State ex rel. Smith v. Kelly

• Decision Date: 26 March 1965
• Docket Number: No. 12442,12442
• Citation: 149 W.Va. 381,141 S.E.2d 142
• Parties: STATE of West Virginia ex rel. Hulett C. SMITH, Governor of the State of West Virginia, v. John H. KELLY, Treasurer of the State of West Virginia.
• Court: West Virginia Supreme Court

Page 142

141 S.E.2d 142

149 W.Va. 381

STATE of West Virginia ex rel. Hulett C. SMITH, Governor of the State of West Virginia, v. John H. KELLY, Treasurer of the State of West Virginia.

No. 12442.

Supreme Court of Appeals of West Virginia.

Submitted March 16, 1965.

Decided March 26, 1965.

Syllabus by the Court

1. Mandamus lies to require a public official to perform a nondiscretionary legal duty.

2. 'A court has a duty to attempt to find a proper basis for upholding the validity of a legislative enactment when its constitutionality is challenged in a legal proceeding pending before such court, but also a duty to declare such legislative enactment invalid when it is clearly unconstitutional.' Point 1 Syllabus, Nuckols v. Athey, W.Va., .

3. '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 submision of a proposed amendment to the voters of the State.' Point 1 Syllabus, State ex rel. Morgan et al. v. O'Brien, 134 W.Va. 1, 60 S.E.2d 722.

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 and applied in the interpretation of a procedural provision of the Constitution.' Point 4 Syllabus, State ex rel. Morgan et al. v. O'Brien, 134 W.Va. 1, 60 S.E.2d 722.

5. The self-imposed limitations on the power of the people of the state to amend the Constitution should not be so construed as to defeat the will of the people, when clearly and decisively expressed, on account of a failure to comply literally with the publication requirement contained in Constitution, Article XIV, Section 2, if such publication requirement is complied with substantially, in the absence of any indication of fraud, and in the absence of any indication that the voters were misled, misinformed or uninformed as a consequence of the failure of a literal compliance with such constitutional requirement.

6. In connection with the submission of the Better Roads Amendment to the Constitution to the voters for ratification or rejection at the General Election held on November 3, 1964, there was a substantial compliance with the requirement of the provision of Constitution, Article XIV, Section 2, that notice of a proposed constitutional amendment be published in some newspaper in every county in the state in which a newspaper is printed, at least three months before the general election at which a proposed amendment is submitted to the voters for ratification of rejection; the Better Roads Amendment was, therefore, legally ratified by the voters and is a valid amendment to the Constitution; and Enrolled Senate Bill No. 30, enacted by the legislature on February 16, 1965, to be effective from date of passage, is constitutional and valid.

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

J. Patrick Bower, Leo Catsonis, Asst. Attys. Gen., Charleston, for respondent.

CALHOUN, Judge:

In this proceeding in mandamus instituted pursuant to the original jurisdiction of this Court in cases of this nature, Honorable Hulett C. Smith Governor of the State of West Virginia, seeks to require Honorable John H. Kelly, State Treasurer, to perform certain acts required of him in his official capacity, in order to implement and to effectuate a certain amendment to the Constitution of West Virginia known as the 'Better Roads Amendment' and an act of the legislature enacted pursuant to the constitutional amendment. The constitutional amendment provides or the issuance and selling of state bonds not exceeding in the aggregate two hundred million dollars for the building and construction of state roads and highways, in amounts not to exceed twenty million dollars in any fiscal year.

The underlying and primary question presented for decision is whether the constitutional amendment is invalid because of a failure to comply with the requirement of Constitution, Article XIV, Section 2, that a proposed constitutional amendment be published, in some newspaper in every county of the state in which a newspaper is printed, at least three months before the general election at which the proposed amendment is submitted for ratification or rejection; and whether therefore, the enabling act of the legislature enacted pursuant to the constitutional provision is invalid. The ultimate question is whether bonds issued pursuant to the constitutional amendment and the enabling act of the legislature will be legal and valid when issued.

