Woodall v. Darst Auditor.
| Citation | 71 W.Va. 350 |
| Court | Supreme Court of West Virginia |
| Decision Date | 26 November 1912 |
| Parties | Woodall v. Darst Auditor. |
Syllabus in May v. Topping, 65 W. Va. 656, re-affirmed, (p. 352).
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, (p. 357).
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, (p. 353).
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 officers; 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. (p. 354).
Sec. 47, ch. 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, (p. 353).
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 can not 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. (p. 359).
A fact once determined by the Legislature, and made the basis of an act, is not thereafter open to judicial investigation, (p. 359).
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 sec. 39, Art. vi. of the State Constitution, unless it clearly appears that a general law would have accomplished the legislative purpose as well, (p. 360).
Petition for mandamus by A. W. Woodall to compel the issne of an Auditor's warrant under a legislative appropriation, to which John S. Darst, State Auditor demurred.
Writ awarded.
Cato & Bledsoe for petitioner.
William G. Conley, Attorney General, and Frank Lively, Assistant Attorney'"General, for respondent.
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. "Woodall, member of Co. M., 2nd Regiment West Virginia National Guard, injured while on duty going to State Encampment at Parkersburg, August 3rd, one thousand nine hundred and three, two thousand five hundred dollars."
Bespondent 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 23rd 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 appropriation 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. Ya. 656, 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 unquestion- ably 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 can not 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 on 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 Assn. v. Topeka, 20 Wall. 655, 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, at page 663 says:
"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 governments entitled to that name."
The following cases are all in point, and all hold that the legislature is without power to levy taxes or make appropriations of public moneys for a purely private purpose: Fallbrook Ir. Dist. v. Bradley, 164 U. S. 112; Stridden v. Mining Co., 200 U. S. 527; Coates v. Campbell, 37 Minn. 498; Matter of Tuthill, 163 N. Y. 133; Dodge v. Mission Township, 107 Fed. Rep. 827; Sharpless V. Mayor, Phil., 21 Pa. 147; and 27 A. & E. E. L. 626, and numerous cases cited in note.
1 Cooley, Con. Lim., 184.
But we think the appropriation to relator was made in discharge of a moral obligation upon the state to compensate him for the injury which he received while on duty in going to the state encampment, and growing out of a previous act of the legislature, to-wit, sec. 47 of the military code, wherein the legislature declared that it would make provision for any member of the national guard "who shall without fault or neglect on his part be wounded or disabled while performing any lawfully ordered duty." And, having thus previously held out an inducement to relator to enter the military service, it became the...
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