State v. Heston, 10471

• Citation: 71 S.E.2d 481,137 W.Va. 375
• Decision Date: 15 September 1952
• Docket Number: No. 10471,10471
• Court: Supreme Court of West Virginia
• Parties: STATE, v. HESTON.

Page 481

71 S.E.2d 481

137 W.Va. 375

STATE, v. HESTON.

No. 10471.

Supreme Court of Appeals of West Virginia.

Submitted April 16, 1952.

Decided July 8, 1952.

Rehearing Denied Sept. 15, 1952.

Syllabus by the Court.

1. Courts will take judicial notice of the journals of both houses of the Legislature and other legislative records in determining whether constitutional provisions relating to the enactment of legislation have been complied with and observed.

2. In testing the legal sufficiency of a plea in abatement which omits material facts of which courts take judicial notice, those omitted facts should be considered; and if such omitted facts and the facts alleged in the plea in abatement, considered together, do not constitute a valid defense, a demurrer to such plea in abatement should be sustained.

3. A bill duly enrolled, authenticated, and approved is presumed to have been passed by the Legislature in conformity with the requirements of the Constitution, unless the contrary affirmatively appears from the journal of either house or other legislative records; and the failure of the Legislature to comply with constitutional requirements in its enactment, which can be considered only when disclosed by ambiguity, omission or conflict in such journal or other legislative records, must be clearly and convincingly established to overcome such presumption.

4. The journals of the two houses of the Legislature and other legislative records, when clear and unambiguous, are presumed to be correct and the contrary must be clearly and convincingly established to overcome such presumption; and when such records are clear and free from ambiguity or conflict extrinsic evidence can not be admitted to impeach them or to overcome the presumption that they are correct.

5. Under Article VII, Section 14, of the Constitution of this State which provides that every bill passed by the Legislature shall be presented to the Governor before it becomes a law, that if he approves it he shall sign it, and that it shall then become a law, but which does not expressly prescribe any period of time within which it must be so presented, a bill, which has been passed by the Legislature and which, within five days, excluding Sunday, after its adjournment, is presented to the Governor, is approved and signed by him, and is filed in the office of the Secretary of State on the same day, is properly authenticated; and such procedure, taken within such period of five days, does not disregard any requirement, or contravene any provision, of Article VII, Section 14, of the Constitution of this State.

6. A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and the others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.

Chauncey Browning, Atty. Gen., George W. Stokes, Asst. Atty. Gen., Donald L. Schaffer, Atty., State Road Commission, Charleston, for plaintiff in error.

Tusca Morris, George W. May, Fairmont, for defendant in error.

HAYMOND, Judge.

The defendant, William J. Heston, was indicted in the Criminal Court of Marion County, West Virginia, at its regular January Term, 1952, for a misdemeanor. The offense charged in the indictment is that in November, 1951, the defendant, being the owner of a certain motor vehicle which was not specially designed to transport and haul only liquid or semi-liquid products, without a special permit in writing authorizing the operation of such motor vehicle, knowingly and unlawfully drove such motor vehicle upon a highway known as the Pleasant Valley Road, in Marion County, with a weight imposed upon such highway by the rear axle of such motor vehicle of 19,210 pounds, which is in excess of the maximum weight of 18,000 pounds permitted by Subsection (a), Section 8 Article 17, Chapter 17-C of Chapter 129, Acts of the Legislature, 1951, Regular Session, and a tolerance of five per cent of such weight of 900 pounds, in violation of Section 14 of the same article and chapter.

To the foregoing indictment the defendant filed his plea in abatement and to the plea in abatement the State of West Virginia filed its written demurrer. The criminal court, by order entered January 28, 1952, overruled the demurrer to the plea in abatement, and held the statute, Chapter 129, Acts of the Legislature, 1951, Regular Session, to be unconstitutional, null and void. The State of West Virginia declined to file any replication to the plea in abatement; and the criminal court, on motion of the defendant, by order entered January 3u, 1952, quashed the indictment, dismissed the proceeding, and discharged the defendant.

