Woodall v. Darst

CourtSupreme Court of West Virginia
Writing for the CourtWILLIAMS
Citation71 W.Va. 350,77 S.E. 264
PartiesWOODALL. v. DARST, State Auditor.
Decision Date26 November 1912

77 S.E. 264
71 W.Va.
350

WOODALL.
v.
DARST, State Auditor.

Supreme Court of Appeals of West Virginia.

Nov. 26, 1912.


Rehearing Denied Jan. 6, 1913.

(Syllabus by the Court.)

1. Statutes (§ 32*)—Appropriation Bills— Veto—Power of Governor.

Syllabus in May v. Topping, 65 W. Va. 656, 64 S. E. 848, reaffirmed.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. § 35; Dec. Dig. § 32.*]

2. Mandamus (§ 15*)—Issuance of Warrant — State Auditor — Defenses — Constitutionality of Appropriation—Objection.

In a mandamus proceeding to compel the state auditor to draw his warrant upon the treasurer in favor of a person to whom the Legislature has appropriated money, the auditor has the right to raise the constitutionality of the appropriation either by demurrer and motion to quash the alternative writ, or by answer.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 47, 49; Dec. Dig. § 15.*]

3. States (§ 119*)—State Funds—Appropriation—Private Purposes—Moral Obligation.

The Legislature is without power to levy taxes or appropriate public revenues for purely private purposes; but it has power to make any appropriation to a private person in discharge of a moral obligation of the state, and an appropriation for such purpose is for a public, and not a private, purpose.

[Ed. Note.—For other cases, see States, Cent. Dig. § 118; Dec. Dig. § 119.*]

4. States (8 119*)—Fiscal Management — Appropriation—Injury to Militiamen.

The Legislature has power to provide for compensation to members of the national guard, who may be injured while performing any duty, lawfully ordered by their superior officer; and such a provision by general statute creates a. moral obligation on the state to a soldier who enlists, and is afterwards injured while performing a lawfully ordered duty, and who is not at fault.

[Ed. Note.—For other cases, see States, Cent. Dig. § 118; Dec. Dig. § 119.*]

5. Militia (§ 11*)—Militiamen—Injuries-Statutes.

Section 47, c. 18, Code 1906, embraces the case of a member of the national guard who is injured while going to the place of annual encampment, and who is not at fault when injured.

[Ed. Note.—For other cases, see Militia, Cent Dig. § 22; Dec. Dig. § 11.*]

6. Constitutional Law (§ 70*) — Appropriation—Public of Private Purposes-Power of Courts.

Whether an appropriation is for a public, or a private, purpose is a judicial question; but, if it does not clearly appear from the act of appropriation that it is for a purely private purpose, the court cannot so decide. If any doubt exists as to whether it is for a public or a private purpose, the court must uphold the legislative act.

[Ed. Note.—For other cases, see Constitutional Law, Cent Dig. §§ 129-132, 137; Dec Dig. § 70.*]

7. Constitutional Law (§ 70*)—Special of General Law — Legislative Determination.

A fact once determined by the Legislature, and made the basis of an act, is not thereafter open to judicial investigation.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. §§ 129-132, 137; Dec. Dig. § 70.*]

8. Statutes (§ 76*) — Special or General Act—Legislative Determination.

Whether a special act or a general law is proper, is generally a question for legislative determination; and the court will not hold a special act void, as contravening section 39, art. 6, of the state Constitution (Code 1906, p. lxii), unless it clearly appears that a general law would have accomplished the legislative purpose as well.

[Ed. Note.—For other cases, see Statutes, Cent. Dig. §§ 77y2

Petition for mandamus by A. W. Woodall to compel the issue of an Auditor's warrant under a legislative appropriation, to which John S. Darst, State Auditor demurred. Writ awarded.

Cato & Bledsoe, of Charleston, for petitioner.

Wm. G. Conley and Frank Lively, both of Charleston, for respondent.

