Wise v. Bigger

• Decision Date: 07 August 1884
• Citation: 79 Va. 269
• Parties: WISE v. BIGGER, CLERK, & ALS.
• Court: Virginia Supreme Court

79 Va. 269

WISE v. BIGGER, CLERK, & ALS.

Supreme Court of Appeals of Virginia.

August 7, 1884

Upon petition of John S. Wise for a writ of mandamus to compel John Bell Bigger, clerk of the house of delegates and keeper of the rolls of Virginia, to strike from the rolls the act entitled, " An act to apportion the representation of the state of Virginia in the congress of the United States," in force on 22d day of February, 1884, and to compel Rush U. Derr, superintendent of public printing, to omit said act from the acts of the general assembly for 1883-84. Opinion states the case.

R. T Hubard, for the petitioner.

John W. Daniel, W. R. Staples, for the respondents.

OPINION

FAUNTLEROY J.

Upon the petition of John S. Wise, a citizen of Richmond Virginia, representing that he is a qualified voter therein and now representative in congress from the state of Virginia at large, and, as such, interested in having the proper representation in congress to which the state is entitled secured to him, in common with other citizens, as also his right to vote for a representative at large from said state, or himself to be voted for as a candidate for such office; that he is aggrieved and injured, and his rights aforesaid endangered by the wrongful enrollment among the laws of Virginia, by J. Bell Bigger, clerk of the house of delegates and keeper of the rolls of Virginia, and his refusal to exclude or strike from the said rolls, a certain pretended act of assembly, entitled " an act to apportion the representation of the state of Virginia in the congress of the United States," and alleged to be in force on the 22d day of February, 1884, and which was designated on the senate journal and known as " senate bill No. 321; " and also by the wrongful refusal of R. U. Derr, superintendent of public printing, to omit said pretended act from the acts of assembly, and his proceeding to publish and distribute the same, as " chapter 147" of the " Acts of Assembly of 1883-1884," with the title aforesaid; it was ordered by this court, on 22d July, 1884, that the said John Bell Bigger, clerk of the house of delegates, and keeper of the rolls of Virginia, and the said R. U. Derr, superintendent of public printing, after being served with a copy of this order, appear here, at 12 m. on the 31st day of July, 1884, and show cause, if any they can, wherefore the commonwealth's writ of mandamus should not be awarded the said John S. Wise, commanding the said John Bell Bigger, clerk of the house of delegates and keeper of the rolls of Virginia, to strike from the rolls the act entitled, " an act to apportion the representation of the state of Virginia in the congress of the United States," designated as in force on the 22d day of February, 1884; and also commanding the said R. U. Derr, superintendent of public printing, to omit said act from the acts of the general assembly for 1883-1884, which he is required by law to publish and distribute.

The petition alleges that said act having gone on the rolls and being printed and distributed as one of the laws of the state, the officers of the state, including judges and commissioners of election, will be bound to respect it and conform to it, unless it be declared void by this court; that whereas heretofore the people have elected nine representatives in congress by districts, and one for the state at large, the bill aforesaid provides that all ten representatives shall be chosen by the respective electors of the ten districts described therein, and in the present uncertainty the state is in danger of losing her representation entirely in the forty-ninth congress; for if the election takes place pursuant to the provisions of said bill, and the same be not a law, then the state will have no legally elected and duly accredited representatives in the forty-ninth congress; that the said senate bill, No. 321, never in fact became a law, for that there is no sufficient evidence that the said bill ever passed the senate (the house in which it originated) by such a majority over the governor's veto as the constitution requires; that, in point of fact, it never received the affirmative vote of two-thirds of the senators present when the question was put, " shall the bill pass, notwithstanding the objections of the governor?" That there were, at the time, present in the senate chamber not less than twenty-nine senators, and that only nineteen of these voted " aye" on such passage of the said bill. The petitioner exhibits the senate journal of February 22, 1884, and the rules of that body, and avers that the senate had an official stenographic reporter, whose reports were recognized by the senate as official, and which reports for that day will show that Senator Williams C. Wickham was present and not voting on the said passage of the said bill, he declaring that he regarded the said bill as unconstitutional and could not support it under any circumstances; and the petition avers that he was so present, and was not, and could not be, lawfully excused from voting, that, in fact, the senate journal itself discloses the fact that the said senator was present at that time, although it does not in terms say so. The petition alleges and insists that it was not in the lawful power of the senate to so recognize " pairs " of individual senators as to convert a majority vote into a two-thirds vote, to pass the said bill over the executive veto, and prays leave to prove by the stenographic report and other evidence, the facts alleged in the petition. The petition further alleges that the said pretended act is null and void, on the further ground of repugnance to the 12th and 13th sections of article V, of the constitution of Virginia, because the districts into which the state is thereby divided, are not, or as near as may be, equal in " population," " " " compact," and composed of " contiguous counties, cities, and towns."

