State Rd. Comm'n Of West Va. v. West Va. Bridge Comm'n

• Decision Date: 20 September 1932
• Docket Number: No. 7443.,7443.
• Court: West Virginia Supreme Court
• Parties: STATE ROAD COMMISSION OF WEST VIRGINIA. v. WEST VIRGINIA BRIDGE COMMISSION et al.

166 S.E. 11

STATE ROAD COMMISSION OF WEST VIRGINIA.

v.WEST VIRGINIA BRIDGE COMMISSION et al.

No. 7443.

Supreme Court of Appeals of West Virginia.

Sept. 20, 1932.

Syllabus by the Court.

1. Under Constitution, article 7, section 7, the Legislature shall enter upon no business at an extraordinary session except that stated in the proclamation convening it. The proclamation may suggest means of accomplishing the business, but it cannot prescribe or limit the manner in which the Legislature may act.

2. Senate Bill No. 37 abolishing the West Virginia bridge commission, etc., passed at the Extraordinary Session of the Legislature in 1932, is constitutional.

Original proceeding in the Supreme Court of Appeals by the State Road Commission, a corporation, against the West Virginia Bridge Commission, a corporation, and others.

Writ awarded.

H. B. Lee, Atty. Gen., and R. Dennis Steed, Asst. Atty. Gen., for relator.

Poffenbarger & Poffenbarger, of Charleston, for respondents.

HATCHER, P.

At an extraordinary session of the Legislature convened by the Governor on July 12, 1932, an act was passed over his veto abolishing the West Virginia bridge commission and transferring its functions to the state road commission. The bridge commission has refused to recognize this act, and the road commission seeks compulsory recognition in this proceeding.

The defense of the bridge commission and the veto of the Governor are based on the same grounds, i. e., that the abolition of the commission was not included in the business stated in the proclamation which called the session, and that the act is accordingly unconstitutional.

The statutory annals of the bridge commission are short and simple. It was created in 1929. See acts of that year, chapter 8. The enactment awarded each commissioner an annual salary of $1,000 to "be paid solely from funds provided under the authority of this act" (presumably by tolls from bridges). However, the budget bill for the fiscal years ending June 30, 1932, and June 30, 1933, contained an appropriation of $12,000 for each year to pay salaries of the members of the bridge commission, its expenses, etc. Acts 1931, c. 67, pp. 219, 220, § 103.

Any observations on the Constitution would perhaps be trite. But at the risk of triteness it is necessary to restate occasionally, for the benefit of memories which lapse, the position of the Constitution in our scheme of government.

Broadly stated, the Constitution is a staunch declaration by the people themselves of their inherent rights and a circumscribed delegation by them of governmental powers to the several agencies therein appointed. Those agencies have no being apart from that instrument, and obviously cannot be greater than their creator. As early as 1793 it was established in Virginia in the case of Kamper v. Hawkins, 1 Va. Cas. 20, that the Constitution of the state was "the first law of the land * * * a fundamental law"; that the Leg islature was subordinate to the Constitution; and that "no legislative act therefore, contrary to the constitution, can be valid." Judge Nelson expressed his conclusion in the following quaint but striking language: "I ask then, whether the legislature do not sit under the constitution? The answer in the affirmative to me is inevitable." To my knowledge this conception of the relation between Constitution and Legislature has never since been questioned, and has been confirmed expressly in Capito v. Topping, 65 W. Va. 587, 591, 64 S. E. 845, 22 L. R. A. (N. S.) 1089. See, generally, 12 C. J., subject Constitutional Law, §§ 1 and 9. This paramount law (the Constitution) warns that "any departure therefrom, or violation thereof, under the plea of necessity, or any other plea, is subversive of good government, and tends to anarchy and despotism." Const, art. 1, § 3. To prevent such subversion and tendency, "every person elected or appointed to any office" in West Virginia is required to make oath as to an overlord, that he will support "the Constitution of this State." Article 4, § 5.

While full legislative power is lodged in the Legislature, article 6, § 1, the scope of that power at an extraordinary session is definitely restricted by this dominant law, as follows: "The Governor may, on extraordinary occasions convene, at his own instance, the Legislature; but when so convened it shall enter upon no business except that stated in the proclamation by which it was called together." Article 7, § 7. The policy of this section needs no forensic support; but in passing we note the following justification by the Supreme Court of Tennessee: "This undoubtedly is a very salutary provision, tending somewhat to check over-legislation, and to render laws a little more stable." Mitchell v. Turnpike Co., 3 Hump. (Tcnn.) 456, 460, 461. The language of this section is without ambiguity, and its purpose to prevent enactments not germane to subjects stated in the call is top plain for controversy. Jones v. State, 154 Ark. 288, 295. 242 S. W. 377; Jones v. Theall, 3 Nev. 233, 236. The section is also mandatory. Capito v. Topping, supra; Fayette County v. Commissioners, 18 Pa. Dist. R. 217, 222; McClintock v. Phcenix, 24 Ariz. 155, 207 P. 611; Wells v. Ry. Co., 110 Mo. 286, 19 S. W. 530, 15 L. R. A. 847; Jones v. State, 151 Ga. 502, 504, 505, 107 S. E. 765; Chicago, B. & Q. Railroad Co. v. Wolfe, 61 Neb. 502, 86 N. W. 441; Cooley's Constitutional Limitations (8th Ed.) 325, 326; 25 R. C. L., subject Statutes, § 56.

The expediency of the act is not a matter of judicial inquiry. State Road Commission V. County Court (W. Va.) 163 S. E. 815; Slack v. Jacob, 8 W. Va. 612. We have only one problem--if the subject-matter of the act is within the proclamation which convened the Legislature, the act is valid; otherwise it isvoid, and this is determined by a comparison of the act with the proclamation. There are eleven items of business mentioned in the proclamation, but only items three and eight can possibly apply to this subject. They are as follows:

"Third. The revision of salaries paid all public officials now fixed or authorized by general or special statute. (Broadened later to include every salary paid from public funds.) * * *

"Eighth. An emergency revenue measure to balance the state budget, and to raise an additional sum of five hundred thousand dollars, or such part thereof as may be deemed proper, to be applied to the relief of unemployment over a specified period, and to pay the expenses of this session, such revenue to be raised by indirect taxation by a special tax on cigarettes and/or other forms of tobacco and other luxuries, no part of the revenue for such purposes to be raised by a direct property tax."

It is manifest that the above items do not refer in terms to the abolition of an office. But in comparing the act with the proclamation, our duty requires us to give to the latter any reasonable construction possible, by which it will include the act. State Road Commission v. County Court, supra; State v. Shores 31 W. Va. 491, 498, 7 S. E. 413, 13 Am. St. Rep. 875; Slack v. Jacob, supra. The suggestion is made that item three is capable of such construction. Webster's New International Dictionary defines the word revision as a "re-examination or careful reading over for correction or improvement." This definition expesses both the popular and the legal notion of the word. The right to revise, to correct or improve, does not imply the right to destroy. To the contrary, an object destroyed is not capable of revision; its existence must continue if it is to be corrected or improved. Therefore item three supports only the determination of compensation for officials.

Item three, however, may be correlated with the opening line of item eight, which directs consideration of "An...