all the enlarged powers granted by chapter 368 of the Acts of 1932. But this act grants to the old board no power at all. It provides for a new legislative body for the county, elected, not by districts, but by the county as a whole, and to the newly elected "county board of supervisors" the legislature has given authority to install the new form of government.

13. COUNTIES — County Executive Form of Government — When the New Form of Organization and Government Takes Effect — Meaning of "When." — If the word "when," as used in section 110 of the Constitution of 1902, as amended in 1928, is used in a temporal sense, then it would seem to follow that the change in the form of organization and government contemplated by the Constitution must become effective on the date of its approval by the voters in any county, and that, since the provisions of chapter 368 are not so drawn as to become effective on that date, then the whole act is void. But this would be a strained construction of the language used.

14. COUNTIES — County Executive Form of Government — When the New Form of Organization and Government Takes Effect — Meaning of "When." — Section 110 of the Constitution of 1902, as amended in 1928, provides that the new form of county government shall become effective in any county when submitted to the qualified voters thereof in an election held for such purpose and approved by a majority of those voting thereon. From the context, "when" describes the occurrence which must take place; i.e., the submission to and approval by the qualified voters before the act becomes operative in any county.

15. WORDS AND PHRASES — "When." — The word when does not necessarily refer to the instant of time spoken of; it frequently is used in a relative, instead of an absolute, sense, referring not to the present, but to a different time; and means, according to the context, "whenever," "upon which," "in case," "if," etc.

16. COUNTIES — County Executive Form of Government — When the New Form of Organization and Government Takes Effect — Meaning of "When." — Section 110 of the Constitution of 1902, as amended in 1928, provides that the new form of county government is to become effective in any county when submitted to the qualified voters thereof in an election held for such purpose and approved...