The facts pertinent to a decision of the case are not in controversy. The facts are fully set forth in the mandamus petition. The legal question is raised by a demurrer to the petition which asserts that the facts stated in the petition demonstrate the invalidity of the constitutional amendment and, consequently, the invalidity of the enabling act of the legislature. The matter was submitted to the Court for decision upon the pleadings referred to above and upon written briefs filed and oral arguments made before the Court in behalf of the respective parties.

By virtue of House Joint Resolution Number 10, adopted on March 7, 1963, two-thirds of the members of both houses of the legislature agreeing thereto, and Chapter 22, Acts of the Legislature, Regular Session, 1964, the constitutional amendment in question was submitted to the prople for ratification or rejection at the General Election whic was held on November 3, 1964. At the election so held, 455,294 votes were cast for and 116,438 votes were cast against the proposed amendment; and, accordingly, the governor issued a proclamation declaring that the proposed amendment was ratified.

Pursuant to the ratification of the proposed amendment, the legislature, on February 16, 1965, passed Enrolled Senate Bill No. 30, the validity of which is in question in this case. The act was made effective from the date of its passage and was duly approved by the governor. Among other provisions the act authorized the issuance and sale by the governor of bonds of the State of West Virginia in an amount not exceeding twenty million dollars during the fiscal year ending June 30, 1965, and in an amount not exceeding twenty million dollars during the fiscal year ending June 30, 1966, for the purpose of raising funds for the building and construction of free state roads and highways pursuant to the Better Roads Amendment.

Pursuant to provisions of Enrolled Senate Bill No. 30, Governor Smith, by letter dated February 25, 1965, offered for sale to the State Sinking Fund Commission bonds in the aggregate amount of one hundred thousand dollars. By an order dated March 4, 1965, the State Sinking Fund Commission ordered the purchase of such bonds in the amount of one hundred thousand dollars. Pursuant to that purchase, the governor prepared an interim certificate in the amount of one hundred thousand dollars to be issued to the State Sinking Fund Commission, to be exchanged for state road bonds when such bonds are prepared, as authorized by Section 12 of Enrolled Senate Bill No. 30; and, by letter dated March 4, 1965, the governor forwarded the interim certificate to the respondent requesting that he affix his signature thereto in his official capacity as state treasurer. The governor's letter further authorized and directed the respondent immediately to take all steps required of him in order to effectuate the issuance of bonds in the amount of twenty million dollars for public highway purposes. Enrolled Senate Bill No. 30 imposes various duties upon the state treasurer in order to implement and effectuate the provisions of the constitutional amendment and the enabling act of the legislature.

By letter dated March 5, 1965, directed to the governor, the respondent state treasurer respectfully declined to comply with he governor's request, and any other similar request in relation to any other certificates or bonds to be issued pursuant to the constitutional amendment and the enabling act of the legislature 'until the constitutionality of said amendment and statute has been settled by a court of competent jurisdiction.'

Constitution, Article XIV, Section 2, provides that the legislature, in proposing a constitutional amendment, shall 'cause the same to be published' in the manner and for the period of time previously stated in this opinion. Section 6 of Chapter 22, Acts of the Legislature, Regular Session, 1964, provides that the 'governor shall cause the said proposed amendment * * * to be published one time at least three months before such election in some newspaper in every county in which a newspaper is printed, * * *.'

Three months prior to the General Election held on November 3, 1964, was August 3, 1964. On August 1, 1964, Honorable William Wallace Barron, who was then governor of this state, issued his proclamation directing that the Better Roads Amendment be submitted to the voters for ratification or rejection at the General Election to be held on November 3, 1964 Previously in this opinion we have stated that the proposed amendment was ratified by a large majority of votes cast on the question.

It is clear that mandamus is a proper proceeding by which to require a public official to perform a nondiscretionary legal duty. State ex rel. Wheeling Downs Racing Association v. Perry et al., W.Va., 132 S.E.2d 922, pt. 1 syl., in which many of the more recent cases are listed. See also State ex rel. Yahn Electric Co. v. Baer et al., W.Va., 135 S.E.2d 687. Mandamus, therefore, is a proper proceeding by which to compel the state treasurer to perform the nondiscretionary duties required of him as state treasurer and specifically by Enrolled Senate...