Robertson v. Hatcher

• Decision Date: 14 April 1964
• Docket Number: No. 12306,12306
• Citation: 148 W.Va. 239,135 S.E.2d 675
• Parties: C. Donald ROBERTSON et al. v. Lewis A. HATCHER et al.
• Court: West Virginia Supreme Court

Page 675

135 S.E.2d 675

148 W.Va. 239

C. Donald ROBERTSON et al. v. Lewis A. HATCHER et al.

No. 12306.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 29, 1964.

Decided Feb. 7, 1964.

Opinion Filed April 14, 1964.

Syllabus by the Court

1. A declaratory judgment proceeding instituted on behalf of the parties plaintiff and all other persons similarly situated, the subject of which is common to all citizens of the various counties, constitutes a class action.

2. A justiciable controversy exists when one party asserts the unconstitutionality of a statute and the other party, being charged with the performance of certain duties thereunder, denies such assertion.

3. The superimposition of one senatorial district upon another is not in itself violative of Article VI, Section 4, of the Constitution of West Virginia.

4. The language of Article VI, Sections 6 and 7 of the West Virgina Constitution, being clear and unambiguous, will be applied and not construed.

5. An Act of the Legislature which clearly violates one or more provisions of the State Constitution will be declared invalid.

6. Under the provisions of Article VI, Section 6, of the Constitution of West Virginia, pertaining to the election of delegates, every county containing a population of less than three-fifths of the ratio of representation for the House of Delegates as computed under Article VI, Section 7 of such Constitution, shall be attached to some contiguous county or counties, to form a delegate district.

7. The courts will take judicial notice of the journals and other legislative records and where entries therein create a conflict or ambiguity in relation to legislative findings, such findings may be inquired into to determine the truth or falsity thereof.

8. Where that part of an act which contains the principal inducement for the passage thereof is declared invalid, the whole act must fall.

9. Where the valid and the invalid provisions of a statute are so connected and interdependent in subject matter, meaning, or purpose as to preclude the belief, presumption or conclusion that the Legislature would have passed the one without the other, the whole statute will be declared invalid.

C. Donald Robertson, Atty. Gen., Andrew J. Goodwin, Asst. Atty. Gen., Charleston, for appellants.

Brooks Callaghan, Richwood, Robert L. Holland, West Union, Robert S. Jacobson, Marlinton, Charles M. Walker, Charleston, Pros. Attys., Charles R. McElwee, Charleston, as amicus curiae, for appellees.

CAPLAN, Judge.

This proceeding involves the constitutionality of Chapter 158 of the Acts of the Legislature, Regular Session, 1963, hereinafter sometimes referred to as the Act. Passed by the Legislature on March 1, 1963, this Act related to the division of the State into senatorial districts, apportionment of the membership of the house of delegates and congressional districts.

The issue was raised in a declaratory judgment action instituted in the Circuit Court of Kanawha County by C. Donald Robertson as a resident, citizen and taxpayer of Harrison County and as the Attorney General of the State of West Virginia, together with certain prosecuting attorneys of this state who proceeded in their individual and official capacities. Named as defendants therein were Lewis Hatcher, Circuit Clerk of Kanawha County, Ruth Ellison, Circuit Clerk of Wirt County, and Earl L. Davis, Circuit Clerk of Doddridge County, each individually and as members of the class.

In their petition for a declaratory judgment the plaintiffs alleged, on information and belief, that 'Enrolled Committee Substitute for House Bill No. 6, passed by the Legislature of the State of West Virginia on March 1, 1963 [Chapter 158, Acts of the Legislature, Regular Session, 1963], to take effect June 1, 1963, which apportions the membership of the House of Delegates of the State of West Virginia and the Senate of the State of West Virginia, and gives to each county a delegate and representative in the House of Delegates, and which gives to Kanawha County two additional Senators, and makes Kanawha County the Eighth and Seventeenth Senatorial Districts, is unconstitutional, and that these plaintiffs will be materially and adversely affected by Enrolled Committee Substitute for House Bill No. 6, * * *.'