WILLIAMS, J. This is a mandamus proceeding to compel the auditor to issue his warrant in favor of relator upon the treasurer for $2,500 which was appropriated out of the state revenues by an act of the extraordinary session of the Legislature which convened February 23, 1907. The appropriation to him was included in the general appropriation act, entitled "A bill making appropriations of public money to pay general charges upon the treasury." So much of the act as relates to the appropriation made to relator reads as follows: "For A. W. Wood-all, member of Co. M., 2nd Regiment West Virginia National Guard, injured while on duty going to State Encampment at Parkers-

[77 S.E. 265]

burg, August 3rd, one thousand nine hundred and three, two thousand five hundred dollars."

Respondent demurred to, and answered, the alternative writ. His answer avers that the certified copy of the general appropriation bill furnished to him by the keeper of the rolls, and by the clerk of the senate, contained no item of appropriation to relator, and also that the printed acts passed by the Legislature at the extraordinary session of 1907, did not contain any item of appropriation in his favor. He further avers that he does not know whether the appropriation in favor of relator was constitutionally passed or not, and calls for proof of that fact.

The Legislature was convened by the Governor in extraordinary session on the 23d of February, 1907, and adjourned on the 5th of March, 1907. It appears from the journals of the two houses that the general appropriation bill was passed on the 5th day of March, 1907, and placed in the hands of the Governor on that day, and that the Legislature also adjourned on that day sine die. The appropriation to relator appears in the enrolled bill as passed by the Legislature. The Governor disapproved this particular item on the 9th day of March, 1907, which was within five days after the bill came to his hands, but after the Legislature had adjourned. Until recently it was generally supposed that the Governor had the power, and the constitutional right, to veto any particular item in the general appropriations bill, within five days after the act was placed in his hands, notwithstanding the Legislature may have adjourned before his right of veto could be exercised. Such had been the practice of the Governor and of his predecessors in office, and such was their interpretation of the constitutional right of the executive. The keeper of the rolls, supposing the Governor's disapproval of the appropriation had the effect to defeat it. did not copy it into the certified copy of the appropriations bill which he furnished to the auditor, nor was it published as a part of the printed acts passed at that session of the Legislature. But we have recently decided, in May v. Topping, 65 W. Va. 656, 64 S. E. 848, that the Governor is prohibited by the Constitution from vetoing a general appropriations bill, or any item in it, unless he communicate his reasons therefor to the Legislature before its adjournment. The effect of this holding is that the Governor must veto an appropriation bill, or any particular item of it, before the Legislature adjourns, or not at all. The Legislature may, by adjourning immediately after the passage of an appropriation act, defeat the Governor's right of veto. Still it must not be supposed that it would thus purposely defeat the right, which is to be exercised in a particular manner, conferred by the Constitution upon a co-ordinate branch of the government. According to our holding in that case, which we still adhere to as correctly interpreting the Constitution in relation to the Governor's right of veto of an appropriation bill, the veto in the present case was ineffectual to defeat the passage of the special appropriation in favor of relator.

It is urged by counsel for respondent that the appropriation is unconstitutional for the reason that it is made for a purely private purpose, that it was a mere gift to Woodall, and that the Legislature was without constitutional right or power to make private donations out of the public treasury. This is unquestionably true, if the public had no interest in the appropriation. The law is too well settled to require an extended argument to the effect that the Legislature can levy taxes, and appropriate public revenues, only for public purposes. The power to tax is conferred upon the Legislature to be used only for the public. It cannot be exercised solely in the interest of a private person or enterprise, notwithstanding there may be no express inhibition on the Legislature. 1 Cooley on Con. Lim. 181-185. The right of the Legislature to appropriate the public funds is no greater than its right to tax. 1 Cooley, Con. Lim. 184. The limitation upon the Legislature requiring it to apply public revenues to public purposes only is to be implied from the very nature of free government.

In the case of Loan Ass'n v. Topeka, 20 Wall. 655, at page 663 (22 L. Ed. 455), Justice Miller, speaking for the court on the subject of the rights of the individual to-be exempt from taxation except it be for a public purpose, says: "There is no such thing in the theory of our governments, state and national, as unlimited power in any of their branches. The executive, the legislative, and the judicial departments are all of limited and defined powers. There are limitations of such powers which arise out of the essential nature of all free governments; implied reservations of individual rights, without which the social compact could not exist, and which are respected by all...

