State ex rel. Heck's Discount Centers, Inc. v. Winters

• Decision Date: 10 September 1963
• Docket Number: No. 12255,12255
• Citation: 147 W.Va. 861,132 S.E.2d 374
• Court: West Virginia Supreme Court
• Parties: STATE et rel. HECK'S DISCOUNT CENTERS, INC., et al. v. E. E. WINTERS, Judge, etc., et al.

Page 374

132 S.E.2d 374

147 W.Va. 861

STATE et rel. HECK'S DISCOUNT CENTERS, INC., et al. v. E. E. WINTERS, Judge, etc., et al.

No. 12255.

Supreme Court of Appeals of West Virginia.

Submitted July 30, 1963.

Decided Sept. 10, 1963.

Syllabus by the Court.

1. A mere question of misjoinder of parties or of causes of action in a proceeding in prohibition, no possible prejudice appearing therefrom, will be treated as waived in the absence of objection by any party to such proceeding.

2. Prohibition is a proper proceeding to prohibit trial and sentence on an indictment pursuant to and in accordance with a penal statute which is alleged to be void because enacted after the expiration, by law and by passage of time, of a regular session of the legislature; and the Court will entertain such a proceeding for such purpose in advance of trial and without requiring the accused to await the rendition of an adverse final judgment to seek relief from such judgment by appellate proceedings.

3. A regular sixty-day session of the legislature, provided for by constitution, Article VI, Sections 18 and 22, unless extended pursuant to Constitution, Article VI, Section 22, expires by operation of law and by passage of time at midnight on the sixtieth day after the commencement thereof, subject to the provisions of Constitution, Article VI, Section 51, Sub-Section D, which authorize an extension of such a session by the governor for matters pertaining to the budget.

4. '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.' Capito v. Topping, Point 7 Syllabus, 65 W.Va. 587, 64 S.E. 845, 22 L.R.A., N.S., 1089.

5. 'A bill duly enrolled, authenticated, and approved is presumed to have been passed by the Legislature in conformity with the requirements of the Constitution, unless the contrary affirmatively appears from the journal of either house or other legislative records; and the failure of the Legislature to comply with constitutional requirements in its enactment, which can be considered only when disclosed by ambiguity, omission or conflict in such journal or other legislative records, must be clearly and convincingly established to overcome such presumption.' State v. Heston, Point 3 Syllabus, 137 W.Va. 375, 71 S.E.2d 481.

6. 'Courts will take judicial notice of the journals of both houses of the Legislature and other legislative records in determining whether constitutional provisions relating to the enactment of legislation have been complied with and observed.' State v. Heston, Point 1 Syllabus, 137 W.Va. 375, 71 S.E.2d 481.

7. Where the journal of either house of the legislature, through ambiguity, omission or contradiction, fails to disclose that constitutional requirements pertaining to the permissible duration of a regular session of the legislature have been complied with, extrinsic evidence may be considered by the courts in determining such question.

8. Where a regular unextended session of the legislature expires by passage of time and by operation of law, the legislature ceases to have the legislative powers conferred upon it by the Constitution; and a bill favorably voted upon thereafter by a majority of the members of the legislature cannot become a law.

9. A legislative enactment which is unconstitutional because not voted upon until after the expiration of an unextended regular session of the legislature is void and a nullity and cannot have the effect of repealing a preexisting law, either by implication or by express language.

Stanley E. Preiser, W. Dale Greene, Preiser, Weaver & Daugherty, Charleston, for relators.

Edward V. Lee, Huntington, for respondents.

H. D. Rollins, Charleston, amicus curiae for William Hamaday and J. Fleet Green, as members of W. Va. Retail Grocers, and W. Va. Assn. of Retail Grocers, unincorporated associations.

Dayton, Campbell & Love, Charles M. Love, Charles R. McElwee, Harry V. Campbell, Charleston, amicus curiae for W. Va. Retailers Assn. of Charleston, W. Va.

CALHOUN, Judge.

By this original proceeding in prohibition, the relators, Heck's Discount Centers, Inc., a corporation, and Pic-Way Shoes of West Virginia, a corporation, seek to prohibit the respondents, Honorable Ernest E. Winters, judge of the Court of Common Pleas of Cabell County, and Honorable Russell Dunbar, prosecuting attorney of that county, from proceeding to trial on certain indictments pending against the relators.

