State v. Schoonover

• Decision Date: 13 March 1962
• Docket Number: No. 12128,12128
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia v. Orvil Q. SCHOONOVER.

Page 340

124 S.E.2d 340

146 W.Va. 1036

STATE of West Virginia v. Orvil Q. SCHOONOVER.

No. 12128.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 24, 1962.

Decided March 13, 1962.

Syllabus by the Court

1. 'Where the meaning of the Constitution is clear, the court, if possible, must give the statute such a construction as will enable it to have effect. It is always to be presumed that the legislature designed the statute to take effect, and not to be a nullity.' Point 5, Syllabus, Charleston & South Side Bridge Co. v. Kanawha County Court, 41 W.Va. 658, 24 S.E. 1002.

2. The concurrent Resolution of the regular thirty day session of the 1960 Legislature, attempting to create The Crime Commission of West Virginia, was not constitutionally adopted, and is invalid, the business of such a Resolution not having been included in the proclamation of the Governor, or adopted by a two thirds vote of the members elected to each house.

3. A defendant can not be guilty of the crime of false swearing in relation to testimony allegedly given by him before a legislative committee unconstitutionally created.

George S. Sharp, Kay, Casto & Chaney, Charleston, for plaintiff in error.

C. Donald Robertson, Atty. Gen., Simon M. Bailey, Asst. Atty. Gen., for defendant in error.

GIVEN, Judge.

Defendant, Orvil Q. Schoonover, was convicted of false swearing by a jury, in the Intermediate Court of Kanawha County, and a sentence of twelve months in the Kanawha County jail was imposed. The Circuit Court of Kanawha County, though expressing some doubt as to the validity of the sentence, the doubt being as to a controlling question of law, refused a writ of error.

The indictment on which defendant was convicted charged that the defendant was subpoenaed by and appeared before The Crime Commission of West Virginia, and, after being sworn by the co-chairman of the commission, was asked questions concerning an issue within the proper jurisdiction of the Commission, including the specific question 'Now, he [referring to Otha Alfred Eagle] has stated that he did not work for the State Road Commission for the months of October and November, in fact, he did not work for the State Road Commission from the 26th of September until the 9th of December, 1959, but during that particular period of time, he drew four checks, two of which checks--three of which checks were forged and that's the word he used, they were 'Forged.' his name was forged on them. Those are represented by Exhibit 157-156-158, on which below his endorsement, 'For deposit only Schoonover Service Station', and which you have previously examined. Now, I'll ask you to look at Otha Alfred Eagle's signature and ask you if you signed his name to those checks?' The indictment then alleges that defendant '* * * testified, deposed and swore wilfully, falsely corruptly and unlawfully in answer to said question, 'No. I didn't sign those--', when in truth and in fact the said Orvil Q. Schoonover had signed the name of Otha Alfred Eagle to the checks referred to in said question. Whereupon the said Orvil Q. Schoonover did then and there before the said The Crime Commission of West Virginia then and there in session, as aforesaid, in the County aforesaid, unlawfully, wilfully and corruptly swear falsely, against the peace and dignity of the State.'

Numerous questions are raised and errors assigned, as to alleged prejudicial actions of the trial court in the trial of the case. These questions become immaterial and improper for consideration here, however, since we have reached the conclusion that The Crime Commission of West Virginia was not constitutionally created, and had no legal existence.

At the general election held in November, 1954, the pertinent provision of the Constitution, Article VI, Section 22, was adopted. It reads: 'The regular session of the Legislature held in the year one thousand nine hundred fifty-five and every second year thereafter shall not exceed sixty days, and the regular session held in the year one thousand nine hundred fifty-six and every second year thereafter shall not exceed thirty days. During any thirty-day session the Legislature shall consider no other business than the annual budget bill, except such as may be stated in a proclamation issued by the Governor at least ten days prior to the convening of the session, or such business as may be stated by the Legislature on its own motion in a concurrent resolution adopted by a two-thirds vote of the members elected to each house. All regular sessions may be extended by the concurrence of two-thirds of the members elected to each house.'

Pursuant to the provisions of the constitutional amendment, the Governor of the State, on December 31, 1959, issued his proclamation setting forth the 'business to be considered by the Legislature at its regular thirty-day session commencing January 13, 1960, in addition to the annual budget bill'. The proclamation contained numerous items of business to be considered, but the only item that could possibly relate to the business of such a resolution as the one here involved, and the only one contended by the State to have any possible application, is contained in Item 2, in this language: 'Legislation to provide additional state revenues to be used: (a) for the construction and maintenance of state roads and highways; (b) for purchase, development, improvement and expansion of state parks, state forests and scenic attractions; the reclamation of strip mined areas; the improvement of streams, and the development of recreational areas and facilities; (c) to expand the department of public safety to the maximum strength authorized by law; and (d) for capital improvements at state institutions.'

The parties have stipulated that the vote of each house on the resolution alleged to have created The Crime Commission of West Virginia, being house concurrent resolution No. 27, was in the House of Delegates, seventy-two in favor of its adoption, and twenty-six against its adoption, and in the Senate seventeen for its adoption and thirteen against its adoption. It may here be noticed that the resolution was not adopted by a 'two-thirds vote of the members elected to each house.'

The basis for the resolution was stated to be for the purpose of 'Providing for a comprehensive investigation into crime, vice and gambling in the State of West Virginia to ascertain the extent of such activities and whether legislation is needed to facilitate the discovery of such and the prosecution of persons involved', and the resolution stated that The Crime Commission of West Virginia '* * * is hereby created to conduct a comprehensive and detailed investigation into the existence of crime, vice and gambling in the State of West Virginia, including, but not limited to, the methods and places of operation, persons engaged in such activities, directly or indirectly, and particularly persons holding any sort of state or local government position who may be in any way connected with such activities.' Full powers for organization and operation of the commission were provided, including the powers to subpoena, swear and examine witnesses, and the commission was required to '* * * make reports to the members of the Legislature by mail from time to time as it shall deem advisable, and shall on or before September 1, 1960, make an interim report by mail to the members of the Legislature embracing its findings and recommendations to that time. Not later than the third week after convening of the regular session of the Legislature in the year one thousand nine hundred sixty-one, the commission shall make a final report to the Legislature and shall include in such report such findings and recommendations as it shall deem pertinent and shall include in such reports drafts of any proposed legislation which it deems necessary to carry the recommendations of the commission into effect.'

The statute under which the indictment was drawn, Code, 61-5-2, reads: 'To wilfully swear falsely, under oath or affirmation lawfully administered, in a trial of the witness or any other person for a felony, concerning a matter or thing not material, and on any occasion other than a trial for a felony, concerning any matter or thing material or not material, or to procure another person to do so, is false swearing and is a misdemeanor.'

In attempting to determine the validity or constitutionality of the resolution of the Legislature, this Court must endeavor to find some reasonable basis for holding the same valid, for the simple reason that any act of that coordinate branch of our government is presumed to be within its powers and valid. See Bennett v. Bennett, 135 W.Va. 3, 62 S.E.2d 273; State by Davis v. C. H. Musselman Co., 134 W.Va. 209, 59 S.E.2d 472; State Road Commission of West Virginia v. County Court of Kanawha...