State ex rel. Morgan v. O'Brien
| Decision Date | 27 October 1948 |
| Docket Number | Case No. 10110. |
| Parties | STATE ex rel. MORGAN et al. v. O'BRIEN, Secretary of State. |
| Court | West Virginia Supreme Court |
Submitted Oct. 26 1948.
Majority Opinion Filed Dec. 18, 1948. Dissenting Opinion Aug. 7, 1950.
Syllabus by the Court
1. Though the provision of Section 2, Article XIV of the West Virginia Constitution, requiring a three months' publication of a proposed amendment to the Constitution, is mandatory, such provision is procedural and a substantial compliance therewith is sufficient to base a submission of a proposed amendment to the voters of the State.
2. Where no publication is had of the Governor's proclamation of a proposed constitutional amendment in one county, as a result of the failure of the management of a newspaper published in that county to insert the proclamation in accordance with the Governor's written request, such lack of publication, in the absence of fraud or showing that the electorate in that county had been misled by the lack of publication, will not serve to invalidate the submission of the proposed amendment.
3. Where the question of substantial compliance with the publication provision of Section 2, Article XIV of the State Constitution is raised prior to the vote on the proposed Constitutional amendment, the fact that the proposed amendment has been given widespread publicity throughout the State, through political endorsement and debate, by radio announcements and addresses; and newspaper articles and editorials, will be considered by this Court, in a proceeding in mandamus brought for the purpose of attacking the validity of the proposed submission to vote on the amendment on the ground that the constitutional publication provision has not been complied with, only for the purpose of determining whether the alleged deficiency of publication served to defraud or mislead the electorate in the impending vote on the proposed amendment.
4. Though it is a cardinal rule of constitutional construction to give effect to the intent of the framers of the Constitution and the people who adopted it, new and changing conditions not existing at the time the Constitution was adopted should be looked to an applied in the interpretation of a procedural provision of the Constitution.
5. Where, in a proceeding in mandamus, against the Secretary of State, an attack is made on a proposed submission to vote on a proposed constitutional amendment on the ground that through inadvertence the publication required by Section 2, Article XIV of the Constitution was not had until about sixty days before the election on the amendment, and it does not appear that the electorate has been defrauded or misled by the delay in publication, the sixty-day publication is such a substantial compliance with the constitutional provision in question as to base a valid submission of the proposed amendment to the electorate.
Charles C. Wise, Ernest K. James, Charleston, for relators.
Ira J. Partlow Attorney General, John C. Vance, Asst. Atty. Gen., for respondent.
RILEY, President.
On October 21, 1948, at a regular term of this Court, the State of West Virginia ex rel. C. R. Morgan, George L. Coyle, George C. Schmidt and George W. Bright, citizens and taxpayers, filed their petition, seeking a writ of mandamus to command D. Pitt O'Brien, Secretary of State of the State of West Virginia, to revoke his certification for submission to the electorate of the State at the general election to be held on November 2, 1948, of a proposed amendment to the Constitution relating to a fifty million dollar bond issue for secondary road improvements. And, on October 27, 1948, this Court, after a hearing on the rule previously issued, entered an order denying the writ prayed for.
The relators' petition states, among other things, that the Legislature, on March 8, 1947, duly and regularly adopted Senate Joint Resolution No. 5, Acts of the Legislature, 1947, p. 727, by a vote of two-thirds of all the members elected to each house, agreeing to the submission of the proposed amendment authorizing the issuance of State bonds not exceeding fifty million dollars for secondary road purposes; and on the last-mentioned date, duly and regularly passed an enabling act (Acts of the Legislature, 1947, Chapter 143), which was approved by the Governor, providing for the submission of the proposed amendment to the voters. The petition further alleges that Section 6 of the enabling act directs that the Governor shall cause the proposed amendment to be published in some newspaper in every county in the State, in which a newspaper is printed, at least three months before the election, at which the proposed amendment is to be voted on; that Section 2 of Article XIV of the Constitution of West Virginia requires that a proposed amendment be published in some newspaper in every county in which a newspaper is printed, at least three months before such election; that notwithstanding the legislative directive and the constitutional requirement, the Governor did not cause the proposed amendment to be published in every county in which an newspaper is printed at least three months before the general election to be held on November 2, 1948, as he was required to do; and that, in fact, no publication of any kind was made until on or about August, 30, 1948, about four weeks after the date on or before which the publication was required by law.
