Sutherland v. Miller

• Decision Date: 13 March 1917
• Docket Number: 3331.
• Citation: 91 S.E. 993,79 W.Va. 796
• Parties: SUTHERLAND v. MILLER, JUDGE, ET AL.
• Court: West Virginia Supreme Court

91 S.E. 993

79 W.Va. 796

SUTHERLAND v. MILLER, JUDGE, ET AL.

No. 3331.

Supreme Court of Appeals of West Virginia.

March 13, 1917

Submitted February 1, 1917.

Syllabus by the Court.

In so far as sections 15 and 16, c. 27, Acts 1915 (section 8b, c 5, Barnes' Code), purport to authorize a judge to whom application is made, as therein provided, to order a judicial inquiry, if in his opinion the interests of public justice require it, to ascertain whether a candidate for United States senator in person or by agents expended to secure his election money or other things of value in excess of the amount allowed in that chapter sufficient to influence materially the result of the election, and to require the judge to certify his opinion and determination and the evidence adduced before him upon such investigation "to the Governor [of the state] who shall transmit the same to the proper authorities of the United States government for such action as said authorities may deem proper," they are obnoxious to and conflict with article 5 of the Constitution of this state, in that they attempt to empower a member of the judiciary as such to exercise a volition to determine when, to what extent, or whether, a judicial inquiry into alleged corrupt practices shall be undertaken by him upon such application.

Such a statute is void also because it attempts to delegate a nondelegable power. Upon the Legislature the people have impliedly conferred authority to determine the exigencies or emergencies that warrant the exercise of police power to promote the general welfare of the citizens of the state; and it cannot redelegate to any one the ultimate right to determine when, to what extent, and under what circumstances the power may properly be exercised in any given case.

In the Senate of the United States, under an express declaration of the federal Constitution (article 1, § 5) vests the exclusive power and authority to judge of the election, returns, and qualification of its members, and no other power or body lawfully can interpose or in any wise attempt to control or influence the determination of these questions, or declare void an election held to select such a member.

Petition by Howard Sutherland, for a writ of prohibition against Hon James H. Miller, Judge, and others. Writ issued.

McClintic, Mathews & Campbell, of Charleston, for petitioner.

A. M Belcher and T. A. Bledsoe, both of Charleston, for respondents.

LYNCH P.

As rival candidates in the general election held November 7 1916, to fill the office of Senator of the United States for the state of West Virginia during the term beginning March 4, 1917, William E. Chilton received 138,585 votes and Howard Sutherland 144,243 votes, according to the returns as ascertained in the manner required by law. William E. Chilton, presumably acting upon the hypothesis that section 15, c. 27, Acts 1915 (section 8b15, c. 5, Barnes' Code) was competent to confer the requisite authority therefor, presented to James H. Miller, judge of the Ninth judicial circuit, a petition in which, after in general terms alleging, but not definitely pointing out, supposed violations by Howard Sutherland and his agents of the provisions of the act known as the Corrupt Practice Act (being chapter 27, Acts 1915), by the expenditure of money and other things of value in excess of the amount thereby permitted to be expended by a candidate for such official position, to such an extent as materially to affect the result of the election so held, prayed an investigation in the nature of a judicial inquiry into the correctness of the charges made in the petition, and the relief prescribed by the act if by proof the judge should think they were sustained. Sutherland, without appearing thereto for any purpose at the time and place named in the process issued upon the petition and served on him, applied to this court and obtained a rule in prohibition against Chilton and the judge to whom the petition was addressed, to require each of them to appear, and, if either of them can, to show good cause against the award of a writ to prohibit them from further proceedings upon the aforesaid inquiry. In response to the rule, they severally appeared, by demurrer and answer to the petition. Judge Miller, without assigning any cause of demurrer, answered thereto, in part in the language of the act, that, "being of the opinion that the interests of public justice required the judicial inquiry prayed for, he authorized such inquiry and directed process in accordance with the terms and provisions of the act," and averred the nonappearance of Sutherland to object to the petition or answer the charges it preferred. As cause of demurrer, Chilton assigned lack of sufficiency in the allegations of the petition of Sutherland to warrant the award of the prohibitive process, and the qualification and competency of his corespondent to entertain and determine the inquiry sought to be prohibited, and, for answer, reiterates in brief the charges made in the petition filed by him.

Thus is raised the only vital question: Whether, in view of the declaration of article 5 of the Constitution that "the legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time," the Legislature may delegate to any person empowered to exercise the functions of a judge the determination officially and ex parte of what "the interests of public justice require" or do not require. Such, as we perceive, is the very essence of the act (Acts 1915, c. 27, § 15 [Barnes' Code, c. 5, § 8b]) out of whose provisions this controversy has arisen. It reads:

"At any time within sixty days after any primary or other election, the Attorney General, any prosecuting attorney, any candidate voted for at such election, or any one hundred qualified voters, upon giving bond to indemnify the person whose election is contested, from all costs, attorneys' fee and expenses incurred by him in defending his title to office in the event that such person's title to his office is upheld, may present to any circuit judge a petition setting forth under oath, upon information or personal knowledge, that corrupt and illegal practices contrary to the provisions of this act, specifying the same, were committed in connection with such election, naming any candidate as defendant, and praying for a judicial inquiry into the alleged facts. If such judge shall be of the opinion that the interests of public justice require such a judicial inquiry, he shall authorize such inquiry. Such petition shall be tried without a jury; the petitioner or petitioners, and all candidates at such election, shall be entitled to appear and be heard as parties; and the court shall have power to compel the attendance of witnesses and the production of books and papers which are relevant and material, and all the evidence taken shall be properly certified and made a part of the record of such proceeding."

The apparent vice of the act, if invalid, reposes in that provision which says:

"If such judge shall be of the opinion that the interests of public justice require such a judicial inquiry, he shall authorize such inquiry."

The implication is irresistible that if he shall be of the opinion that the interests of public justice do not require such a judicial inquiry he shall not authorize it. So that what the interests of public justice require is to be determined, not by that body in which the organic law has vested it, but by a member of a separate and distinct department of the state government to whom the Legislature has sought to delegate the exercise of that function.

No authority definitely demarks the exact boundary line beyond which neither department may be deemed to intrude or impinge upon the exclusive prerogatives of either of the other co-ordinate governmental departments. Such limitation is impossible of delineation. In the enactment of any statute the Legislature, in a limited sense, necessarily and properly exercises judgment, discretion, and deliberation. It investigates the facts, conditions, and circumstances, and from the knowledge or information acquired in that process determines the necessity and propriety of the legislation the object of which is to promote the general welfare of the public whom it represents. Likewise, upon those upon whom the organic law has imposed the duty to execute the laws passed by the Legislature devolves the duty of exercising sound judgment in determining the time, place, manner, and method and the extent to which and the persons against or in whose favor the laws are to be enforced. Naturally and unavoidably, the exercise of these functions, whether legislative or executive, partakes somewhat of the characteristic quality of a judicial investigation, but does not effect a trespass upon the prerogatives of the judiciary in violation of the Constitution.

In the process of determining whether an act of the Legislature is invalid, because it falls within the inhibition of the Constitution, it is essential always to remember that if a doubt exists as to its legal competency or validity, the doubt must be resolved in support of the legislation. The presumption should be and is in favor of validity. It must be assumed that the law-enacting department, whose membership pledged themselves in solemn form to support the Constitution, has not lightly disregarded that pledge.

In the chapter cited, the Legislature prescribed the limits of expenditures it deemed sufficient to allow candidates for the different official positions to be filled by the electors in any primary or general...