State ex rel. Brotherton v. Blankenship

• Decision Date: 03 July 1973
• Docket Number: No. 13369,13369
• Citation: 157 W.Va. 100,207 S.E.2d 421
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. William T. BROTHERTON, Jr., etc. et al. v. C. A. BLANKENSHIP, Clerk, etc.

Page 421

207 S.E.2d 421

157 W.Va. 100

STATE ex rel. William T. BROTHERTON, Jr., etc. et al. v. C. A. BLANKENSHIP, Clerk, etc.

No. 13369.

Supreme Court of Appeals of West Virginia.

Submitted June 12, 1973.

Decided July 3, 1973.

Syllabus by the Court

1. Even though the members of this Court have an interest in the outcome of a case pending before them, where such interest is remote and indirect they are not disqualified to hear the case and shall proceed to a final decision therein and this is especially so as a matter of necessity since the law has made no provision for another tribunal or for a substitution of judges to hear and decide the controversy.

2. Whether an ambiguity exists in a provision of the Constitution, justifying interpretation thereof, is determined not only from the meaning of particular words but may arise from a consideration of the general scope and meaning of the Constitution when all of its provisions are examined.

3. Article 6, Section 51 of the West Virginia Constitution, when read in its entirety shows a clear intent on the part of the framers thereof and of the people who adopted it to preclude both the Legislature and the Governor from altering the budget of the judiciary department as submitted by that department to the Auditor.

4. The judiciary department has the inherent power to determine what funds are necessary for its efficient and effective operation.

5. The Governor does not possess the authority under the provisions of Article 6, Section 51 of the West Virginia Constitution to disapprove or reduce items or parts of items contained in the Budget Bill, as enacted by the Legislature, which relate to the judiciary department.

6. Although the discretion vested in the Governor respecting his official duties is not subject to control or review by the courts so long as his actions fall within the sphere of his lawful authority, when he clearly abuses his discretion it is the duty of the courts to review his actions and prevent such abuse.

7. Although the Governor is authorized under the provisions of Article 6, Section 51, Subsection D(11) to disapprove or reduce items or parts of items contained in the Budget Bill pertaining to the executive department, where he reduces the funds in the budget of a constitutional officer to zero, thereby effectively eliminating the function of his office, the Governor's action constitutes a clear abuse of discretion and will not be permitted.

8. Under Article 6, Section 51 of the West Virginia Constitution, the Governor does have the authority to strike items or parts of items pertaining to the budget of the executive department and in lieu thereof to insert a lump sum figure equal to the sum of the parts of items stricken after the Budget Bill has been enacted by the Legislature and presented to him for approval.

9. Inasmuch as our Constitution provides in Article 12, Section 1 thereof that the Legislature shall provide for a thorough and efficient system of free schools, the action of the Governor, in eliminating in their entirety the funds provided for that purpose, constitutes an abuse of discretion and will not be permitted.

Vincent V. Chaney, George S. Sharp, Charleston, for relators.

Jack M. McCarty, Charleston, for respondent Blankenship.

John E. Carrigan, W. Victor Ross, Charleston, for intervenor respondent Moore, Gov.

CAPLAN, Justice:

Invoking the original jurisdiction of this Court, the petitioners, William T. Brotherton, Jr., as a Member and President of the Senate of West Virginia, and Lewis N. McManus, as a Member and Speaker of the House of Delegates of West Virginia, and as citizens and taxpayers of said State, seek a writ to require the respondent, C. A. Blankenship, Clerk of the House of Delegates, and as such, the keeper of the rolls and custodian of the acts and joint resolutions of the Legislature, 'to publish the true Budget Act in such manner as to include the full and lawful amounts appropriated by the Legislature without the void deletions, reductions and vetoes attempted by the Governor and without giving effect to the unlawful and unconstitutional additions of figures and language and amendments and changes in the Budget Bill attempted by the Governor and to furnish Petitioners true copies of the Budget Act as so published * * *.'