Respondent filed an answer admitting all the facts set forth in the petition, and setting forth what is purported to be a detailed statement of the actual facts concerning the proposed amendment and its publication, which answer denied the conclusion drawn from the facts as set forth in the petition to the effect that, because of the failure of the Governor to publish the proposed amendment to the Constitution, as required by Section 2, Article XIV of the Constitution, and the implementing statute, Chapter 143, Acts of the Legislature, 1947, the delayed publication will not avail for a valid submission of the proposed amendment to the vote of the electorate of the State of West Virginia.
The answer alleges that without any intent or design, but purely through inadvertence, the Governor failed to comply with the provisions in respect to the time of publication; that on August 27, 1948, the Governor caused to be forwarded by registered mail, return receipt requested, to one newspaper printed and published in each county of the State, his proclamation, incorporated in the answer, to the effect that the proposed amendment would be submitted to the voters of West Virginia, at the general election to be held on November 2, 1948, with the request that it be published. This proclamation sets forth that the question of the ratification or rejection of the amendment is proposed in accordance with the provisions of Section 2, Article XIV of the Constitution. The answer further alleges that one newspaper publication was had in each of the following counties on the dates specified: in Kanawha and Marshall, on August 30, 1948; in Cabell, Marion, Mingo, McDowell, Tucker, and Wood, on August 31, 1948; in Fayette, Hampshire, Hardy, Mercer and Webster on September 1, 1948; in Barbour, Braxton, Brooke, Calhoun, Dlay, Doddridge, Gilmer, Grant, Greenbrier, Hancock, Harrison, Jackson, Jefferson, Lincoln, Mason, Monongalia, Monroe, Nicholas, Ohio, Pendleton, Pleasements, Pocahontas, Preston, Raleigh, Roane, Tyler and Wetzel, on September 2, 1948; in Berkeley, Lewis, Logan, Morgan, Putnam, Randolph, Ritchie, Upshur, Wayne, Wirt and Wyoming, on September 3, 1948; in Taylor, on September 6, 1948; in Mineral, on September 7, 1948; in Boone, on September 16, 1948; and a second publication, in Lincoln, on September 9, 1948, constituting publication in fifty-four of the fifty-five counties of the State.
The answer further alleges that on August 27, 1948, the Governor forwarded by registered mail, return receipt requested, to the then editor of 'The Leader', a newspaper published in Summers County, the proclamation, as in the cases of the other counties, and thereafter, to-wit, on August 28, 1948, received a return receipt postmarked at Hinton, the same being signed Henry E. Kinney, the then editor of the paper, by L. T. Anderson, designated as addressee's agent; that, so far as respondent is informed and believes, Anderson delivered the registered letter to Kinney on August 28, 1948, but shortly thereafter Kiney ceased to be the editor of the paper and left the State for the City of New York; and that publication of the proclamation thereafter failed to receive the attention of anyone connected with that newspaper and publication was not had at any time in Summers County.
The answer further alleges that there was a substantial compliance with the constitutional and statutory provisions relating to publication; and that the whole object, intent and purpose of the required publication is to give notice of the intent to submit a proposed amendment to the Constitution to the voters of the State so that they may have time to consider the same and determine in their own minds whether they would adopt or reject the proposed amendment.
The answer further alleges that, in addition to the newspaper publicity given by the publication of the Governor's proclamation, the proposed bond issue, embraced in the amendment, received widespread publicity in the State from political and newspaper sources; that it was indorsed by both the Republican and Democratic parties at their respective state conventions held on August 14, 1948, the happenings of which conventions received wide newspaper publicity; that the Republican and Democratic candidates for governor and other political speakers discussed the proposed ...
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