State ex rel. Trent v. Sims

• Decision Date: 15 July 1953
• Docket Number: No. 10575,10575
• Citation: 138 W.Va. 244,77 S.E.2d 122
• Parties: STATE ex rel. TRENT et al. v. SIMS, Auditor.
• Court: West Virginia Supreme Court

Page 122

77 S.E.2d 122

138 W.Va. 244

STATE ex rel. TRENT et al. v. SIMS, Auditor.

No. 10575.

Supreme Court of Appeals of West Virginia.

Submitted April 15, 1953.

Decided May 18, 1953.

Concurring Opinion July 15, 1953.

Syllabus by the Court

1. If a constitutional provision is clear in its terms, and the intention of the electorate is clearly embraced in the language of the provision itself, this Court must apply and not interpret the provision.

2. Section 51, Article VI, West Virginia Constitution, commonly known as the 'Budget Amendment', is couched in mandatory terms, and clearly embraces a mandate of the electorate of this State governing the Legislature in the appropriation of public funds.

3. As used in constitutional provisions, the word 'shall' is generally used in the imperative or mandatory sense.

4. The word 'shall', when used in a constitutional provision which concerns the public interest or a general public policy, should be held imperative or mandatory.

5. The word 'shall', as used in Sub-Section A and Section First of Sub-Section B, Section 51, Article VI, West Virginia Constitution, should be read as mandatory.

6. Words used in a state constitution, as distinguished from any other written law, should be taken in their general and ordinary sense.

7. Under Sub-Section A, Section 51, Article VI, West Virginia Constitution, the Legislature cannot make an appropriation, except by a budget bill or by a supplementary appropriation bill.

8. Section First Sub-Section B, Section 51, Article VI, West Virginia Constitution, imposes on the Board of Public Works the mandatory duty to prepare and submit to the Legislature two budgets, one for each of the ensuing fiscal years; and under Section Third, Sub-Section B, the Board of Public Works has the mandatory duty to deliver to the presiding officer of each House of the Legislature, two budgets and a budget bill for all of the proposed appropriations of the budgets, clearly itemized and classified.

9. The words 'shall not', as used in the first paragraph of Section 51, Article VI, West Virginia Constitution, should be given their general and ordinary meaning, and read as prohibiting the Legislature from appropriating any money out of the treasury, except in accordance with the provisions of Section 51.

10. The words 'Neither House shall consider other appropriations until the budget bill has been finally acted upon by both Houses,' contained in Sub-Section C, Section 51, Article VI, West Virginia Constitution, mean that the Houses of the Legislature shall not consider other appropriations until the budget bill has been finally acted upon by both Houses, and this clause prohibits the Legislature from considering other appropriations until a constitutional budget bill has been finally acted upon.

11. The language of Section Third, Sub-Section B, Section 51, Article VI, West Virginia Constitution, that 'The Legislature shall not amend the budget bill so as to create a deficit', is unambiguous and prohibitory.

12. Under Section 51, Article VI, West Virginia Constitution, a budget act, which amends a budget bill submitted to the Legislature by the Board of Public Works, in pursuance of Section Third, Sub-Section B thereof, and which provides for a total amount of the appropriations made in excess of the total amount set forth in the budget bill, creates a deficit in contravention of the prohibitory provisions of Section Third, Sub-Section B, Section 51, Article VI, West Virginia Constitution, and renders the budget act unconstitutional in its entirety.

13. Committee Substitute for Senate Bill No. 1, passed on March 14, 195o, effective from passage, created a deficit within the meaning of Section 51, Article VI, West Virginia Constitution, and for that reason is unconstitutional in its entirety.

14. In the consideration of the question whether Committee Substitute for Senate Bill No. 1, passed on March 14, 1953, effective from passage, is unconstitutional in its entirety because it creates a deficit prohibited by Section 51, Article VI, West Virginia Constitution, the finding of the Legislature in amending the budget that '* * * estimates of funds in the treasury at the time this act is enacted, and expected revenues to accrue prior to July 1, 1953, and during the biennium 1953-55, will furnish funds sufficient to pay' the expenses of State Government, and provide interest and principal on the debts of the State, cannot be held by this Court to overcome the mandate of the electorate of this State, contained in Section 51, Article VI, West Virginia Constitution, that the Legislature cannot pass a budget act which will create a deficit.