On June 1, 1973, the same day upon which the petition was filed, this Court, upon said petition together with the exhibits filed therewith, issued a rule returnable June 5, 1973. The Honorable Arch. A. Moore, Jr., Governor of the State of West Virginia, on June 4, 1973, filed a motion praying that he be granted leave to intervene in this action as a party respondent. Upon the return day of the rule that motion was granted and, upon motion of the intervenor, the hearing on the rule was continued until June 12, 1973. On the latter date, upon the petition and exhibits, the demurrer and answer of the respondent, a plea in abatement of the intervenor and response thereto, the intervenor respondent's demurrer to the petition and demurrer to respondent's answer, and upon briefs and arguments filed and made by counsel for the respective parties, this case was submitted for decision.

On the 3rd day of July, 1973, this Court, by order, filed its decision in this case granting the relief prayed for in certain instances and denying such relief in others. This opinion is now filed for the purpose of stating the reasons for the holdings in the aforesaid order.

As clearly indicated by the above quoted language in the prayer of the petition, the question presented in this litigation is whether the action of the Governor in relation to the Budget Act, as enacted by the Legislature, is valid. If his action is valid then the Budget Act as altered by him shall be published as the lawful budget for the state for the 1973--1974 fiscal year. If, however, it be determined that the action of the Governor is invalid, wherein such invalidity Appears, the Budget Act, as enacted by the Legislature, shall be published as the lawful budget.

The Legislature, on April 17, 1973, passed Enrolled Committee Substitute for Senate Bill No. 51, sometimes referred to herein as the Budget Bill, providing the budget of the State of West Virginia for the fiscal year 1973--1974. Thereupon, it adjourned Sine die, after which the said bill was presented to the Governor for his consideration in accordance with the provisions of the Constitution of the State of West Virginia. On April 21, 1973 the Governor signed the Budget Bill as 'approved with reductions' and filed it in the office of the Secretary of State.

Due to the manner in which the Governor altered the Budget Bill, after its passage by the Legislature, the following issues are presented for resolution in this proceeding:

1. Is this Court disqualified to hear and determine this case?

2. Does the Governor have constitutional authority to disapprove or reduce items or parts of items contained in the Budget Bill enacted by the Legislature relating to the judiciary department?

3. Does the Governor have constitutional authority to disapprove or reduce items in the Budget Bill, after passage by the Legislature, relating to constitutional officers, in a manner and to such extent as would render their offices and functions inoperative?

4. Does the Governor have authority to alter budgetary acts upon receipt of the Budget Bill, after passage by the Legislature, by striking parts of items therein and in lieu thereof, inserting a lump sum figure equal to the sum of the parts of items stricken?

5. Does the Governor have the authority to reduce to zero funds provided in the budget for state aid to schools?

A preliminary issue to be decided is whether this Court is disqualified to hear and determine this case. This is prompted by the fact that certain budget items relating to this Court were reduced by the Governor. It is well settled that a judge, to be disqualified to hear and determine an action, must have a pecuniary or property interest in the matter to be decided. A remote or possible interest or merely an interest in a legal question will not warrant disqualification. 46 Am.Jur.2d, Judges, Sections 98 and 99; 48 C.J.S. Judges § 79. Cheuvront v. Horner, 62 W.Va. 476, 59 S.E. 964; City of Grafton v. Holt, Judge, 58 W.Va. 182, 52 S.E. 21.

The interest of the members of this Court in the outcome of this action is, at most, remote and indirect. The only budget items relating to this Court which were reduced by the Governor were those pertaining to equipment and to personal services for personnel of the state law library. In neither of these items do the judges have a pecuniary or property interest. The salaries of the judges are not affected by this litigation. The only other item involved is that designated 'criminal charges' contained in Account No. 111, Judicial-Auditor's Office. The funds in this account are for certain expenses incurred, not by this Court, but for the operation of the courts throughout the entire state. Certainly, the members of this Court have no pecuniary or property interest in the outcome of this case in relation to this item of the budget.

Even if the members of this Court have a disqualifying interest, which premise we reject, they would be required, of necessity, to hear and decide this case. It is clearly the majority view that the rule of disqualification must yield to the demands of necessity. In other words, our law provides for no other tribunal or for a substitution of judges to hear and decide the controversy, making it necessary that we so act. As succinctly reflected in 46 Am.Jur.2d, Judges, Section 89, a judge or a court must so act if his or its 'jurisdiction is exclusive and there is no legal provision for calling in a substitute, so that his refusal to act would destroy the only tribunal in which relief could be had and thus prevent a determination of the proceeding.' See Myers v. Circuit Court, 64 W.Va. 44...