State Rd. Comm'n v. Kanawha County Court

• Decision Date: 12 April 1932
• Docket Number: No. CC 454.,CC 454.
• Citation: 163 S.E. 815
• Parties: STATE ROAD COMMISSION. v. KANAWHA COUNTY COURT.
• Court: West Virginia Supreme Court

163 S.E. 815

STATE ROAD COMMISSION.

v.KANAWHA COUNTY COURT.

No. CC 454.

Supreme Court of Appeals of West Virginia.

April 12, 1932.

Syllabus by the Court.

1. Courts are not concerned with questions relating to the policy of a legislative enactment. These questions are solely for the Legislature.

2. The general powers of the Legislature are almost plenary. It can legislate on every subject not interdicted by the Constitution itself.

3. In considering constitutional restraint, the negation of legislative power must be manifest beyond reasonable doubt.

4. Prospective conditions which may never arise are entitled to little, if any, weight in considering the constitutionality of an act.

5. Courts ordinarily will not invoke a supposed spirit of the Constitution against an enactment.

6. Legislative exposition of a constitutional provision, particularly when made almost contemporaneously with the provision, is entitled to great deference.

7. The continued acquiescence of courts in the constitutionality of a statute over a considerable period of time is also entitled to weight.

8. Strict adherence to the letter of a constitutional provision is not requisite in a case clearly without the intendment of the provision.

9. Constitution, art. 8, § 24, does not rid county courts of legislative supervision.

10. "When any public work is authorized, it rests with the legislature, unless restrained by constitutional provisions, to determine in what manner the means to defray its costs shall be raised." County of Mobile v. Kimball, 102 U. S. 691, 703, 704, 26 L. Ed. 238.

11. Section 31, chapter 6, Acts 1923, is constitutional.

Certified Questions from Circuit Court, Kanawha County.

Action by the State Road Commission against the Kanawha County Court. The circuit court sustained a demurrer to the declaration, and, on joint application of the parties, certified the questions arising on the demurrer for review.

Ruling reversed.

Howard B. Lee, Atty. Gen., and R. A, Blessing and R. Dennis Steed, Asst. Attys. Gen., for plaintiff.

Robert S. Spilman and R. G. Kelly, both of Charleston, for defendant.

HATCHER, P.

In this action, the state road commission seeks to recover from the county court of Kanawha county certain moneys which the commission expended for rights of way for state roads within the county. The circuit court sustained a demurrer to the declaration, and, upon the joint application of the parties, certified the questions arising on the demurrer to this court.

There are several matters certified, but they all merge into the one question: Is section 31, chapter 6, Acts 1923, constitutional? The gist of the section (hereinafter referred to as the Act) is that the commission may acquire any lands necessary (from any cause) "for the purpose of constructing, widening, straightening, grading or altering any state road, " and that the county court of the county in which the road is situated shall pay for such lands. Learned counsel for the defendant contend that the section is opposed to the best administrative interests of the county, and is repugnant to the powers and limitations of county courts expressed in the Constitution, article 8, § 24, and article 10, §§ 6, 7, and 8. Section 24 confers on county courts superintendence and administration of the fiscal affairs and roads of their counties "under such regulations as may be prescribed by law." Section 6, art. 10, forbids the state to loan its credit to or assume the indebtedness of a county. Section 7 limits the annual assessment of county taxes to 95 cents per $100 valuation (except under certain conditions which do not exist in this case); and section 8 limits the amount for which a county may become indebted to 5 per centum of the value of its taxable property.

We shall not concern ourselves with questions relating to the policy of the act, as these questions are solely for the Legislature. In 1 Cooley's Constitutional Limitations (8th Ed.) p. 346, our restriction is thus stated: "The judiciary can only arrest the execution of a statute when it conflicts with the constitution. It cannot run a race of opinions upon points of right, reason and expediency with the lawmaking power." Accord: Sharpe v. Robertson, 5 Grat. (Va.) 518, 617; Bull v. Read, 13 Grat. (Va.) 78, 98, 99; Slack v. Jacob, 8 W. Va. 612 (pt. 6 of syl.); Herold v. McQueen, 71 W. Va. 43, 48, 75 S. E. 313; Lewis' Sutherland, Statutory Construction (2d Ed.) § 85; 6 R. C. L. subject Constitutional Law, § 108; 12 C. J. subject Constitutional Law, § 173. We say, as was said by the Supreme Court of the United States, in County of Mobile v. Kimball, 102 U. S. 691, 704, 26 L. Ed. 238, it may be that in some instances the provisions of the act are "harsh and oppressive"; it may be that It would have been fairer to have provided payment from regular state funds for lands acquired by the commission; "but this court is not the harbor, in which the people of a city or county can find a refuge from ill-advised, unequal, and oppressive State legislation, " even if the enactment should be so considered. We shall look only to the authority of the Legislature to make this requirement of county courts. That authority depends (1) on the general power of the Legislature, and (2) on the special power conferred by the so-called "good roads amendment" to the Constitution in 1920 (see Laws 1919, p. 502).

