State ex rel. Metz v. Bailey

• Decision Date: 06 February 1968
• Docket Number: No. 12707,12707
• Citation: 152 W.Va. 53,159 S.E.2d 673
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Kenneth W. METZ v. Robert D. BAILEY, as Secretary of State of State of West Virginia.

Page 673

159 S.E.2d 673

152 W.Va. 53

STATE ex rel. Kenneth W. METZ v. Robert D. BAILEY, as Secretary of State of State of West Virginia.

No. 12707.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 10, 1968.

Decided Feb. 6, 1968.

Syllabus by the Court

1. Inasmuch as the Constitution of West Virginia is a restriction of power rather than a grant of power, as is the federal Constitution, the Legislature may enact any measure not interdicted by that organic law or the Constitution of the United States.

2. When the constitutionality of a statute is challenged, every reasonable construction must be resorted to by the courts to sustain its validity and any reasonable doubt must be resolved in favor of the constitutionality of the legislative act in question.

3. 'Courts are not concerned with questions relating to the policy of a legislative enactment. These questions are solely for thelegislature.' Point 1, Syllabus, State Road Commission (of West Virginia) v County Court of Kanawha County, 112 W.Va. 98 (163 S.E. 815).

4. 'In considering constitutional restraint, the negation of legislative power must be manifest beyond reasonable doubt.' Point 3, Syllabus, State Road Commission (of West Virginia) v. County Court of Kanawha County, 112 W.Va. 98 (163 S.E. 815).

Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for relator.

C. Donald Robertson, Atty. Gen., Thomas B. Yost, Asst. Atty. Gen., Charleston, for respondent.

CAPLAN, Judge.

In this original proceeding in mandamus the relator, Kenneth W. Metz, seeks a writ to compel Honorable Robert D. Bailey, Secretary of State of the State of West Virginia, to accept and file the certificate of the relator as a candidate for the nomination to the office of judge of the thirty-first judicial circuit. A rule was granted by this Court returnable January 10, 1968, and the case was submitted for decision upon the petition, the answer filed by the respondent and upon the brief of the relator. No brief was filed by the respondent nor was there any oral argument made on behalf of either of the parties.

It is alleged in the petition that the relator, Kenneth W. Metz, advised the respondent that he intended, when permitted by statute, to file a certificate in the respondent's office as a Democratic candidate for the nomination to the office of judge of the thirty-first judicial circuit at the primary election to be held in May 1968. It is further alleged that the respondent, the Secretary of State, by letter dated September 11, 1967, advised the relator that he would not accept nor file a certificate from the relator or from any other person who sought the nomination to the office of judge of the thirty-first judicial circuit at the primary election to be held in May 1968.

The reason assigned by the respondent for such refusal is reflected by the last paragraph of his letter, a copy of which is attached to the petition as 'Exhibit B', which reads as follows:

'Please be advised that the Thirty-first Judicial Circuit was created by an Act of the 1967 Legislature and consists of the same counties as the Twenty-third Judicial Circuit, being Jefferson, Berkeley and Morgan. I, therefore, will not accept a certificate from you or anyone else seeking nomination to this Judgeship as the Act creating this Circuit is unconstitutional.'

No reason is stated by the respondent in support of his contention that Chapter 40, Acts of the Legislature, Regular Session, 1967, (Code, 1931, 51--2--1, as amended) is unconstitutional other than that the same three counties, Berkeley, Jefferson and Morgan, also constitute the twenty-third judicial circuit.

The sole question to be answered in this proceeding is whether Chapter 40, Acts of the Legislature, Regular Session, 1967, is constitutional. The subject Act, where pertinent, now provides: '* * * the counties of Berkeley, Jefferson and Morgan shall constitute the twenty-third circuit; * * * and the counties of Berkeley, Jefferson and Morgan shall constitute the thirty-first circuit.' Thus, it is readily discernible that the thirty-first circuit is superimposed upon the identical territory which constitutes the twenty-third circuit.

On January 23, 1968, this Court, by order, held that Chapter 40, Acts of the Legislature, Regular Session, 1967, is constitutional. This opinion is now filed for the purpose of stating the reasons for the decision embodied in the aforesaid order.

