State Ex Rel. Downey v. Sims , 125 W. Va. 627 ( 1943 )

On the 30th day of March, 1943, the Governor of the State, in vacation of the Senate, in regular form, appointed William W. Downey to fill a vacancy then existing in the membership of the Board of Control. Downey, on the following day, qualified as such by taking the oath and giving the bond required by law, and thereupon entered on the performance of his duties as a member of the Board. In due course the Board by its proper officer made requisition on Edgar B. Sims, the Auditor of the State, for the sum of Thirteen Dollars and Forty-four Cents ($13.44), as the amount due to Downey as his salary for the one day in March which he had served, as based on the regular salary of the office, Five Thousand Dollars ($5,000.00) per year. This requisition was duly approved as required by law by the State Director of the Budget. The Auditor, however, declined and refused to honor the requisition by a letter, directed to the Board, in which he said:

"I have your requisition for the payment of compensation of Honorable W. W. Downey, Member of the State Board of Control, for March 31, 1943, being one day, in the sum of $13.44.

I have knowledge of the fact that Mr. Downey was appointed by the Governor as a member of the West Virginia Liquor Control Commission and that the appointment was rejected by the Senate at the 1943 session of the Legislature, and that Mr. Downey was appointed as a member of the Board of Control after the adjournment of the 1943 Legislature.

Senate Bill No. 22, passed February 16, 1943, and effective from passage, provides:

'No person whose nomination for office has been rejected by the Senate * * * shall * * * be appointed, during the recess of the Senate in which his nomination was rejected, to any other office the nomination for which must be submitted to the Senate for confirmation.'

Of course you are advised that the appointment by the Governor of a member of the Board of Control must be submitted to the Senate for confirmation.

Mr. Downey's appointment is clearly within the ban of Senate Bill No. 22. I understand that there is a question as to the constitutionality of the bill. I do not undertake to pass on the question, but I am definitely of the opinion that the facts presented make out a case proper for judicial determination.

I am therefore declining to honor the requisition."

It is thus seen that the Auditor based his rejection of the requisition solely on the provisions of Senate Bill No. 22, and that he recognized that its constitutionality was questioned.

Thereupon Downey, as relator, filed in this Court a petition, duly verified, setting up these facts and charging that said Senate Bill No. 22 (Chapter 52, Acts of Legislature 1943, not yet published) is unconstitutional; and praying for a writ of mandamus requiring the Auditor to approve for payment the requisition for his salary. On this petition we issued a rule directing the Auditor to show cause, if any he could, why the writ should not be awarded. By way of return to this rule the Auditor filed a demurrer and answer to the petition, by which nothing in the petition was controverted except the charge that Senate Bill No. 22 is unconstitutional. The answer adds no fact to the record except the showing that the relator had, in fact, been appointed by the Governor and rejected by the Senate as a member of the Liquor Control Commission. There is, therefore, no issue whatever between the relator and the respondent except the legal question of whether Senate Bill No. 22 is constitutional. On this issue, and nothing else, the case has been briefed, argued and submitted. We, accordingly, accept the issue as made by the parties and shall consider and adjudicate this question alone.