1. The general powers of the Legislature are almost plenary, as it can legislate on every subject not foreclosed by the Constitution itself. "The test of legislative power is constitutional restriction. What the people have not said in the organic law their representatives shall not do, they may do." Russ v. Commonwealth, 210 Pa. 544, 60 A. 169, 172, 1 L. R. A. (N. S.) 409, 105 Am. St. Rep. 825. Accord: Sharpe v. Robertson, supra, page 616 of 5 Grat.; Bridges v. Shallcross, 6 W. Va. 562, 574, 575; Slack v. Jacobs, supra, page 637 of 8 W. Va.; Coal & Coke Ry. Co. v. Con-ley and Avis, 67 W. Va. 129, 187, 67 S. E. 613; Booten v. Pinson, 77 W. Va. 412, 425, 426, 89 S. E. 985, L. R. A. 1917A, 1244; State v. Page, 100 W. Va. 166, 169, 130 S. E. 426, 44 A. L. R. 501; Sutherland, supra, § 81; Coo-ley, supra, p. 175 et seq.; 6 R. C. L. supra, § 152; 12 C. J. supra, § 168. The powers of a state Legislature are not to be confused with those of Congress. The Federal Coffstitution is a grant of power, while a state Constitution is a restriction of power. In other words, we look to the Federal Constitution to see what Congress may do; we look to a state Constitution to see what the Legislature may not do. This thought is expressed in almost the same language in one of the first cases decided by this court, Ex parte Stratton, 1 W. Va. 305. It was repeated in Ex parte Hunter, 2 W. Va. 122, 161, and has never since been questioned in this jurisdiction. See, generally, 12 C. J., supra, §§ 157 and 167; Cooley, supra, pp. 354-5.

Whether the Legislature has a certain power (not directly withdrawn) is not to be decided simply by marshaling the reasons for and against and then determining on which side is the weight of argument. The negation of the power must be manifest beyond reasonable doubt. This rule had become settled as early as 1811, when the Supreme Court of Pennsylvania declared: "It must be remembered, however, that for weighty reasons, it has been assumed as a principle in construing constitutions, by the Supreme Court of the United States, by this Court, and every other court of reputation in the United States, that an act of the legislature is not to be declared void, unless the violation of the constitution is so manifest as to leave no room for reasonable doubt." Commonwealth v. Smith, 4 Bin. (Pa.) 117, 123. Accord: Osburn v. Staley, 5 W. Va. 85, 13 Am. Rep. 640; Bridges v. Shallcross, supra; Ex parte McNeeley, 36 W. Va. 84, 95, 14 S. E. 436, 439, 15 L. R. A. 226, 32 Am. St. Rep. 831; South Morgantown v. Morgantown, 49 W. Va. 729, 40 S. E. 15; State v. County Court, 60 W. Va. 339, 351, 352, 55 S. E. 382; Duncan v. Ry. Co., 68 W. Va. 293, 297, 69 S. E. 1004, Ann. Cas. 1912B, 272; Booten v. Pinson, supra; Bates v. Commission, 109 W. Va. 186, 187, 153 S. E. 305; Sutherland, supra, § 82; Cooley, supra, pp. 371, 372; 1 Bryce, The American Commonwealth, 430; 6 B. C. L. supra, §§ 73 and 98; 12 C. J. supra, §§ 221, 222.

2. The special authority conferred by the amendment of 1920 (see Laws 1919, p. 502) is as follows: "The legislature shall make provision by law for a system of state roads and highways connecting at least the various county seats of the state, and to be under the control and supervision of such state officers and agencies as may be prescribed by law. The legislature shall also provide a state revenue to build, construct, and maintain, or assist in building, constructing and maintaining the same and for that purpose shall have power to authorize the issuing and selling of state bonds, the aggre gate outstanding amount of which, at any one time, shall not exceed fifty million dollars."

The amendment, as the later expression of the popular will, would prevail over anything to the contrary in former constitutional provisions. Cooley, supra, p. 129. The amendment in fact confers but little, if any, power on the Legislature which it did not already have, except the power to issue bonds. It does dispel, however, any doubts which could possibly arise as to the regency of the Legislature over such roads as should be included in the state system. The law relative to the power of the Legislature to finance the construction of the state roads is well settled. "When any public work is authorized, it rests with the legislature, unless restrained by constitutional provisions, to determine in what manner the means to defray its cost shall be raised. It may apportion the burden ratably among all the counties, or other particular subdivisions of the State, or lay the greater share or the whole upon that county or portion of the State specially and...