State ex rel. Taxpayers Protective Ass'n of Raleigh County v. Hanks

• Decision Date: 18 December 1973
• Docket Number: No. 13407,13407
• Citation: 157 W.Va. 350,201 S.E.2d 304
• Parties: STATE of West Virginia ex rel. TAXPAYERS PROTECTIVE ASSOCIATION OF RELEIGH COUNTY v. C. Harold HANKS, Clerk of the Circuit and Intermediate Courts of Raleigh County.
• Court: West Virginia Supreme Court

Page 304

201 S.E.2d 304

157 W.Va. 350

STATE of West Virginia ex rel. TAXPAYERS PROTECTIVE ASSOCIATION OF RELEIGH COUNTY v. C. Harold HANKS, Clerk of the Circuit and Intermediate Courts of Raleigh County.

No. 13407.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 9, 1973.

Decided Dec. 18, 1973.

Syllabus by the Court

1. A basic purpose of Article VI, Section 39 of the Constitution of West Virginia is to preserve uniformity and consistency in the statutory enactments of this State.

2. A statute is general when it operates uniformly on all persons and things of a class and such classification is natural, reasonable and appropriate to the purpose sought to be accomplished.

3. A statute which establishes a classification by population is not violative of the constitutional provision requiring such matters to be provided for by general law, where the statute operates uniformly on all persons and things of a class and the classification according to population is natural, reasonable and appropriate to the purpose of the statute.

4. A classification within a statute, which excludes without any reasonable basis certain counties which would otherwise be subject to a general law on the same matter, is arbitrary and violative of Article VI, Section 39 of the Constitution of West Virginia, forbidding special laws.

C. M. Elmore, pro se.

C. Harold Hanks, pro se.

SPROUSE, Justice:

This is a proceeding in mandamus seeking an order requiring the respondent, the Clerk of the Circuit and Intermediate Courts of Raleigh County, to open his office to the public on Monday through Saturday of each week.

The relator, Taxpayers Protective Association of Raleigh County, is a legally created unincorporated association engaged in activities concerning public affairs in Raleigh County, West Virginia. The respondent, C. Harold Hanks, is the Clerk of the Circuit and Intermediate Courts of Raleigh County, West Virginia.

The legislature of West Virginia enacted a law in the 1971 Regular Session requiring offices in the courthouses throughout the State to remain open to the public on Monday through Saturday during hours prescribed by the county court. Chapter 7, Article 3, Section 2, Code, 1931, as amended by Chapter 25, Acts of the Legislature, Regular Session, 1971. The legislation provided that courthouses in counties having a population in excess of 100,000 may, with the consent of the county court, be closed on Saturdays. Cabell County and Kanawha County are the only two counties in the State with populations over 100,000; fifty-three counties have less.

At a regular meeting of the Raleigh County Court on Tuesday, August 28, 1973, the county court entered an order requiring the offices of the courthouse to be open on Saturday mornings. The respondent advised the county court during that meeting that he would not comply with the order and has refused thereafter to open the circuit clerk's office on Saturday mornings.

There is no factual conflict. The petitioner avers the sequence of events as set out above and the respondent admits them. The respondent maintains, however, that the portion of Chapter 7, Article 3, Section 2 of the West Virginia Code, 1931, as amended, requiring county courthouses to be open on Saturday, but excepting Cabell and Kanawha counties, is unconstitutional as violative of Article VI, Section 39 of the Constitution of West Virginia (hereinafter referred to as Article VI, Section 39) and of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States.

Article VI, Section 39 enumerates specific grounds upon which the Legislature shall not pass local or special laws, including that of '(r)egulating or changing county or district affairs'; and in addition concludes as follows: 'The legislature shall provide, by general laws, for the foregoing and all other cases for which provision can be so made; and in no case shall a special act be passed, where a general law would be proper, and can be made applicable to the case, * * *.'

This Court has said the purpose of Article VI, Section 39 is to preserve uniformity and consistency in statutory enactments. Brozka v. County Court of Brooke County, 111 W.Va. 191, 160 S.E. 914. The Supreme Court of Virginia interpreting a similar provision in the Virginia Constitution said that these limitations by constitutional law had their genesis in a purpose to remedy the mischief of intentionally arbitrary and exclusive legislation. Martin's Ex'rs. v. Commonwealth, 126 Va. 603, 102 S.E. 77, reh. den., 126 Va. 603, 102 S.E. 724.

