State ex rel. Myers v. Wood

• Decision Date: 22 July 1970
• Docket Number: No. 12937,12937
• Parties: STATE ex rel. J. Howard MYERS v. The Honorable George W. WOOD, Judge, etc., et al.
• Court: West Virginia Supreme Court

Page 637

175 S.E.2d 637

154 W.Va. 431

STATE ex rel. J. Howard MYERS v. The Honorable George W. WOOD, Judge, etc., et al.

No. 12937.

Supreme Court of Appeals of West Virginia.

Submitted May 27, 1970.

Decided July 17, 1970.

Dissenting Opinion July 22, 1970.

Syllabus by the Court

1. There is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be conched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to ascertain if he has violated the offense provided and it may be couched in general language.

2. A specific section of a statute controls over a general section of the statute.

3. If former acts are repealed and not reenacted, it is improper to look back to the repealed acts that no longer exist in order to read something into the title of a new act.

4. Where the title to an act of the legislature repeals certain acts and amends the Code of West Virginia by adding thereto a new chapter 'All relating to the administration and financial affairs of the state and to the department of finance and administration, its powers and duties', it is not sufficient, under Article VI, section 30 of the Constitution of West Virginia, requiring the object of the act to be expressed in the title, to sustain a provision in the act providing for criminal offenses.

Jackson, Kelly, Holt & O'Farrell, Homer A. Holt, John L. McClaugherty, Forrest H. Roles, Charleston, for relator.

Leo Catsonis, Special Pros. Atty., Charleston, for respondents.

BERRY, Judge.

This is a proceeding in prohibition instituted under the original jurisdiction of this Court by the State of West Virginia, at the relation of J. Howard Myers, hereinafter referred to as petitioner, to prohibit the Honorable George W. Wood, Judge of the Intermediate Court of Kanawha County, West Virginia, and the Honorable Patrick Casey, Prosecuting Attorney of Kanawha County, West Virginia, from proceeding further to try J. Howard Myers on six indictments returned against him and others for conspiracy to affect the market and price and supply of commodities and printing obtained and to be obtained by the State of West Virginia, under the provisions of Article 3, Chapter 5A of the Code of West Virginia, as amended. A rule to show cause was issued against the respondents on March 9, 1970, returnable to May 5, 1970, which return date was continued until May 26, 1970, on motion of the respondents. The case was submitted for decision on arguments and briefs.

The indictments against the petitioner were returned by the grand jury of the Intermediate Court of Kanawha County at the September, 1969, Term of that Court. All six of the indictments involved in this proceeding charging the petitioner with a felony for conspiracy with others are drawn under section 38, Article 3, Chapter 5A of the Code of West Virginia, as amended. The respondents filed an answer to the petition, and the petitioner filed a general and special replication and demurrer to the respondents' answer.

The basic issue involved here is whether the respondents have jurisdiction to try the petitioner under the six indictments.

It is contended by the petitioner that the statute in question, (Code 5A--3--38, as amended), under which the indictments are drawn, is void, unenforceable and unconstitutional for the following reasons: (1) The title of the Act containing the section under which the indictments are drawn does not indicate that it contains criminal provisions and therefore violates Article VI, section 30 of the Constitution of West Virginia; (2) the statute, Code, 5A--3--38, as amended, under which the indictments are drawn, does not define the offense so as to plainly and fully inform the accused of the charge against him, in violation of the due process clauses of both the Federal and State Constitutions, which in the West Virginia Constitution is Article III, section 10, and also in violation of section 14 of Article III of the Constitution of West Virginia; (3) the statute is vague and indefinite and does not distinguish between criminal and innocent conduct and therefore violates the due process clauses of the two Constitutions; and (4) the statute is confusing in that section 36 of the Act provides for misdemeanors in connection with all violations of the Act, except for section 35 which has a different penalty from that provided for in section 36, and that section 38 provides for a felony penalty, all of which makes the statute confusing and indefinite and in violation of due process of law. Section 38 attempts to create a criminal conspiracy offense and reads as 'follows:

'It shall be unlawful for any person to jointly combine or collude or conspire in any way to affect the market, or price, or supply of commodities and printing obtained or to be obtained by the State under the provisions of this article, and upon violation thereof such person shall be guilty of a felony, and, upon conviction therefor, shall be confined in the penitentiary not less than one year nor more than five years, and be fined not exceeding one thousand dollars.'