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102 practice notes
  • Brouzas v. City of Morgantown, No. 10944
    • United States
    • Supreme Court of West Virginia
    • November 25, 1958
    ...[144 W.Va. 13] Berry v. Fox, 114 W.Va. 513, 172 S.E. 896; Lemon v. Rumsey, 108 W.Va. 242, 150 S.E. 725; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A.,N.S., 83, Ann.Cas.1914B, By Section 8(a), Article 2, Chapter 126, Acts of the Legislature, 1933, Regular Session, the c......
  • State ex rel. Appalachian Power Co. v. Gainer, Nos. 12446
    • United States
    • Supreme Court of West Virginia
    • July 13, 1965
    ...once determined by the Legislature, and made the basis of an act, is not thereafter open to judicial investigation.' Woodall v. Darst, 71 W.Va. 350, pt. 7 syl., 77 S.E. 264, 44 L.R.A., N.S., 83. A legislative determination of what is a public purpose will not be interfered with by the court......
  • State ex rel. Cooper v. Tennant, Nos. 11–1405
    • United States
    • Supreme Court of West Virginia
    • July 20, 2012
    ...appears that a general law would have accomplished the legislative purpose as well.’ Point 8 Syllabus, Woodall v. Darst, 71 W.Va. 350 [77 S.E. 264, 80 S.E. 367 (1965) ].” Syl. Pt. 1, Hedrick v. County Court, 153 W.Va. 660, 172 S.E.2d 312 (1970). 10. The West Virginia House of Delegates redi......
  • State ex rel. Cox v. Sims, No. 10588
    • United States
    • Supreme Court of West Virginia
    • June 26, 1953
    ...obligation of the State, it is without power to appropriate public revenue for a purely private purpose. Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A.,N.S., 83, Ann.Cas.1914B, 1278; State ex rel. Cashman v. Sims, 130 W.Va. 430, 43 S.E.2d 805, 172 A.L.R. 1389; State ex ......
  • Request a trial to view additional results
102 cases
  • Brouzas v. City of Morgantown, No. 10944
    • United States
    • Supreme Court of West Virginia
    • November 25, 1958
    ...[144 W.Va. 13] Berry v. Fox, 114 W.Va. 513, 172 S.E. 896; Lemon v. Rumsey, 108 W.Va. 242, 150 S.E. 725; Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A.,N.S., 83, Ann.Cas.1914B, By Section 8(a), Article 2, Chapter 126, Acts of the Legislature, 1933, Regular Session, the c......
  • State ex rel. Appalachian Power Co. v. Gainer, Nos. 12446
    • United States
    • Supreme Court of West Virginia
    • July 13, 1965
    ...once determined by the Legislature, and made the basis of an act, is not thereafter open to judicial investigation.' Woodall v. Darst, 71 W.Va. 350, pt. 7 syl., 77 S.E. 264, 44 L.R.A., N.S., 83. A legislative determination of what is a public purpose will not be interfered with by the court......
  • State ex rel. Cooper v. Tennant, Nos. 11–1405
    • United States
    • Supreme Court of West Virginia
    • July 20, 2012
    ...appears that a general law would have accomplished the legislative purpose as well.’ Point 8 Syllabus, Woodall v. Darst, 71 W.Va. 350 [77 S.E. 264, 80 S.E. 367 (1965) ].” Syl. Pt. 1, Hedrick v. County Court, 153 W.Va. 660, 172 S.E.2d 312 (1970). 10. The West Virginia House of Delegates redi......
  • State ex rel. Cox v. Sims, No. 10588
    • United States
    • Supreme Court of West Virginia
    • June 26, 1953
    ...obligation of the State, it is without power to appropriate public revenue for a purely private purpose. Woodall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A.,N.S., 83, Ann.Cas.1914B, 1278; State ex rel. Cashman v. Sims, 130 W.Va. 430, 43 S.E.2d 805, 172 A.L.R. 1389; State ex ......
  • Request a trial to view additional results

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