The framers of our first Constitution were concerned with the possibility of legislatures enacting improper special laws. A. D. Soper, President of the First Constitutional Convention, said in remarks before the Convention:

'Your attention, however, is called to the fact, that in all practicable cases, the legislature is required to act by general laws. This obviates, to a great extent, the necessity for special legislation, and discourages that private solicitation of the members, the tendency of which is to introduce corruption and bribery as elements of legislation. * * * The confinement of the action of the legislature to general laws in reference to those practical matters which concern every citizen and every section of the State, gives assurance that, if not at first, yet speedily, those laws will receive that form which is most in accordance with the united wisdom and experience of the whole population. This illustrates the true theory and object of representative government.' Volume III, Debates and Proceedings of the First Constitutional Convention of West Virginia, 831--33.

The decisions interpreting the language of Article VI, Section 39, that 'in no case shall a special act be passed, where a general law would be proper, * * *' have not been uniform in West Virginia. The early prevailing opinions of our Court gave to the Legislature the unquestioned prerogative to enact special or general laws--holding this to be an area of legislative discretion not reviewable by a court despite the provisions of Article VI, Section 39. Casto v. Upshur County High School Board, 94 W.Va. 513, 119 S.E. 470; Herold v. McQueen, 71 W.Va. 43, 75 S.E. 313. Later this Court's position evolved into our rule that a special act is not void under Article VI, Section 39 unless it clearly appears that a general law would have accomplished the legislative purpose as well. Truax-Traer Coal Company v. Compensation Commissioner, 123 W.Va. 621, 17 S.E.2d 330; Brozka v. County Court of Brooke County, Supra; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264. See Kanawha County Public Library v. The County Court of Kanawha County, 143 W.Va. 385, 102 S.E.2d 712.

Groves v. County Court of Grant County, 42 W.Va. 587, 26 S.E. 460, dealt with a specifically enumerated ground, i.e., '(l)ocating, or changing county seats'. It was held that the form of the legislation under attack was inconsequential. The legislation under attack in that case was an act relating to elections for relocation of county seats which, although not mentioning Grant County by its terms, could only have been applicable to Grant County. The Court said (42 W.Va. at 593, 26 S.E. at 462): 'This is classification run mad. Why not say all counties of the state named 'Grant'? ' Since Groves, there have been a number of cases in this jurisdiction determining whether a legislative enactment was an unconstitutional special enactment due to its classification. Including Groves, these cases have held proper classification to be a vital element in all legislation scrutinized under the limitations of Article VI, Section 39, whether the legislation dealt with a specifically enumerated subject matter or one included under the general prohibition: '* * * and in no case shall a special act be passed, where a general law would be proper, * * *.'

In these cases, the interpretation of Article VI, Section 39 has further evolved to the modern rule holding that a statute is a valid general law when it operates uniformly on all persons and things of a class as long as such classification is natural, reasonable and appropriate to the object sought to be accomplished. State ex rel. Appalachian Power Company v. Gainer, 149 W.Va. 740, 143 S.E.2d 351; State ex rel. Heck's Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369; State ex rel. The County Court of Cabell County v. Battle, 147 W.Va. 841, 131 S.E.2d 730; State ex rel. Plymale v. City of Huntington, 147 W.Va. 728, 131 S.E.2d 160. See also 2 Sutherland, Statutory Construction 149 (4th ed.) which states:

'When an act is assailed as class or special legislation, the attack is usually based on the claim that there are persons or things similarly situated to those embraced in the act which by the terms of the act are excluded from its operation. The question then is whether the persons or things embraced by the act form by themselves a proper and legitimate class with references to the purposes of the act. * * *'

Legislation relating to one subject matter but affecting counties or municipalities in varying ways according to different populations is a device used by modern legislatures with some frequency. In this State, such legislation is, of course, subject to the limitations of Article VI, Section 39 prohibiting special legislation.

This Court in State ex rel. The County Court of Cabell County v. Battle, Supra, upheld the primary portions of a statute providing salaries of circuit judges which varied in amount according to the population of the circuit. A part of the statute was severed, however, and held to be unconstitutional. That part of the...