State ex rel. Armbrecht v. Thornburg

• Decision Date: 08 April 1952
• Docket Number: No. 10472,10472
• Citation: State ex rel. Armbrecht v. Thornburg, 137 W.Va. 60, 70 S.E.2d 73 (W. Va. 1952)
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. ARMBRECHT et al. v. THORNBURG et al.

Page 73

70 S.E.2d 73

137 W.Va. 60

STATE ex rel. ARMBRECHT et al. v. THORNBURG et al.

No. 10472.

Supreme Court of Appeals of West Virginia.

Submitted March 6, 1951.

Decided March 11, 1952.

Opinion Filed April 8, 1952.

Syllabus by the Court.

1. 'When the records of the legislature show the time of adjournment and are clear and unambiguous, respecting the same, they are conclusive; and extraneous evidence cannot be admitted to show a different date of adjournment.' Syllabus, Point 7, Capito v. Topping, 65 W.Va. 587 [64 S.E. 845].

2. 'The courts cannot go into an inquiry as to the truth or falsity of facts upon which an act of the legislature is predicated, where the latter has sole jurisdiction of the subject.' Syllabus, Point 2, Lusher v. Scites, 4 W.Va. 11.

Thomas P. O'Brien, Prosecuting Atty., W. F. Keefer, Asst. Prosecuting Atty., Wheeling, for plaintiffs in error.

Chas. F. Paul, C. Lee Spillers, Chas. McCamic, Wright Hugus and Joseph R. Curl, all of Wheeling, for defendants in error.

GIVEN, Judge.

The State of West Virginia, at the relation of Harold P. Armbrecht and Charles L. Ihlenfeld, filed a petition in the Circuit Court of Ohio County against Grier Thornburg, August W. Petroplus and W. H. Havercamp, ballot commissioners of Ohio County, praying a peremptory writ of mandamus commanding the defendants 'to indicate upon the Official Primary Ballots of Ohio County, West Virginia, that each voter is entitled to vote for four members of the House of Delegates of Ohio County,' at the May, 1952, primary election to be held in that county. A Rule was duly issued and, upon the hearing of the matters arising on the petition, the Circuit Court of Ohio County awarded a peremptory writ as prayed for, holding, in effect, that Chapter 166 of the 1951 Acts of the Legislature was unconstitutional. The act apportioned unto Ohio County three delegates. Under the prior reapportionment act Ohio County was entitled to four delegates. This Court granted a writ of error.

It is contended that the act is unconstitutional for three reasons: (1) That the act was passed after the Legislature had been in session sixty days, in violation of Section 22 of Article VI of the State Constitution; (2) that the act disregarded constitutional provisions of Section 6 of Article VI of the State Constitution in that it apportioned one delegate to certain counties not having three-fifths of a delegate population ratio; and (3) that the official census of 1950 had not been completed at the time of the passage of the act.

Section 22 of Article VI of the Constitution, as last amended, limits the period of time a regular session of the Legislature may continue to a maximum of sixty days, unless extended by a vote of two-thirds of the members of each house. The section reads: 'All sessions of the Legislature, other than extraordinary sessions, shall continue for a period of sixty days from the date of beginning. But all regular sessions may be extended by the concurrence of two-thirds of the members elected to each house.' The 1951 Legislature convened on the tenth day of January. The sixty day period fixed as a maximum length of time for the continuance of the session by Section 22 of Article VI ended at midnight March tenth. The contention is made that House Bill No. 30, which became Chapter 166 of the Acts of 1951, was not finally passed by the Senate until after midnight, March tenth, and that the clock by which the Senate was operating had been purposely stopped sometime before midnight of March tenth. In support of this contention petitioners in the trial court offered evidence of three witnesses, a member of the Senate and two members of the House of Delegates. This extrinsic evidence, if it can be considered by the Court, would establish that House Bill No. 30 was passed by the Senate after midnight of March tenth, 1951. It is the position of the ballot commissioners that such evidence is not admissible for the purpose of impeaching an enrolled bill, or the journal records of the Senate and House of Delegates.

The bill in question passed the House of Delegates on the seventh day of March. It was received by the Senate in due course and, after passage by that body, was sent to the Governor, who approved it. The Clerk of the Senate has certified that the bill was duly passed on the tenth day of March, or within the sixty day period. The Clerks of each house have certified, in effect, that the session ended on March tenth, 1951. The act has been included in the printed acts of the 1951 Legislature as Chapter 166. The bill, therefore, reaches the Court as an enrolled bill, and nothing appears on the face thereof indicating any possible irregularity in the consideration or passage thereof.