15. Under Section Third, Sub-Section B, Section 51, Article VI, West Virginia Constitution, the Legislature in the passage of a budget act may amend a budget bill submitted to it by the Board of Public Works by increasing or diminishing items relating to the Legislature and increasing items relating to the judiciary, but may not otherwise amend the budget bill, except to strike out or reduce items therein.

16. All of the items of Committee Substitute for Senate Bill No. 1, passed on March 14, 1953, effective from passage, which, by amendment of the budget bill, decreased items relating to the judiciary and increased items and incorporated new items, other than those relating to the Legislature and the judiciary, are unconstitutional.

17. The word 'may', appearing in the exception to the first sentence contained in the third paragraph of section Third, Sub-Section B, Section 51, Article VI, West Virginia Constitution, contrasted with the words 'shall not', as used in the principal provision of that paragraph, that is 'The Legislature shall not amend the budget bill so as to create a deficit', is used in the sense of permission and the delegation of power.

18. As Committee Substitute for Senate Bill No. 1, passed on March 14, 1953, effective from passage, amended the budget bill covering the 1953-55 biennium in twenty-five instances by increasing items, other than those relating to the Legislature and to the judiciary; and in forty-four instances by incorporating new items, other than those relating to the Legislature and to the judiciary; and by decreasing items relating to the Supreme Court of Appeals and the State Law Library, the amendments so made are so numerous and extensive that if stricken from Committee Substitute for Senate Bill No. 1, the result would be a budget act not intended by the Legislature, and for that reason Committee Substitute for Senate Bill No. 1, even if it created no deficit, is unconstitutional in its entirety.

19. The saving clause contained in Section Fourth, Sub-Section D--General Provisions, Section 51, Article VI, West Virginia Constitution, which reads: 'If any item of any appropriation bill passed under the provisions of this section shall be held invalid upon any ground, such invalidity shall not affect the legality of the bill or of any other item of such bill or bills', and the saving clause set forth in Section 7 of Committee Substitute for Senate Bill No. 1, under 'Title III--Administration', effective from passage, do not operate to save the remaining parts of the act.

20. If the elimination of the unconstitutional parts of an act of the Legislature would result in an act other and different from that which the Legislature intended to enact, a saving clause will not operate to save the remaining parts of the act.

21. Section 35, Chapter 39, Acts of the Legislature, Regular Session, 1939, providing: 'If the board [Board of Public Works] determines that the amounts, or parts thereof, appropriated from the general revenue cannot be expended without creating an overdraft or a deficit in the general fund, it may instruct the director [Director of the Budget] to reduce equally and pro rata all appropriations out of general revenue in such a degree as may be necessary to prevent an overdraft or a deficit in the general fund', and Section 13, Chapter 50, Acts of the Legislature, Regular Session, 1949, which provides:

'If at any time deficiencies in the revenue reduce amounts available for state aid below the amount of appropriations made by the Legislature for any fiscal year, or if the amount appropriated by the Legislature for any fiscal years is insufficient to meet in full the requirements for that year of the distribution formula prescribed in this article, and it becomes necessary for the state board to reduce the amount of state aid it shall make reductions for each county as follows:

'(1) Fifty per cent of the total reductions shall apply proportionately to the adjustment made for each county adjusted, and

'(2) The remaining fifty per cent of the deficiencies shall be applied as a uniform percentage reduction of the foundation program for each county', do not render valid a budget act which, when enacted, created an unconstitutional deficit.

22. Section 51, Article VI, West Virginia Constitutional, does not take from the Legislature the power delegated to it under Sections 3 and 5, Article X, West Virginia Constitution, to appropriate money and levy taxes for State purposes. That power, notwithstanding the provisions of Section 51 is still vested in the Legislature, and Section 51 simply provides a direction to the Legislature as to how appropriations of public money should be made for State purposes.

23. If on the consideration of a budget bill submitted to the Legislature by the Board of Public Works, in accordance with Section Third, Sub-Section B, Section 51, Article VI, West Virginia Constitution, it should appear that the budgets and the budget bill, prepared in conformity with Section 51, do not provide sufficient appropriations to maintain the public school system, the road system of this State, the eleemosynary and educational institutions of this State, the rendition of all necessary and proper services, and provide for all proper subjects...