Certain principles and rules of procedure in mandamus cases operate to guide us in our deliberations. Mandamus is a proper proceeding to enforce the payment of public salary or wages.State ex rel. Goshorn v. Johnson, 102 W. Va. 629, 135 S.E. 899; State ex rel. Sprague v. CountyCourt, 93 W. Va. 481, 117 S.E. 135; State ex rel. Henson v.County Court, 93 W. Va. 316, 116 S.E. 704; State ex rel. Hall v. County Court, 82 W. Va. 564, 96 S.E. 966. A relator in mandamus for any purpose must show a clear legal right to the relief he seeks. Hall v. Stepp, 105 W. Va. 487,143 S.E. 153; State ex rel. Jones v. Kuhn, 94 W. Va. 415,120 S.E. 888; State ex rel. Miller v. City of Spencer, 93 W. Va. 516,117 S.E. 226; State ex rel. Qualls et al. v. Board ofEducation, 92 W. Va. 647, 115 S.E. 726; State ex rel. Smith v.County Court, 78 W. Va. 168, 88 S.E. 662, 20 A.L.R. 1030. This showing, however, may be by a verified petition if its allegations are sufficient and not controverted. Doolittle v.County Court, 28 W. Va. 158; Fisher v. City of Charleston,17 W. Va. 595; 35 Am. Jur., Mandamus, section 358, p. 100. It will be presumed that one appointed to office by the Governor is legally qualified therefor. Booten v. Pinson, 77 W. Va. 412,89 S.E. 985, L.R.A. 1917A, 1244; Swinburn v. Smith et al., 15 W. Va. 483. In showing his right to relief a relator in mandamus may challenge the constitutionality of a statute adverse to his claim. Bridges v. Shallcross, 6 W. Va. 562, Exparte Stratton, 1 W. Va. 304; Welch v. Swasey, 214 U.S. 91,29 S. Ct. 567, 53 L. Ed. 923; Von Hoffman v. City of Quincy, 4 Wall. (U.S.) 535, 18 L. Ed. 403. Except under special circumstances a prima facie showing of legal right to relief entitles the relator to the writ of mandamus. State ex rel. Looney v.Carpenter, 106 W. Va. 170, 145 S.E. 184; State ex rel. Hall v.County Court, 87 W. Va. 437, 105 S.E. 693; Griffith v. CountyCourt, 80 W. Va. 410, 92 S.E. 676; Trunick v. Town ofNorthview, 80 W. Va. 9, 91 S.E. 1081; Kline v. McKelvey, 57 W. Va. 29,49 S.E. 896. Indeed, there seems to be no disagreement between counsel that the petition is sufficient and that the relator is entitled to the peremptory writ he seeks if Senate Bill No. 22 is unconstitutional.

The section of the statute as it stood before the passage of Senate Bill No. 22 read as follows:

"In case of a vacancy, during the recess of the senate, in any office which is filled by appointment by the governor and confirmation by the senate, the governor shall, by appointment, fill such vacancy until the next meeting of the senate, when the governor shall make a nomination for such office, and the person so nominated, when confirmed by the senate (a majority of all of the senators elected concurring by yeas and nays), shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person shall be so appointed during the recess of the senate who has been nominated to and rejected by the senate for the same office. * * *" Code, 1931, 3-10-11.

Senate Bill No. 22 attempted to amend the last sentence quoted so as to read as follows:

"No person whose nomination for office has been rejected by the senate shall be again nominated for the same office during the session in which his nomination was so rejected, unless at the request of the senate, nor shall he be appointed to the same office during the recess of the senate, nor shall he be appointed, during the recess of the senate in which his nomination was rejected, to any other office the nomination for which must be submitted to the senate for confirmation."

The constitutional provisions relating to the subject of gubernatorial appointments and senatorial consent to or rejection thereof are Sections 8 and 9 of Article VII, Constitution of West Virginia, which read:

"8. The Governor shall nominate, and by and with the advice and consent of the Senate, (a majority of all the Senators elected concurring by yeas and nays) appoint all officers whose offices are established by this Constitution, or shall be created by law, and whose appointment or election is not otherwise provided for; and no such officers shall be appointed or elected by the Legislature.

"9. In case of a vacancy, during the recess of the Senate, in any office which is not elective, the Governor shall, by appointment, fill such vacancy, until the next meeting of the Senate, when he shall make a nomination for such office, and the person so nominated, when confirmed by the Senate, (a majority of all the Senators elected concurring by yeas and nays) shall hold his office during the remainder of the term, and until his successor shall be appointed and qualified. No person, after being rejected by the Senate, shall be again nominated for the same office, during the same session, unless at the request of the Senate; nor shall such person be appointed to the same office during the recess of the Senate."

It will be seen at once, therefore, that the Constitution and the section of the statute involved, before the latter's attempted amendment, agree absolutely in forbidding only that one nominated by the Governor and rejected by the Senate shall not be appointed by the Governor in vacation of the Senate to the same office; while Senate Bill No. 22 attempts to broaden this prohibition so as to include not only the same office but all other offices, nominations to which must be consented to by the Senate. Can the effect of the Senate's rejection as expressly provided in the Constitution be thus enlarged by an Act of the Legislature? We think it cannot.

In Isaacs v. Ballot Commissioners, 122 W. Va. 703,12 S.E.2d 510, 512, Judge Maxwell observed that, "The right of a citizen to hold office is the general rule; ineligibility the exception. Courts are hesitant to take action resulting in deprivation of the privilege to hold office, except under clear and explicit constitutional or statutory requirement". This statement is quoted and approved in State ex rel. Thomas v.Wysong, 125 W. Va. 369, 24 S.E.2d 463. It indicates the correct approach to the problems to be solved in the present case.