Many decisions will be found to the effect that the courts will not look beyond the enrolling of a bill to determine its constitutionality; that it will be conclusively presumed to have been regularly passed by the Legislature when proper authentication appears on the face thereof. See Western Union Telegraph Company v. Taggart, 141 Ind. 281, 40 N.E. 1051, 60 L.R.A. 671; Territory ex rel. Haller v. Clayton, 5 Utah 598, 18 P. 628; Morrow v. Henneford, 182 Wash. 625, 47 P.2d 1016; Woolfolk v. Albrecht, 22 N.D. 36, 133 N.W. 310; Atchison, Topeka & Santa Fe Railway Co. v. State of Oklahoma, 28 Okl. 94, 113 P. 921, 40 L.R.A.,N.S., 1; Field v. Clark, 143 U.S. 649, 12 S.Ct. 495, 36 L.Ed. 294. What we believe to be the weight of authority, however, is that the courts may look to the journals of the Legislature and to other public records, but not to extrinsic evidence, to determine whether an act has been passed in accordance with constitutional requirements. See Wise v. Bigger, 79 Va. 269; Jackson v. State, 131 Ala. 21, 31 So. 380; Andrews v. People, 33 Colo. 193, 79 P. 1031; Koehler v. Hill, 60 Iowa 543, 14 N.W. 738, 15 N.W. 609; Attorney General v. Rice, 64 Mich. 385, 31 N.W. 203; State ex rel. McKinley v. Martin, 160 Ala. 181, 48 So. 846; White v. Hinton, 3 Wyo. 753, 30 P. 953, 17 L.R.A. 66; Weeks v. Smith, 81 Me. 538, 18 A. 325; State ex rel. Hesson v. Smith, 44 Ohio St. 348, 7 N.E. 447, 12 N.E. 829; Homrighausen v. Knoche, 58 Kan. 817, 50 P. 879; Intergration of Bar Case, 244 Wis. 8, 11 N.W.2d 604, 12 N.W.2d 699, 151 A.L.R. 586; State ex rel. Cline v. Schricker, 228 Ind. 41, 88 N.E.2d 746, 89 N.E.2d 547. In the opinion in the case last cited a statement is found which illustrates the reasoning of the courts so holding, which reads [228 Ind. 41, 88 N.E.2d 748]:

'It has been the consistent position of this court that the evils attending uncertainty in ascertaining the statutory laws of the state would far outweigh any benefits which might be obtained by permitting an impeachment of the authentication of an act. If the members of the General Assembly violate their constitutional duties on adjournment, they can be defeated the next time such offices come up for election, but the remedy is not with the courts.

"* * * Public authority and political power must, of necessity, be confided to officers, who, being human, may violate the trusts reposed in them. This perhaps cannot be avoided absolutely. But it applies also to all human agencies. It is not fit that the judiciary should claim for itself a purity beyond others; nor has it been able at all times with truth to say that its high places have not been disgraced. The framers of our government have not constituted it with faculties to supervise co-ordinate departments and correct or prevent abuses of their authority. It cannot authenticate a statute; that power does not belong to it; nor can it keep the legislative journal. It ascertains the statute law by looking at its authentication, and then its function is merely to expound and administer it. It cannot, we think, look beyond that authentication, because of the constitution itself. If it may, then for the same reason it may go beyond the journal, when that is impeached; and so the validity of legislation may be made to depend upon the memory of witnesses, and no man can, in fact, know the law, which he is bound to obey. Such consequences would be a large price to pay for immunity from the possible abuse of authority by the high officers who are, as we think, charged with the duty of certifying to the public the fact that a statute has been enacted by competent houses. Human governments must repose confidence in officers. It may be abused, and there may be no remedy.' Evans, Auditor v. Browne, 1869, 30 Ind. 514, 526. See also Wigmore, Evidence (3rd Ed.) § 1350.'

The question appears to have been first discussed by this Court in Lusher v. Scites, 4 W.Va. 11. Some of the language contained in the opinion in that case may possibly be construed to the effect that an enrolled bill is conclusively presumed to have been regularly passed by the legislative body. In Osburn v. Staley, 5 W.Va. 85, 13 Am.Rep. 640, however, the Court held, syllabus, Points 3 and 4, as follows:

'3. The constitution of West Virginia requires each branch of the legislature to keep a journal, and provides that on the passage of every bill the vote shall be taken by yeas and nays, and be entered on the journal, and no bill shall be passed by either branch without an affirmative vote of a majority of the members elected thereto; and on a question touching the validity of an act, this court can look beyond the authentication of the act, to the journal of either branch, to see if the bill passed by the required number of votes.

'4. While the legislature is governed by the spirit of the constitution, the courts cannot declare an act of the legislature invalid unless its invalidity is placed beyond a reasonable doubt. A reasonable doubt must be solved in favor of the legislative action, and the act be sustained. The courts must be guided by the express words of the constitution, and not by its supposed spirit. Whenever an act of the legislature can be so construed as to avoid...