It is further alleged in the petition that if the Act were allowed to take effect, not only the plaintiffs, but all other citizens and residents of the respective counties named, and other citizens, residents and taxpayers similarly situated, will be adversely affected in that these counties will be denied their fair representation in the Legislature. The petition concludes with a prayer that the Act be declared unconstitutional and that the defendants be restrained and enjoined from exercising any power, rights or duties respecting the enforcement of the Act insofar as it purports to apportion the membership of the House of Delegates and the Senate of the State of West Virginia.

Thereafter certain members of the House of Delegates filed a motion to intervene in this proceeding as parties defendant in their individual and representative capacities. In support of their motion to intervene they alleged that they were citizens, residents and taxpayers of, and represented in their official capacities, the twelve counties which would be deprived of their representation in the House of Delegates if the Act under consideration should be declared unconstitutional. They further alleged that their interests were different from and adverse to those of the original parties defendant and that they were not being adequately represented before the court. A motion to intervene as parties plaintiff was also filed by the members of the House of Delegates from Logan County. There being no objection thereto, these motions were granted.

Pursuant to a hearing before the Circuit Court of Kanawha County on August 24, 1963, concerning pretrial motions in which the defendants asserted that the action should be dismissed for failure to state a claim upon which relief could be granted and for failure to include necessary parties plaintiff and defendant, the said court, by written opinion, required the plaintiffs to allege more clearly that a class action existed and that further parties defendant be included. Leave was granted to the plaintiffs to so amend their complaint.

In order to comply with the court's directions, the plaintiffs filed an amended complaint which included as parties defendant the circuit clerks of the twelve counties which would be affected if this Act were declared unconstitutional. Also included were the plaintiff and defendant interveners. Thereafter, certain motions and answers were filed by the additional parties defendant and the case was heard on its merits.

By its order entered on January 10, 1964, the Circuit Court of Kanawha County ruled that Section 2 of Chapter 158, Acts of the Legislature, Regular Session, 1963, was unconstitutional in that it attempted to give to each county in the state a representative in the House of Delegates and for the reason that it failed to provide delegate districts as required by the Constitution; that Section 1 of said Act was constitutional in that the 'superimposing' of the Seventeenth Senatorial District upon the Eighth Senatorial District did not violate Article VI, Section 4, of the Constitution of the State of West Virginia; and that as all issues raised were decided, the action was stricken from the docket.

The plaintiffs filed their petition for appeal from the judgment of the Circuit Court of Kanawha County, which petition was granted by this Court. Thereafter, the defendant and defendant-interveners filed cross-assignments of error to the said judgment. By stipulation signed by counsel for all of the parties to this proceeding it was agreed that the matter was matured and ready for hearing. Consequently, on January 28, 1964, the case was submitted for decision in this Court upon the arguments and briefs of counsel, and upon the brief of The League of Women Voters, which was permitted to file such brief as amicus curiae.

The assignments and cross-assignments of error give rise to the following questions on this appeal: (1) Does this proceeding constitute a class action? (2) Were the proper and necessary parties before the court in this proceeding? (3) Does a justiciable controversy exist between the parties which can be determined in a declaratory judgment proceedings? (4) Is Chapter 158, Acts of the Legislature, Regular Session, 1963, constitutional?

On February 7, 1964, this Court, by order, held that this proceeding constituted a class action; that the necessary and proper parties were before the trial court; that the issues presented constituted a justiciable controversy which could be determined in a declaratory judgment proceeding; and that Chapter 158, Acts of the Legislature, Regular Session, 1963, was unconstitutional and void. This opinion is now filed for the purpose of stating the reasons for the holdings in the aforesaid order.

In relation to the first issue, it has not been contended that this proceeding could not be instituted as a class action. Rather, the defendants assert that the plaintiffs did not proceed in a manner so as to constitute their action a class action.

Certainly, class suits have long been used in equity where it was impracticable to bring into court all interested persons. City of Grafton v. Holt, Judge, 58 W.Va. 182, 52 S.E. 21. With the adoption of the West Virginia Rules of Civil Procedure the procedural distinctions between law and equity have been abolished. R.C.P., Rule 2. A further authorization for the institution of a class action is contained in the aforementioned Rules. Rule 23(a) provides in part: 'If persons constituting a class are so numerous as to make it impracticable to bring them all before the court, such of them, one or more, as will fairly insure the adequate representation of...