State ex rel. Downey v. Sims

• Decision Date: 18 May 1943
• Docket Number: 9491.
• Parties: STATE ex rel. DOWNEY v. SIMS, State Auditor.
• Court: West Virginia Supreme Court

26 S.E.2d 161

125 W.Va. 627

STATE ex rel. DOWNEY v. SIMS, State Auditor.

No. 9491.

Supreme Court of Appeals of West Virginia.

May 18, 1943

Dissenting Opinions May 18, and June 16, 1943.

Syllabus by the Court.

R D. Bailey, of Pineville, J. O. Henson, of Martinsburg, and L E. Given, of Charleston, for relator.

Ira J. Partlow, Asst. Atty. Gen., for respondent.

ROSE Judge.

On the 30th day of March, 1943, the Governor of the State, in vacation of the Senate, in regular form, appointed William W Downey to fill a vacancy then existing in the membership of the Board of Control. Downey, on the following day, qualified as such by taking the oath and giving the bond required by law, and thereupon entered on the performance of his duties as a member of the Board. In due course the Board by its proper officer made requisition on Edgar B. Sims, the Auditor of the State, for the sum of Thirteen Dollars and Forty-four Cents ($13.44), as the amount due to Downey as his salary for the one day in March which he had served, as based on the regular salary of the office, Five Thousand Dollars ($5,000) per year. This requisition was duly approved as required by law by the State Director of the Budget. The Auditor, however, declined and refused to honor the requisition by a letter, directed to the Board, in which he said:

"I have your requisition for the payment of compensation of Honorable W. W. Downey, Member of the State Board of Control, for March 31, 1943, being one day, in the sum of $13.44.

I have knowledge of the fact that Mr. Downey was appointed by the Governor as a member of the West Virginia Liquor Control Commission and that the appointment was rejected by the Senate at the 1943 session of the Legislature, and that Mr Downey was appointed as a member of the Board of Control after the adjournment of the 1943 Legislature.

Senate Bill No. 22, passed February 16, 1943, and effective from passage, provides: 'No person whose nomination for office has been rejected by the Senate *** shall *** be appointed, during the recess of the Senate in which his nomination was rejected, to any other office the nomination for which must be submitted to the Senate for confirmation.'

Of course you are advised that the appointment by the Governor of a member of the Board of Control must be submitted to the Senate for confirmation.

Mr. Downey's appointment is clearly within the ban of Senate Bill No. 22. I understand that there is a question as to the constitutionality of the bill. I do not undertake to pass on the question, but I am definitely of the opinion that the facts presented make out a case proper for judicial determination.

I am therefore declining to honor the requisition."

It is thus seen that the Auditor based his rejection of the requisition solely on the provisions of Senate Bill No. 22, and that he recognized that its constitutionality was questioned.

Thereupon Downey, as relator, filed in this Court a petition, duly verified, setting up these facts and charging that said Senate Bill No. 22 (Chapter 52, Acts of Legislature 1943, not yet published) is unconstitutional; and praying for a writ of mandamus requiring the Auditor to approve for payment the requisition for his salary. On this petition we issued a rule directing the Auditor to show cause, if any he could, why the writ should not be awarded. By way of return to this rule the Auditor filed a demurrer and answer to the petition, by which nothing in the petition was controverted except the charge that Senate Bill No. 22 is unconstitutional. The answer adds no fact to the record except the showing that the relator had, in fact, been appointed by the Governor and rejected by the Senate as a member of the Liquor Control Commission. There is, therefore, no issue whatever between the relator and the respondent except the legal question of whether Senate Bill No. 22 is constitutional. On this issue, and nothing else, the case has been briefed, argued and submitted. We, accordingly, accept the issue as made by the parties and shall consider and adjudicate this question alone.