The basic question presented to this Court for decision is the constitutionality of Chapter 37, Acts of the Legislature, Regular Session, 1963, by which the legislature undertook to repeal Code, 1931, 61-8-17 and 18, as amended, and to enact in lieu thereof certain new provisions. The purpose of the new act was to amend and reenact the statutes of this state which inhibit certain acts and activities 'on a Sabbath day'. The amendatory act inhibits certain acts and activities 'on the first day of the week, commonly known and designated as Sunday,' and provides for more severe punishment.

The primary ground urged in support of the contention of unconstitutionality is the assertion that the amendatory act was passed after the legislative session had terminated by operation of law.

Shortly after the effective date of the 1963 act, Heck's Discount Centers, Inc., was charged in an indictment with having employed a certain person, described by name, to perform certain labor on a designated Sunday and by a separate indictment the same defendant was similarly indicted for thus having employed another person described by name. On the same date on which the two indictments were returned against Heck's Discount Centers, Inc., the same grand jury returned a similar indictment against Pic-Way Shoes of West Virginia, Inc. Promptly thereafter the relators, defendants in the indictments, appeared by counsel before the Court of Common Pleas of Cabell County, in which the indictments had been returned and were pending, and thereupon moved the court to quash and to dismiss the indictments on the ground of the alleged unconstitutionality of the 1963 act. The motions were overruled and the matters charged in the three indictments were set for trial on July 9, 1963. The prohibition proceeding was thereupon instituted in this Court.

We have considered the procedural question involving the property of the joining in this single prohibition proceeding of the cases arising upon the three indictments, involving two separate defendants and three separate alleged offenses. No objection has been raised by the respondents to the procedure in this respect, and, believing that no prejudice can result therefrom to any party in interest, the question of procedure will be treated as having been waived.

Code, 53-1-1, provides that the writ of prohibition shall lie as a matter of right in all cases of usurpation and abuse of power, 'when the inferior court has not jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.' In Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31, the constitutionality of a statute was challenged in an original proceeding in prohibition. The Court determined the constitutionality of the statute and also held in the fifth point of the syllabus that it was proper to entertain the proceeding and to issue the writ of prohibition 'in advance of the trial and without requiring the accused to await the rendition of an adverse final judgment to seek relief from such judgment by writ of error.' The Court holds, therefore, that prohibition is a proper proceeding in this case and at this stage thereof to determine whether the trial court is undertaking to proceed to try the relators on criminal charges under a statute which is void and a nullity because the legislature was not constitutionally in session when it undertook to enact such statute.

Constitution, Article VI, Section 18, provides in part: 'Regular sessions of the Legislature shall commence on the second Wednesday of January of each year * * *.' Accordingly, the legislature convened on January 9, 1963, for the regular session.

A portion of Article VI, Section 22 of the Constitution is as follows: 'The regular session of the Legislature * * * shall not exceed sixty days, * * *. All regular sessions may be extended by the concurrence of two-thirds of the members elected to each house.' A joint resolution for extension of the session, pursuant to that provision, was proposed but failed to pass.

A portion of Article VI, Section 51, Sub-Section D of the Constitution is as follows: 'If the 'Budget Bill' shall not have been finally acted upon by the Legislature three days before the expiration of its regular session, the governor may, and it shall be his duty to issue a proclamation extending the session for such further period as may, in his judgment, be necessary for the passage of such bill; but no other matter than such bill shall be considered during such extended session except a provision for the cost thereof.' The governor extended the session for three days for budgetary purposes.

In the light of the constitutional provisions referred to above, the legislature had no constitutional right, power or authority to pass, and was inhibited by the Constitution from passing any law after midnight of the sixtieth day of its session, except enactments relating to the budget.

By permission of the Court, counsel for two individual members of the West Virginia Retail Grocers and the West Virginia Association of Retail Grocers, both unincorporated associations, filed a brief as amici curiae which supports the relators' contention that the amendatory act is unconstitutional, but only on the asserted ground that it was passed after the sixty-day session of the legislature had ended by operation of law. By similar permission of the...