Upon writ of error to the final judgment of the criminal court, the judge of the circuit court of Marion County, by order entered in vacation on February 14, 1952, affirmed the judgment of the criminal court. To that order this Court, under Section 30, Article 5, Chapter 58, Code 1931, awarded this writ of error upon the petition of the State of West Virginia.

By his plea in abatement the defendant, asserting that the indictment is fatally defective because it is not based upon a valid statute, attacks the constitutionality of the act, Chapter 129, Acts of the Legislature, 1951, Regular Session, on substantially these grounds: (1) The regular 1951 session of the Legislature, not having been legally extended beyond its expiration date, except by the Governor for a period of five days to enable it to pass a budget bill, the act, designated as Engrossed House Bill No. 189, having been previously passed by the House of Delegates, was not passed by the Senate until after the expiration on March 10, 1951, of the sixty day period imposed by Article VI, Section 22, of the Constitution of this State for all sessions of the Legislature other than extraordinary sessions; (2) the act, being designated Engrossed House Bill No. 189, not having been presented to the Governor until March 16, 1951, which was six days after the expiration of the sixty day period on March 10, 1951, was not presented to the Governor in the manner required by Article VII, Section 14, of the Constitution of this State; and (3) the act contains discriminatory and arbitrary provisions, in regard to the weights and the types of different motor vehicles, which exempt certain motor vehicles specially designed to transport and haul liquid or semi-liquid products, during the life of such vehicles from the penalties imposed by the act, contrary to the provisions of Article III, Sections 1 and 10, of the Constitution of this State and of the Fifth and Fourteenth Amendments to the Constitution of the United States.

The plea in abatement sets out in detail the facts and the Constitutional provisions, including Article VI, Section 22, and Article VII, Section 14, upon which the defendant relies to support his contention that the statute is invalid.

As to the first ground that the act was not passed by the Senate until after midnight of March 10, 1951, the expiration date of the session, the plea states certain proceedings shown by the journal of the Senate under date of March 10, 1951, relating to House Bill No. 30, as to which, following a statement of the President that 'we are still operating under the tenth of March.', Senator Eddy stated that 'it is now twenty minutes after eight, on March eleventh, one thousand nine hundred fifty-one, and that when Eng. House Bill No. 30 was considered in this body approximately an hour ago, it was then twenty minutes after seven, on March eleventh, one thousand nine hundred fifty-one'; and alleges that, on motion of another Senator, the foregoing remarks were incorporated in the journal by a vote, upon a division, of 14 yeas and 11 nays. The plea, with further reference to the time of the passage of the act by the Senate, also alleges that the journal of the Senate 'shows that immediately after Enrolled House Bill No. 30 was considered and passed, Enrolled House Bill No. 189 was actually considered and passed by the Senate'; that House Bill No. 189 was actually passed by the Senate after House Bill No. 30 had actually been passed; and that 'therefore, said Enrolled House Bill No. 189, was considered and acted upon and passed by the Senate on Sunday, the 11th day of March, 1951, between 7:20 o'clock P.M. and twenty minutes after eight o'clock P.M., Sunday, the 11th day of March, 1951, after the term of the Legislature had actually, legally and constitutionally expired under the provisions of law and the Constitution of West Virginia.' The plea further alleges that 'said Legislature, Regular Session, 1951, after midnight, on the 10th day of March, 1951, continued to be in session under a double-barrelled situation, to-wit: one, said Legislature had been extended beyond twelve o'clock midnight, on the 10th of March, 1951, under said proclamation of the Governor for five days for the purpose of considering and the passage of said Budget Bill, and the other, an illegal and unconstitutional continuation of said Legislature, Regular Session, 1951, done by surreptitiously, fraudulently, illegally and unconstitutionally turning back the time clock in and before said House of Delegates, and the time clock in and before said Senate, and thereby continuing and prolonging the day of said 10th day of March, 1951, past twelve o'clock midnight, surreptitiously, fraudulently, illegally and unconstitutionally, and thereby holding said Legislature in Session for the passage of said Enrolled House Bill No. 189, which both said House of Delegates and said Senate had passed and enacted, after twelve o'clock midnight on the 10th day of March, 1951, and, therefore, said Engrossed House...