Certain principles and rules of procedure in mandamus cases operate to guide us in our deliberations. Mandamus is a proper proceeding to enforce the payment of public salary or wages. State ex rel. Goshorn v. Johnson, 102 W.Va. 629, 135 S.E. 899; State ex rel. Sprague v. County Court, 93 W.Va. 481, 117 S.E. 135; State ex rel. Henson v. County Court, 93 W.Va. 316, 116 S.E. 704; State ex rel. Hall v. County Court, 82 W.Va. 564, 96 S.E. 966. A relator in mandamus for any purpose must show a clear legal right to the relief he seeks. Hall v. Stepp, 105 W.Va. 487, 143 S.E. 153; State ex rel. Jones v. Kuhn, 94 W.Va. 415, 120 S.E. 888; State ex rel. Miller v. City of Spencer, 93 W.Va. 516, 117 S.E. 226; State ex rel. Qualls et al. v. Board of Education, 92 W.Va. 647, 115 S.E. 726; State ex rel. Smith v. County Court, 78 W.Va. 168, 88 S.E. 662, 20 A.L.R. 1030. This showing, however, may be by a verified petition if its allegations are sufficient and not controverted. Doolittle v. County Court, 28 W.Va. 158; Fisher v. City of Charleston, 17 W.Va. 595; 35 Am.Jur., Mandamus, section 358, p. 100. It will be presumed that one appointed to office by the Governor is legally qualified therefor. Booten v. Pinson, 77 W.Va. 412, 89 S.E. 985, L.R.A.1917A, 1244; Swinburn v. Smith et al., 15 W.Va. 483. In showing his right to relief a relator in mandamus may challenge the constitutionality of a statute adverse to his claim. Bridges v. Shallcross, 6 W.Va. 562; Ex parte Stratton, 1 W.Va. 305; Welch v. Swasey, 214 U.S. 91, 29 S.Ct. 567, 53 L.Ed. 923; Von Hoffman v. City of Quincy, 4 Wall., U.S., 535, 18 L.Ed. 403. Except under special circumstances a prima facie showing of legal right to relief entitles the relator to the writ of mandamus. State ex rel. Looney v. Carpenter, 106 W.Va. 170, 145 S.E. 184; State ex rel. Hall v. County Court, 87 W.Va. 437, 105 S.E. 693; Griffith v. County Court, 80 W.Va. 410, 92 S.E. 676; Trunick v. Town of Northview, 80 W.Va. 9, 91 S.E. 1081; Kline v. McKelvey, 57 W.Va. 29, 49 S.E. 896. Indeed, there seems to be no disagreement between counsel that the petition is sufficient and that the relator is entitled to the peremptory writ he seeks if Senate Bill No. 22 is unconstitutional.

The section of the statute as it stood before the passage of Senate Bill No. 22 read as follows: "In case of a vacancy, during the recess of the senate, in any office which is filled by appointment by the governor and confirmation by the senate, the governor shall, by appointment, fill such vacancy until the next meeting of the senate, when the governor shall make a nomination for such office, and the person so nominated, when confirmed by the senate (a majority of all the senators elected concurring by yeas and nays), shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person shall be so appointed during the recess of the senate who has been nominated to and rejected by the senate for the same office. ***" Code 1931, 3-10-11.

Senate Bill No. 22 attempted to amend the last sentence quoted so as to read as follows: "No person whose nomination for office has been rejected by the senate shall be again nominated for the same office during the session in which his nomination was so rejected, unless at the request of the senate, nor shall he be appointed to the same office during the recess of the senate, nor shall he be appointed, during the recess of the senate in which his nomination was rejected, to any other office the nomination for which must be submitted to the senate for confirmation."

The constitutional provisions relating to the subject of gubernatorial appointments and senatorial consent to or rejection thereof are Sections 8 and 9 of Article VII, Constitution of West Virginia, which read:

"8. The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring by yeas and nays) appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and no such officers shall be appointed or elected by the Legislature.

9. In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall, by appointment, fill such vacancy, until the next meeting of the Senate, when he shall make a nomination for such office, and the person so nominated, when confirmed by the Senate, (a majority of all the Senators elected concurring by yeas an [and] nays) shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person, after being rejected by the Senate, shall be again nominated for the same office, during the same session, unless at the request of the Senate; nor shall such person be appointed to the same office during the recess of the Senate."

It will be seen at once, therefore, that the Constitution and the section of the statute involved, before the latter's attempted amendment, agree absolutely in forbidding only that one nominated by the Governor and rejected by the Senate shall not be appointed by the Governor in vacation of the Senate to the same office; while Senate Bill No. 22 attempts to broaden this prohibition so as to include not only the same office but all other offices, nominations to which must be consented to by the Senate. Can the effect of the Senate's rejection as expressly provided in the Constitution be thus enlarged by an Act of the Legislature? We think it cannot.

In Isaacs v. Ballot Commissioners, 122 W.Va. 703, 12 S.E.2d 510, 512, Judge Maxwell observed that: "The right...