The Constitution provides exactly what the Senate can do with regard to gubernatorial nominations to office: It may either consent to or reject the nominee for the particular office to which he has been nominated. This is the full maximum of the grant of power of the Senate over appointments by the Governor. And this grant of a specific and clearly defined power is, by implication equally potent, a denial of any other power in the premises. The Constitution, however, goes further and prescribes an indirect result which shall ensue from a senatorial rejection: The nominee shall not be appointed by the Governor to the same office in vacation of the Senate. Here, again, the Constitution states fully and clearly the exact effect of the rejection and thereby impliedly says that it shall have no other or further effect. The Senate's rejection shall have this precise effect and no more. Again, the direct and inevitable result of this constitutional provision is to restrict, in some degree, the power of the Governor to appoint to office. By expressing exactly the limit of this effect on the Governor's appointing power, the Constitution impliedly declares that there shall be no other effect. Finally, from the viewpoint of the rejected nominee, the same reasoning is legitimate. By the Constitution he is declared ineligible for appointment to the same office in vacation of the Senate, which is legally equivalent to a constitutional declaration that his rejection by the Senate shall create no other ineligibility — that his eligibility to all other offices shall remain unchanged.

The principle of construction here applied is so ancient that its beginning cannot be found and is supported by cases which are simply overwhelming in number. Expressio unius est exclusioalterius. This classic maxim applies to all instruments requiring construction by courts — simple contracts, deeds, wills, statutes and constitutions. We have here expressly recognized it. Taylor v. Taylor, 66 W. Va. 238, 66 S.E. 690, 19 Ann. Cas. 414; State v. Gilman, 33 W. Va. 146, 10 S.E. 283, 6 L.R.A. 847. In State v. Gilman, supra, it was applied in determining the constitutionality of a statute. The Constitution then provided that "laws may be passed regulating or prohibiting the sale of intoxicating liquors within the limits of this State". Constitution of West Virginia 1872, Article VI, Section 46. A statute had been enacted by the Legislature making it unlawful for one to "keep in his possession for another spirituous liquors, wine, porter, ale or beer, or any drink of a like nature". Code 1887, Chapter 32, Section 1, as amended by Acts of Legislature 1887, Chapter 29, Section 1. This was held unconstitutional on the ground that the constitutional power to pass laws regulating the sale of intoxicating liquors by implication prohibited the power to make any other law in regard to the sale of liquors. Judge Snyder in the opinion at page 150 says:

"If the people had not made the provision above quoted a part of the constitution, the legislature would, so far as that instrument is concerned, have had plenary and unrestricted authority to deal with liquors in any manner it chose to do. But the people, by declaring that 'laws may be passed regulating or prohibiting the sale of intoxicating liquors,' according to the principles we have announced, imposed a restraint upon this plenary power. By granting an express authority to the legislature to regulate or prohibit the sale, there is an implied inhibition to the exercise of any authority in respect to that subject which is not embraced in the grant. This rule is simply an application of the old maxim, expressio unius est exclusio alterius, which Lord Bacon concisely explains by saying: 'As exception strengthens the force of a law in cases not excepted, so enumeration weakens it in cases not enumerated.' The express power here given to regulate or prohibit the sale of liquors, unless it was intended to limit the legislative authority, would render this provision of the constitution wholly nugatory and useless; because, as we have seen, without this provision the legislature would have had plenary power over the whole subject. It could not only have legislated in respect to the prohibition and sale of liquors, but in all other respects. It seems to me, therefore, that the purpose and effect of this constitutional provision was and is to restrict and limit the legislative authority to the powers expressly granted therein — that is, to the power to regulate or prohibit the sale of liquors; and, consequently, a legislative act not within the legitimate scope of this express grant, unless it is a fair and reasonable exercise of the police power, must be held unconstitutional and void."

Cases from other jurisdictions are: State ex rel. Green v.Collison, 9 Harr. Del. 245, 197 A. 836. Priest v. City ofWapakoneta, 8 O. O. 439, 32 N.E.2d 869. Robinson v. Moser,203 Ind. 66, 179 N.E. 270; Thompson v. Kay, 124 Tex. 252,77 S.W.2d 201; Wynn v. State ex rel. District Attorney,67 Miss. 312, 7 So. 353; State ex rel. Banker v. Clausen,142 Wash. 450, 253 P. 805.

