Shephard v. Wheeling.

• Decision Date: 19 November 1887
• Citation: 30 W.Va. 479
• Parties: Shephard v. Wheeling.
• Court: West Virginia Supreme Court

30 W.Va. 479

Shephard

v.Wheeling.

Supreme Court of Appeals of West Virginia.

Submitted September 12th, 1887.

Decided November 19th, 1887.

1. Construction of Statutes Province of tup: Court and Legisture.

It is the province of courts to decide what the law is, and determine its application to particular facts in the decision of causes; the province of the Legislature is to declare what the law shall be in the future. (p. 482.)

2. Construction of Statutes Courts.

The courts of this State can not be empowered by the Legislature to pass upon the constitutionality or validity of a legislative act or city ordinance as a general and abstract question; the question must be whether the act or ordinance furnishes the rule to govern the particular case before the court. (pp. 482-3.)

3. Construction op Statutes Repeal Legislative and Judicial

Power.

The power to revoke or annul a statute or ordinance is equivalent to the power to repeal it; and in either case the power is legislative, and not judicial, in its character. (p. 483.)

4. Construction of Statutes Circuit Court City Ordinances.

Acts W. Va. 1875, ch. 72, so far as it attempts to confer upon the Circuit Courts the power to " supersede, revoke, or annul" an ordinance of a city upon the petition of 10 tax-payers residing in said city, is unconstitutional, for the reason that such power is legislative, and therefore forbidden to be exercised by courts in this State. (p. 487.)

67. B. Caldwell, D. CKeefe and H. M. Russel for plaintiff in error.

Ewing, Melvin & Riley for defendant in error. Snyder, Judge:

J. B. Shepherd and 11 others, residents and tax-payers of the city of Wheeling, on April 19th, 1886, filed their petition in the Circuit Court of Ohio county, alleging therein that the council of said city on January 16th, 1886, adopted an ordinance entitled "An ordinance in relation to the police and fire departments of the city of Wheeling, and the appointments, duties and compensation of the commissioners thereof;" that the said council subsequently, in pursuance, of said ordinance, elected four persons as commissioners of the police and fire departments of said city, who have duly qualified and are carrying out the provisions of said ordinance; that said ordinance was made contrary to law, and is invalid, for the reason that it confers illegal powers upon said commissioners, and upon other grounds specifically set forth in the petition, but which it is unnecessary to state here; and they pray that said ordinance, or at least those portions therein referred to, may be superseded, revoked, and annulled. Upon the filing of said petition the court made an order that the city of Wheeling and the four commissioners elected under said ordinance be summoned to answer said petition. After being summoned, the said city and commissioners appeared, and moved the court to dismiss the same, upon the ground that the statute under which the same was filed is unconstitutional and void; which motion being overruled, they de- murred to the petition, and the demurrer being also overruled, they filed their answer, to which the petitioners demurred; and upon the final hearing the court, by an order entered on January 14th, 1887, held and decided that said ordinance, so far as it relates to the police department, was inoperative, and to that extent superseded, revoked and annulled the same, but no further. The city and said four commissioners then obtained this writ of error to said final order.

The plaintiffs in error having moved to dismiss the petition of the defendants in error, because the statute under which it was filed is unconstitutional, the first question presented here is: Did the Circuit Court err in overruling said motion? The statute referred to is the act of December 22d, 1875, (chapter 72, Acts 1875,) entitled "An act authorizing certain laws and ordinances to be superseded and annulled." This act, after providing that, upon the petition of 10 tax-payers residing in any city, town, or village aggrieved by an unlawful or erroneous levy, the Circuit Court may supersede such levy in the same manner that said court may now supersede a levy made by a County Court, declares: "Upon like petition, any ordinance of a city, town, or village, made contrary to law, the Circuit Court may supersede, revoke, and annul the same." This act is assailed upon two grounds: First, because its object is not fairly expressed in its title; and, second, it attempts to vest in the Circuit Court legislative powers. For the purpose of this writ of error it is unnecessary to pass upon the first ground. I shall therefore proceed to consider the second.

The fifth article of our constitution expressly declares that "the legislative, executive, and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others." It necessarily follows, then, from this positive constitutional inhibition, that if this act, in any degree, requires the Circuit Court to exercise legislative powers, it is to that extent void. The constitution does not define what are legislative or what are judicial powers; but what properly belongs to the one and what to the other of these departments of the government is to be determined by reference to the established law as it existed at the time the constitution was framed. It is an elementary principle of universal application that the laws and ordinances of a city adopted by its council, within the scope of its authority, partake of the nature, and have the same effect within the corporate limits of the city, that the same laws could have if they had been enacted by the Legislature of the State in which the city is located. In the one case the Legislature exercises its legislative power directly, while in the other it does so indirectly, by delegating to the city a portion of its functions; but whether the power is exercised directly by the Legislature itself, or indirectly by the council of the city under a legislative grant, the result is the same, and in both instances the power exercised is legislative. The enactment of an ordinance by a city council, or the enactment of a statute by a Legislature, being in each case the exercise of legislative power, the repeal of such ordinance or statute must likewise be the exercise of legislative power. It does not require any precise definition of judicial power, or any nice discrimination as to its extent and limitations to determine that the act of repealing a statute is not the exercise of judicial power.

Without attempting to fix a line of distinction between legislative and judicial powers which will be accurate in all cases, there are certain acts and duties appertaining to each about which there can be no doubt or controversy. As is well said in Rateliife v. Anderson, it is " the province of courts to decide what the law is or has been, and to determine its application to particular facts in the decision of causes; the province of the Legislature is to declare what the law shall be in the future; and neither of these departments can lawfully invade the province of the other." 31 Gratt. 107. Courts determine what the rights of parties are in suits or controversies inter partes which come before them in the ordinary and proper course of judicial proceedings. In determining the rights of the parties to the suit, they incidentally determine the law; but the judicial function is as effectually performed by the court which expresses no formal opinion as by the court which in an opinion announces the reasons for its decision. "The general and ab- stract question whether an act of the Legislature be constitutional cannot, with propriety, be presented to a court; the question must be whether the act furnishes the rule to govern the particular case." Foster v. Commissioners, etc., 9 Ohio St. 540, 543.

When, in the course of determining the rights of the parties to a particular suit or controversy, the court finds it necessary to ascertain whether or not a statute is unconstitutional, the court must necessarily pass upon that question; but in doing so it does not annul or repeal the statute if it finds it in conflict with the Constitution. It simply refuses to recognize it, and determines the rights of the parties just as if such statute had no existence. The court may give its reasons for ignoring or disregarding the statute, but the decision affects the parties only, and there is no judgment against the statute. The opinion or reasons of the court may operate as a precedent for the determination of other similar cases, but it does not...