Slack v. Jacob

• Decision Date: 13 September 1875
• Citation: 8 W.Va. 612
• Parties: John Slack, Sr., and Others v. John J. Jacob andOthers.
• Court: West Virginia Supreme Court

8 W.Va. 612

John Slack, Sr., and Others

v.John J. Jacob andOthers.

Supreme Court of Appeals of West Virginia.

September 13, 1875.

1. It is the duty of the court to uphold a statute when tne conflict between-it and the Constitution is not clear, and the implication which

must always exist that no violation has been intended by the Leg-. lature may require, in some cases, where the meaning of the Constitution is in doubt, to lean in favor of such a construction of the statute as might not at first view seem most obvious and natural Where the meaning of the Constitution is clear, the court, if possible, must give the statute such a construction as will enable it to have effect.

2. It is always to be presumed that the Legislature designed the stat-

ute to take effect, and not to be a nullity.

3. Wherever an act of the Legislature can be so construed and ap_

plied as to avoid a conflict with the Constitution, and give it the force of law, such construction will be adopted by the courts.

4. The performance of many duties, which the Legislature may pro-

vide for by law they may refer either to the chief executive of the-

state, or at their option to any other executive or ministerial

5. Generally, the words of a statute are to be taken by their ordinary and familiar significance and import, and regard is to be had to their general and proper use.

G. The expediency or inexpediency of an act is a question for the Legislature and not for the courts.

7. The preamble may be consulted in some cases to ascertain the in-

tentions of the Legislature. But it is chiefly from the main body the purview of the act, that the will of the Legislature is to be learned; when this is clear and express, the preamble will not avail to contradict it.

8. That part of section thirty-eight of the sixth article of the Consti-

tution which is in these words: "Nor shall any Legislature, authorize the payment of any claim or part thereof hereafter created against the State, under any agreement or contract made without express authority of law; and all such unauthorized agreements shall be null and void," does not apply to claims predicated upon simple justice and right, and does not prevent the Legislature from voluntarily doing justice and right, when the claim is not predicated on a contract made without express authority of law.

9. Courts are not authorized to look into the preamble or recitals of an

act for alleged or supposed fraud, mistakes, or errors of judgment in the Legislature, upon which to declare the enactment void.

10. Courts will not presume fraudulent intent and corrupt purposes on the part of the Legislature, but will presume the contrary.

11. The act of the Legislature passed on the 20th of February, 1875, in these words, viz:

"An Act to remove the seat of government temporarily to "Wheeling.

Whereas, Henry K. List, Michael Keilly, John McLure, Geo. W. Franzheim and Simon Horkheimer, citizens of Wheeling, have agreed to furnish the State without cost thereto, suitable accommodations, in said city, for the legislative, executive and judicial departments of the State, including the State library, should the seat of government of the State be removed temporarily to said city; and

Whereas, It appears to the Legislature that the Capital of the State should be located at a more accessible and convenient point; therefore, "Be it enacted by the Legislature of West Virginia: "I. That on and after the expiration of ninety days from and after the the passage of this act, until hereafter otherwise provided by law, the seat of government of the State of West Virginia shall be at the city of Wheeling.

"The Governor is hereby authorized to cause suitable accommodations to be prepared in the city of Wheeling for the several departments of the State Government, including the Legislative, Executive and Judicial Departments, and to remove thereto, and cause to be properly placed or arranged the books, papers and movable property, now in the city of Charleston, belonging to the several State offices, including the State library, the said Henry K. List, Michael Reilly, John McLure, Geo. W. Franzheim and Simon Horkheimer, agreeing to indemnify the State against the expenses thereby incurred.

"II. All acts and parts of acts in conflict with the provisions of this act are hereby repealed: "

The said act of the Legislature is constitutional and valid.

12. The object of said act is sufficiently explained in the title thereto under the provisions of the thirtieth section of the sixth article of the Constitution of the State.

