State ex rel. Smith v. Gore, 12492

Citation150 W.Va. 71,143 S.E.2d 791
Decision Date07 September 1965
Docket NumberNo. 12492,12492
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. Hulett C. SMITH, Governor, State of West Virginia v. Truman E. GORE, Commissioner, Finance and Administration, State of West Virginia and Alan Marples, E. D. Knight, Jr., John A. Planfetti, Mrs. Ellen F. Hartman, Daniel D. Dahill and Keith L. Smith, Intervenors.

Syllabus by the Court

1. The provisions of Article II, Section 4 of the Constitution of West Virginia, requiring equality of numbers of those entitled thereto in all apportionments of representation, pertain to and include a constitutional convention.

2. An act of the legislature which purports to apportion delegates to a constitutional convention without providing for equality of numbers of those entitled to representation is violative of Article II, Section 4 of the Constitution of West Virginia and is therefore unconstitutional.

3. Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.

C. Donald Robertson, Atty. Gen., H. Clare Hess, Thomas B. Yost, Asst. Attys. Gen., Charleston, for relator.

Claude A. Joyce, J. Patrick Bower, H. Cort Doughty, Jr., Asst. Attys. Gen., Paul J. Kaufman, James B. McIntyre, Charleston, for respondent.

CAPLAN, Judge.

In this original proceeding in mandamus, instituted in this Court on July 13, 1965, the petitioner, Hulett C. Smith, Governor of the State of West Virginia, seeks a writ to compel the respondent, Truman E. Gore, Commissioner of Finance and Administration, to affix his signature to certain contracts requiring the expenditure of state funds which have been entered into by and between the petitioner and certain publishers of newspapers throughout the state. Upon application of the petitioner this Court granted a rule returnable July 20, 1965, at which time the respondent filed his answer to the petition.

On July 19, 1965, certain citizens and taxpayers of this state, namely, Alan Marples and E. D. Knight, Jr., of Greenbrier County, John A. Pianfetti and Mrs. Ellen F. Hartman of Kanawha County, Daniel D. Dahill of Logan County and Keith L. Smith of Lincoln County, filed a petition requesting permission to intervene in this action as parties defendant. The prayer of this petition was granted and the intervenors filed their answer to the petition. On the return day this proceeding was submitted for decision upon the aforesaid pleadings and upon briefs and arguments of counsel for all parties.

This proceeding raises the question of the constitutionality of Chapter 18, Acts of the Legislature, Regular Session, 1965, hereinafter sometimes referred to as the Act. Enacted on March 13, 1965, this Act provides for the calling of a convention having the authority to alter the state constitution. Article 2, Section 1 thereof provides for an election throughout the state for the purpose of taking the sense of the voters on the question of calling a convention having the authority to alter the constitution of the state. Section 2 of said Article 2 requires the Governor to cause a notice of such election to be published one time at least three months before the election in some newspaper of general circulation published in each county of the state. It is further provided therein that the price for publishing such notice shall be agreed upon in advance, in writing, and shall be paid out of the Governor's contingent fund.

Pursuant to those provisions the petitioner caused to be prepared and transmitted to a newspaper of general circulation in each county of this state a solicitation for a bid on the required publication. On the reverse side thereof is printed the response of the publisher wherein the offers to publish the notice at a price thereon designated. Also included on the reverse side are spaces for the approval of the offer by the Governor, the Director of Purchases, the Attorney General and the Commissioner of Finance and Administration. It is undisputed that these solicitations, together with the publishers' responses and approval, as above noted, constitute contracts for the publication of said notices. Several of these contracts were returned with the executed proposals of the publishers and were subsequently approved by the petitioner and the Director of Purchases.

On July 12, 1965, the petitioner forwarded these contracts to the respondent and requested that he affix his signature thereto as required by Code, 1931, 5A-3-15, as amended. By letter of the same date, addressed to the petitioner, the respondent refused to sign the contracts, stating, as the reason for his refusal, that he believed the proposed constitutional convention, as provided for in the Act, to be unconstitutionally apportioned and that such expenditure of state funds would therefore be improper. This action was then instituted to compel the respondent to comply with the provisions of Code, 1931, 5A-3-15, as amended.

It is the position of the petitioner that nothing in our constitution or laws requires equal apportionment of delegates to a constitutional convention and that the Act is therefore constitutional. The respondent and intervenors, on the other hand, contend that equal apportionment of such delegates is an absolute requirement of our constitution; that the proposed convention is unequally apportioned; and that the Act is therefore unconstitutional.

On July 27, 1965, this Court entered an order in this proceeding holding Chapter 18, Acts of the Legislature, Regular Session, 1965, unconstitutional and that the petitioner was not entitled to the writ of mandamus prayed for in his petition. This opinion is now filed for the purpose of stating the reasons for the holdings in the aforesaid order.

It is undisputed that mandamus is the proper remedy in this proceeding. The only question for decision, therefore, is whether it is necessary, under our constitution and laws, to provide for equal representation in the election of delegates to a constitutional convention.

The provision of the Act which gives rise to this controversy is Article 3, Section 3 thereof, entitled 'Number of Members to be Elected; Apportionment.' That section provides that the constitutional convention shall consist of one hundred six members and purports to apportion such members among the several counties. Thereunder each county in the state is entitled to at least one delegate to the convention, with the more populous counties, in most instances, being allocated a greater number. It is readily conceded by the petitioner that Article 3, Section 3 of the Act does not provide equal representation of the general populace to the convention, his position being, as heretofore noted, that equal representation to a constitutional convention is not required. This concession makes it unnecessary to cite examples of the many instances of inequality in the purported apportionment of delegates to such convention.

The sole issue presented for decision in this proceeding is resolved by the consideration and application of Article II, Section 4 of the Constitution of West Virginia, which reads as follows: 'Every citizen shall be entitled to equal representation in the government, and, in all apportionments of representation, equality of numbers of those entitled thereto, shall as far as practicable, be preserved.'

That constitutional provision is clear and unambiguous in its meaning. It provides that every citizen shall have equal representation in government. However, the framers of this provision did not stop there. They went on to say 'and, in all apportionments of representation, equality of numbers * * *, shall * * * be preserved.' We do not see the last quoted portion, as suggested by the petitioner, to be a mere modification of or subordinate to the first clause so that it would apply only to apportionments of representation in government. Rather, it is an independent clause which clearly requires equality in all apportionments of representation whether such apportionments of representation be in a governmental body, in its strict sense, or otherwise.

The petitioner contends that equal representation is required only in government; that government consists of the legislative, executive and judicial branches; and that since a constitutional convention does not fit into any of those categories, equal representation...

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