Shields v. Bennett

• Decision Date: 20 July 1874
• Citation: 8 W.Va. 74
• Court: West Virginia Supreme Court
• Parties: Shields and Preston v. Bennett, Auditor.

8 W.Va. 74

Shields and Preston

v.Bennett, Auditor.

Supreme Court of Appeals of West Virginia.

July 20, 1874.

1. The provision in the Constitution of this State, (Art. 6, sec, 30) that

no law shall embrace more than one object, as qualified by the provision in the same section, that if any object shall be embraced in an act which is not expressed in the title, the act shall be void only as to so much thereof as shall not be so expressed, does not invalidate an act containing more than one object, when the objects are expressed in the title.

2. The provision in the same section, that the object of an act shall

be embraced in the title, with the explanatory provision just stated, that an act shall be void only as to so much as shall not be so expressed, unequivocally, invalidates an act as to any object not expressed in the title.

3. The question, whether the object of an act is expressed in the title,

is determined by comparison of the act and the title, and is not influenced by any former law which the latter act, if valid, expressly or by implication, repeals.

4. The most liberal construction, favorable to the validity of legis-

lation, which the language of these provisions admits, should be adopted.

5. When the principal object of an act is expressed in the title, and

the act embraces, with such principal object, other auxiliary objects, the act, if not otherwise objectionable, is valid, not only as; to the principal, but likewise as to the auxiliary objects.

6. Generally, the language of a title should be construed in its most

comprehensive sense.

7. When, in the title of an act, an appropriation is mentioned as its

object, this is sufficient to sustain the validity of a provision indicating an officer on whose requisition the appropriation shall be paid.

8. The provision of the Constitution, in the section referred to, that no

law shall be revived or amended by its title, but the law revivedor the section amended shall be inserted at large in the new law} does not relate to the repeal of a law either by express words, or by the enactment of a subsequent law with which the former is inconsistent by which it is necessarily displaced.

9. This provision does not require, that, when a section is amended, the

act amending it, shall recite or show on its face that it does so, or that it shall in any manner indicate that such section previously existed.

10. The purpose of the provision is to inhibit the revival or amendment of a law by mere reference to its title, and to require that an act of the Legislature shall state on its face the law that it constitutes.

11. As the Legislature, when it thinks proper, may change the existing laws, or make new ones; and two inconsistent laws cannot at the same time regulate the same subject, the former necessarily ceases to be the law while the latter prevails.

12. The provision of the Constitution, (Art. 7, sec. 5,) that the Governor shall take care that the laws be faithfully executed, grants no power other than what is implied in the imposition of the duty.

13. This provision does not generally, if ever, make it the duty of the Governor, himself, to execute the laws. But, as the language implies, it makes it his duty carefully to observe the manner in which the different officers of the government exercise their proper functions and execute the laws committed to their charge, or their failure to perform such duties, and when they fail, if he has the power to remove them from office, in a proper case to remove them; or to bring the subject to the cognizance of that department of the government which has the power to remove or punish the delinquents.

14. If, in any case, the legislature may properly provide that a public act shall be done, and leave it to the Governor, under this provision of the Constitution, to do the act, yet it will not be presumed in the construction of a doubtful statute, that the Legislature intended the Governor himself to do the act, and therefore did not intend to indicate another officer to do it. On the contrary, whenever the language of legislation can be understood to indicate such an officer, it will be construed to have such effect.

15. When the Legislature requires an officer, other than the Governor, to perform a public act, the constitutional provision in question, does not authorize the Governor to perform the act.

16. Under the act of the Legislature relative to the appointment and duties of the Janitor, passed in February, 1872, and the act making appropriations of public money, passed in February, 1873, the charges pertaining to the capitol building, mentioned in sections 31, 32 and 33, of the latter act, including the charge for insuring the capitol building, are not payable on the order of the Governor, but only on that of the Janitor.

17. The Governor's order does not bind or authorize the Auditor to issue his warrant for the payment of these charges; and this Court upon such order, will not by mandamus compel the Auditor to do so.