13. A judge of a circuit court in vacation, or a court of equity, had not power or authority to enjoin by injunction John J. Jacob as a citizen, or as Governor of the State, or other officer or officers person or persons acting under his authority as Governor of the State, or by his direction, in the execution of said act of the Legislature from removing from the city of Charleston to the city of Wheeling the papers and movable property in said act mentioned, until the constitutionality and validity of the said act was judicially determined, although the bill praying the injunction alleged the unconstitutionality of the act; the powers and duties springing from said act and the Constitution being executive and of such nature that enjoining the Governor from executing said act was an invasion by the judiciary of executive powers and duties devolved upon the Governor as chief executive of the State.

14. The Judiciary can not inquire into the motives and necessities which may have superinduced the passage of an act.

15. The courts have no right to set aside, to arrest or nullify a law passed in relation to a subject within the scope of the legislative authority, on the ground that it conflicts with their notions of natural right, absolute justice or sound morality.

The case is fully stated in the opinion of the Court.

The Hon. Joseph Smith, judge of the circuit court of Kanawha county, presided at the trial below.

James H. Ferguson, William A. Quarrier and E.Willis

Wilson for the appellants.

Attorney General 31athews, Daniel Lamb and W. W.

Arnett for the appellees.

Haymond, President:

John Slack, Sr., John T. Cotton, Edward C. Stcolle, John C. Ruby, John D. White, Alexander H. Wilson and Gustave Stolle, on behalf of themselves and all other citizens and tax payers of West Virginia, except the defendants, filed their bill of injunction in the circuit court of the county of Kanawha, in said State, on the first Monday in May, 1875, in which they charged and alleged, substantially, as follows, viz: That they are citizens, voters, owners of real and personal property and tax payers of the city of Charleston, in said county; that by section twenty-two, article four of the Constitution of this State, of 1863, it was provided that "the seat of government shall be at the city of Wheeling, until a permanent seat of government be established by lawthat, by an act of the Legislature passed February 26, 1869, chapter seventy-three, entitled, "An act permanently locating the seat of government for this State" it was provided, by section one of said act, that, "The permanent seat of government for this State is hereby located at the town of Charleston, in the county of Kanawha that during the latter part of the year 1870, a number of citizens of said town of Charleston and vicinity, having completed the building for the use of the Legislature and State officers, a building in every respect, admirably adapted to the purposes of a state house, and the most capacious, convenient and suitable one within the limits of the State, for such purposes, tendered the same to the Governor, William E. Stevenson, who was duly authorized by said act, to receive the same on behalf of the State, for the use of the Legislature and the State officers, without charge, so long as the same should State as its capitol; that said Governor Wiliam E. Stevenson, accepted this generous tender, on behalf of the State, and occupied the said building for

the purposes aforesaid; that in consequence of said permanent location of the seat of government, there has been a large accession to the population of said town, now city of Charleston, business enterprise largely increased under its stimulating influences, and real estate, particularly, within the limits of said city, and especially the property of your orators, materially advanced in value without exception; that by section twenty, article six of the State Constitution of 1872, it is provided that "The seat of government shall be at Charleston, until otherwise provided by law;" that the Legislature on thcv day of February, 1875, passed a pretended act, entitled, "An act to remove the seat of government temporarily to Wheeling," a certified copy of which act is filed with the bill and is as follows, viz: "An Act to remove the seat of government temporarily to Wheeling.

Whereas, Henry K. List, Michael Riley, John McLure, George W. Franzheim, and Simon Horkheimer, citizens of Wheeling, have agreed to furnish the State, without cost thereto suitable accommodations in said city for the Legislative, Executive and Judicial departments of the State, including the State Library should the seat of government be removed, temporarily, to said city; and, whereas, it appears to the Legislature that the capital of the State should be located at a more accessible and convenient point; therefore, Be it enacted by the Legislature of West Virginia:

(i 1. That on and after the expiration of ninety days from and after the passage of this act, until hereafter otherwise provided by law, the seat of government of the State of West Virginia shall be at the city of Wheeling. The Governor is hereby authorized to cause suitable accommodations to be prepared in the city of Wheeling for the several departments of the State government, including the Legislative, Executive and Judicial depart- merits, and to remove thereto, and cause to be properly...