Section 36 of the same Act is in the following language:

'A person who violates a provision of this article other than the provisions of section thirty-five ( § 5A--3--35) shall be guilty of a misdemeanor, and, upon conviction, shall be confined in jail not less than ten days no more than one year, or fined not less than ten nor more than five hundred dollars, or both, in the discretion of the court.'

It is contended that the above quoted two sections of the same Act are contradictory, and that since section 36 does not exempt section 38 as it does section 35, it cannot be clearly ascertained which class of crime and punishment is provided.

Article VI, section 30 of the Constitution of West Virginia provides that:

'No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. But if any object shall be embraced in an act which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed, and no law shall be revived, or amended, by reference to its title only; but the law revived, or the section amended, shall be inserted at large, in the new act. And no act of the legislature, except such as may be passed at the first session under this Onstitution, shall take effect until the expiration of ninety days after its passage, unless the legislature shall by a vote of two-thirds of the members elected to each house, taken by yeas and nays, otherwise direct.'

Therefore, the title of the Act in question must be measured against the above provisions of the Constitution to ascertain if the title encompasses the object contained in section 38 of the Act in question. The Act in question is Chapter 132, Acts of the Legislature, Regular Session, 1961, to which the title reads as follows:

'AN ACT to repeal articles five and eight, chapter five; section ten, article nine, chapter six; section ten-a, article one, chapter twenty-five; chapter twenty-five-a; and articles eight and eleven, chapter twenty-nine of the code of West Virginia, one thousand nine hundred thirty-one, as amended; and to amend said code by adding thereto a new chapter, designated chapter five-a, all relating to the administration and financial affairs of the state and to the department of finance and administration, its powers and duties.'

It will be noted that all former parts of the Code of West Virginia relating in any way to the matters contained in the new Chapter of the Code, designated as Chapter 5A by said Act, were repealed and not reenacted. Chapter 132 of the Acts of the Legislature, Regular Session, 1961, amended the Code by placing a new chapter designated as 5A and the general object of the new chapter was to provide a plan for the administration and fiscal affairs of the state. Article 3 pertains to the purchasing division which was charged with the responsibility of making purchases of goods and commodities for the use of the state. After the legislature set up the procedures, several sections were placed at the end of the Article in an attempt to prevent the defrauding of the state by means such as conflict of interest, false pretenses, delivery of inferior commodities, and included there the conspiracy section, 38, which might be termed the statute against 'rigging' prices and supplies or market of goods being purchased by the state.

It can be readily seen from the quoted sections relating to criminal offenses that the statute in question involved in this proceeding, Code, 5A--3--38, as amended, was ineptly and carelessly drawn. However, there is no satisfactory formula to decide if a statute is so vague as to violate the due process clauses of the State and Federal Constitutions. The basic requirements are that such a statute must be couched in such language so as to notify a potential offender of a criminal provision as to what he should avoid doing in order to not be guilty of the offense. 62 Harvard Law Review, page 76.

It would appear that the statute in question under which the indictments involved in this case were drawn is not too vague to fully and plainly inform or notify a person that he will be guilty of violating the provisions of the statute if he is a party to or combines with anyone to affect or 'rig' the price of any commodities obtained by the state, and, furthermore, if it is necessary to obtain any detailed information with regard to the offense charged a bill of particulars can be requested. Keister's Ex'rs v. Philips' Ex'x., 124 Va. 585, 98 S.E. 674; State v. Nuckols, 152 W.Va. 736, 166 S.E.2d 3.

All that is necessary to create a valid statutory offense is for the statute to define or specify the acts necessary to constitute the offense in order to enable a person to...