The circuit court is a constitutional court, as noted in Article VIII, Section 1 of the Constitution of West Virginia, wherein it is provided that 'The judicial power of the State shall be vested in a supreme court of appeals, in circuit courts and judges thereof, * * *.' The first provision in that Article relating to circuit courts is Section 10. There it is provided that the state shall be divided into thirteen circuits. This section, however, has been amended many times and the number of circuits has been increased to the present number. The increase in the number of circuits is provided for in our Constitution, Article VIII, Section 14, wherein it is stated that the legislature may rearrange the circuits at any session, next preceding any general election of the judges of said circuits and that after 1888, may increase or diminish the number of circuits.

After providing that the first circuit shall have two judges, Article VIII, Section 10 provides: '* * * and for each of the other circuits one judge shall be elected by the voters thereof. * * *' Section 11 of the same article requires that a circuit court shall be held in every county in the State at least three times a year. An examination of the provisions of the Constitution relating to the judicial department of our government clearly reveals that, other than the first judicial circuit, all circuits may have only one judge. However, that solemn document nowhere inhibits the superimposition of one judicial circuit upon another.

It has been well established by the decisions of this Court that our Constitution stitution is a restriction of power rather than a grant of power as is the Federal Constitution. Therefore, the Legislature may enact any measure which is not specifically prohibited by the State or Federal Constitution. Robertson v. Hatcher, 148 W.Va. 239, 135 S.E.2d 675. In Harbert v. County Court of Harrison County, 129 W.Va. 54, 39 S.E.2d 177, the Court said '* * * that the general powers of the Legislature are almost plenary and that it can legislate on every subject not interdicted by the Constitution itself. The test of legislative power in this State is constitutional restriction, and what the people have not said in the organic law their representatives shall not do, they may do.' See State ex rel. County Court of Marion County v. Demus, 148 W.Va. 398, 135 S.E.2d 352; State ex rel. Cashman v. Sims, 130 W.Va. 430, 43 S.E.2d 805, 172 A.L.R. 1389; 4 M.J. Constitutional Law, Section 31 and cases cited in footnotes thereto.

In relation to the authority of the Legislature to act in certain areas, this Court, in State Road Commission of West Virginia v. County Court of Kanawha County, 112 W.Va. 98, 163 S.E. 815, said: 'Whether the Legislature has a certain power (not directly withdrawn) is not to be decided simply by marshalling the reasons for and against and then determining on which side is the weight of argument. The negation of the power must be manifest Beyond reasonable doubt.' See also State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 s.E.2d 351; Farley v. Graney, State Road Commissioner, 146 W.Va. 22, 119 S.E.2d 833, which cases plainly hold that in considering constitutional restraint, the negation of power must appear beyond a reasonable doubt.

There is always a presumption in favor of the constitutionality of an act of the Legislature. Therefore, every reasonable construction must be resorted to by a court in order to sustain constitutionality and any doubt must be resolved in favor thereof. State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 S.E.2d 351; State ex rel. Slatton v. Boles, 147 W.Va. 674, 130 S.E.2d 192; Tweel v. West Virginia Racing Commission, 138 W.Va. 531, 76 S.E.2d 874.

In relation to the question presented in the instant case it may be asserted that certain problems could result from the superimposition of one circuit upon another. Statutes referring to circuit clerks and to the operation of the courts in the counties may present obstacles which may be worrisome. However, courts are not concerned with questions relating to the policy of a legislative enactment. Whether an act is wise or unwise is not for the consideration of a court. State Road Commission of West Virginia v. County Court of Kanawha County, 112 W.Va. 98, 163 S.E. 815; State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 S.E.2d 351. Our sole concern is the constitutionality of the legislative act.

Considering the principles herein related and noting that no inhibition exists in our Constitution which would preclude the enactment of Chapter 40, Acts of the Legislature, Regular Session, 1967, we are of the opinion that such act is constitutional. Therefore, the writ of mandamus as prayed for is awarded.

Writ awarded.

CALHOUN, Judge (dissenting).

Being of the opinion that the statute in question in this case is clearly unconstitutional, I respectfully dissent.

An unusual and unfortunate circumstance in this case is that, contrary to a uniform practice from which I have never heretofore noted a deviation, the attorney general's office made no appearance in behalf of the respondent, a duly elected state official, in this proceeding instituted to test the constitutionality of an act of the legislature. Counsel for the petitioner appeared personally before the Court on the date the case was set for argument but he waived his right to oral argument and submitted the case for decision on his written brief. The question presented...