By express grant of the Constitution the Senate has the specific power to render a person ineligible for appointment by the Governor to a particular office by the simple act of rejecting him for the same office. This result is definite and precisely stated. The Senate has from the Constitution no power to inflict upon him any greater ineligibility and the Constitution in affixing this result to his rejection by clear implication provided that no other result should follow. The people in enacting the Constitution clearly meant to give this effect and no other to the rejection of a gubernatorial nominee by the Senate.

The respondent would have us hold that the amendment made by Senate Bill No. 22 is in legal effect merely a legislative establishment of qualifications (or disqualifications) for interim appointees by the Governor. The Legislature may, of course, establish reasonable qualifications for any office which it creates. The Code as it now stands shows many instances of the exercise of this power. This Court has held such legislative acts proper and valid. Booten v. Pinson,supra; McMillin v. Neeley, 66 W. Va. 496, 66 S.E. 635; Kahle v.Peters, 64 W. Va. 400, 62 S.E. 691; State ex rel. Thompson v.McAllister, 38 W. Va. 485, 18 S.E. 770, 24 L.R.A. 343. And the amendatory statute in question may in some aspects be somewhat in the nature of affixing negatively a qualification for office. But this effect is only remote, indirect and incidental. Its immediate and major purpose is something else. The statute amended relates wholly to the power and process of appointing to office; and the amendment occupies the same place in the Code. The constitutional provisions on which both are based are found in the article of the Constitution which defines the powers of the executive. The very place where the amendment is inserted in the orderly arrangement of our statutory law is some indication of its legislative purpose.

But the substance of the amendment clearly manifests that it does not in any degree relate to the capacity or ability of a citizen to hold or perform the duties of public office in general, or any public office in particular. The Senate's power to reject a gubernatorial nominee has nothing to do with his qualification for the office. That right and power is plenary and absolute, for reason or without reason. Consequently, a senatorial rejection cannot in any sense be construed as a finding by that body of a want of qualification for the specific place or any other and does not imply that his qualifications were even considered. Certainly it cannot be accepted as in any degree like unto a conviction of felony in its effect on the nominee's eligibility to another office. The inhibition against appointment in vacation to the same office, of course, is necessary to make a senatorial rejection of any effect whatever. But it does not, in reason or at law, have any bearing on his capacity or ability to serve in any of the other scores of positions to which appointment is to be made by the executive with the consent of the Senate. The bill in question clearly indicates that the Legislature did not regard this rejection by the Senate as properly constituting any finding on the nominee's incapacity or disqualification for the equally numerous positions to which he may be appointed without the Senate's consent, or to the greater number of more important offices to which he may be elected by the people. We thus see that the Legislature was concerning itself, not with qualifications for office, but with the Governor's power to appoint in vacation of the Senate without its consent, one whom that body had found unacceptable for another wholly different position. The very form of the amendment, its substance, and its place in the code, agree in the indication of its character and purpose. Its passage by both houses of the Legislature by overwhelming majorities, the refusal of the Governor to give it his approval, and the immediate repassing of the bill over this veto, all of which we may notice, at least, do not detract from this conclusion.

If doubt still remains as to the character of this amendment, we need only look to its title: "A Bill to amend and reenact section eleven, article ten, chapter three of the code of West Virginia, one thousand nine hundred thirty-one, relating to vacancies in office to be filled by the governor by and with the advice and consent of the senate." There is no possibility of construing this title as relating to the subject of qualification for any office. Even if the Act unequivocally attempted to establish such qualifications, the provision would clearly be outside its title and for that reason alone unconstitutional.

We hold, therefore, that Senate Bill No. 22 in so far as it purports to prohibit a person rejected by the Senate for an office to which he has been nominated by the Governor, from being appointed by the Governor in vacation of the Senate to another office, nomination to which must be consented to by the Senate is unconstitutional. The demurrer and answer of the respondent are, therefore insufficient for any purpose in this case and the peremptory writ will be awarded as prayed for.Doolittle v. County Court, supra. Fisher v. City of Charleston,supra. Bridges v. Shallcross, supra.

After the submission of this case, but at the suggestion of a member of the Court made during oral argument, there was lodged among the papers herein, but not made a part of the record by any order, a stipulation by counsel showing that the vacancy to which the relator has been appointed began May 24, 1942, between which time and the date of the present appointment the Senate has been in regular session and adjourned. Upon mature consideration we find the facts thus attempted to be stipulated are not proper to be considered on any issue evolved in this case, and accordingly the stipulation is not filed or considered.

Writ awarded.