The respondents appeared on the day named in the rule and demurred to the petition and to the rule, and answered the same.

Respondent Derr adopted the answer of his co-respondent, Bigger, as a part of his answer, and further says, that in pursuance of his official duties as superintendent of public printing, he had printed and distributed the acts of the general assembly of Virginia for the session 1883-84, before the rule in this case was served upon him, and that among said acts so printed and distributed by him, is the act in the petition of the relator referred to and entitled an " act to apportion the representation of the state of Virginia in the congress of the United States; " and that, having so printed and distributed the said acts, as he was required by law to do, he has no further official control over them, and that it would be out of his power to obey a peremptory mandamus, if one were awarded by this court, as prayed for by the relator against him. To the aforesaid return of the respondents to the rule nisi, the petitioner joined in the demurrer, and replied and demurred to the answers.

The demurrer of respondents admits the facts set forth in the petition, and the answers controvert the material facts and the questions of law arising upon the facts set forth in the petition and denied in the answers.

Upon these pleadings we have first to determine the question of the jurisdiction or power of this court in the premises, and the right of the relator to the extraordinary remedy which he seeks.

We have no doubt of the jurisdiction of this court to hear and determine the questions arising upon this application.

At a very early day, in the leading case of Marbury v. Madison, 1 Cranch 172-3, it was determined by the supreme court of the United States that the inferior court of the United States had jurisdiction to hear and determine, upon petition for mandamus, the question whether the president of the United States had, or had not, exercised in conformity with the constitution of the United States, the executive function of appointment of justices of the peace for the District of Columbia, which was vested in the executive department exclusively by the constitution of the United States.

And, from that day to this, it has been the indisputable and clear function of the courts, federal and state, to pass upon the constitutionality of legislative acts; and the grounds of this jurisdiction, as well as the duty of its fearless exercise, are admirably stated by Chief Justice Marshall, at pages 170 to 180, 1 Cranch's Reports, before cited; and vide 1 Va. Cases, 20.

That the court must take notice of compliance, or non-compliance, with the constitution, in the mode and manner of enacting laws, as well as in the objects and provisions of the proposed laws, is a settled question. In Wolfe et als. v. McCaull, Clerk, & c., 76 Va., Judge Christian, in delivering the opinion of this court, says: " To enact laws or to declare what the law shall be, is legislative power; to interpret law--to declare what law is or has been --is judicial power. The power to declare what is the law of the state, is delegated to the courts. The power to declare what the law is, of necessity involves the power to declare what acts of the legislature are, and what acts of the legislature are not laws. "

In Gardner v. The Collector, 6 Wall. 499, the question of the power of a court of law to determine when an act of congress became a law, or as to the existence of a law, was affirmed by the supreme court of the United States. (See also Town of South Ottowa v. Perkins, 94 U.S. 260; Cooley's Com. Lim. 94, side page).

The claim of right on which the relator bases his application for the exercise of the coercive power of this court, in this case, is that, as a citizen of Virginia, he is entitled, in common with other...