This was an original application to this Court, by the petitioners Joseph Shields and A. A. Preston, to award to them a peremptory mandamus against Edward A Bennett, then Auditor of State, to compel him to issue his warrant on the Treasurer of State, in favor of the petitioners, for the sum ot $229.50, the amounts of premiums on several policies of insurance that had been theretofore effected by the Secretary of the " State House Company," on the building then occupied by the several officers of State, required, by law, to keep their offices at the Seat of Government, and the two houses of the Legislature &c, as a capitol.

The material facts, together with the constitutional provisions and the several statutory enactments that were the subject of consideration and construction in this Court, appear in the opinion of the Court.

Thomas B. Swann and Nicholas Fitzhugh for the petitioners.

Attorney General Mathews for Edward A. Bennett, Auditor of State.

Hoffman, Judge, delivering the opinion of the Court:

On the 20th day of January, 1874, Shields and Preston filed their petition in this Court, in which they represent:

That, by an act passed by the Legislature on the 7th day of April, 1873, an appropriation of $10,000 was made for the civil contingent fund for the fiscal year ending on the 30th day of September 1874; and an appropriation of $600 was made to insure the capitol building and State library, to be paid out of the civil contingent fund: That on the loth day of November, 1873, the appropriation for insurance had not been exhausted: That the capitol building is owned by a body corporate, known as the State House Company, and occupied by the State, under a license by the Company: That ever since the building has been so occupied, the legislature has made provision for its insurance: That in November, 1873, Laidley, the secretary of the State House Company, made application to the petitioners, on behalf of the Company, to obtain policies of insurance on the capitol building, in the insurance companies represented by the petitioners in the Fire and Marine Insurance Company of Wheeling, $5,000; in the Underwriters' Company of New York, $12,500; and in the Franklin Insurance Company, $12,500: That, in consequence of this application, the petitioners procured policies of insurance to be issued by the several insurance companies mentioned, for the respective amounts stated, on the capitol building, and delivered them to the Governor, who accepted and approved them, and, therefore, on the 15th day of November, 1873, made an order on the Auditor to pay out of the contingent fund, to the petioners, as agents of the companies mentioned, the sum of $229.50, the amount of premiums and costs due on the policies: That on the same day, the petitioners pre" sented the order to the Auditor and applied to him for his warrant on the Treasurer for the sum last mentioned but he refused to issue his warrant, and endorsed on the order that it was presented for payment, and he declined to issue his warrant for the amount, because by law, the Janitor was charged with the proper care and preservation of the capitol building, and bills for its insurance are required to be paid out of the civil contingent fund upon the requisition of the officers having those matters in charge; and that, consequently, payment on this account should be made only upon the order of the Janitor: That the policies of insurance still remain with the Governor, and the petitioners have, out of their own moneys, paid to the insurance companies the sums due them respectively on the policies; and these sums are now their property, and the several insurance companies are not interested in the money. The petitioners, therefore, pray that a writ of mandamus be awarded, directed to the Auditor, commanding him to issue his warrant for §229.50 upon the Treasurer, payable to the order of the petitioner's agents, out of the appropriation for the civil contingent fund, on account of the policies.

It was ordered that a mandamus nisi issue to the Auditor, returnable on the 26th day of January, 1874.

The Auditor made return in which he states: That the petitioners contracted for the^insurance of the capitol buildings, with the State House Company, which was not the agent of the State, and had no authority to act in behalf of the State, and that the petitioners have no demand against the State:

That if the contract for the insurance of the capitol building, made between the petitioners and the State House Company, was approved by the Governor, he had no authority to approve and ratify it in behalf of the State, and the Auditor had no authority to issue his warrant on the Treasurer, upon the requisition presented by the petitioners:

That the Janitor is the only officer authorized by law to contract for the insurance of the capitol building:

That on the 17th day of November, 1873, the Janitor procured from Moore, (from whom policies of insurance on the building...