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

This Court by a vote of three to two of its members is of the opinion that an act of the Legislature, considered twice by both houses and reenacted in opposition to the Governor's veto, is unconstitutional and of no effect. The anomaly of the situation does not need to be emphasized.

One of the most firmly established principles of statutory construction is that it is the duty of a Court, if reasonably possible, to construe and interpret an enactment of the law-making body of the same sovereignty so as to sustain its constitutionality. Neither the political nor the practical effect of the enactment should be considered. To my mind the majority opinion is a complete departure from this fundamentally essential rule. I do not think that it is necessary to measure an act of the Legislature covering a designated class of persons who may not be appointed to a state office, as either an attack upon the Governor's appointive power or an unwarranted derogation of the privilege of a citizen to hold office. At this time, either is to attribute a certain degree of viciousness as a part of the purpose of both the Senate and the House of Delegates. On the other hand, if the act is looked upon as a general measure to prescribe necessary qualifications governing the eligibility of all who hold certain appointive offices, the only question to be determined remaining, is its reasonableness. That is to be presupposed until the enactment under consideration is shown to be capricious or arbitrary.

Of course, the Legislature created the office of member of the Board of Control, as it does, directly or indirectly, all state offices not created by the Constitution. That being so, it follows that the Legislature could abolish all offices it had created for reasons appearing to it to be sufficient. It could also, in the act creating any office, prescribe the requirements of eligibility, and it is very clear to my mind that if the Legislature, in each act creating a public office, had said that a person whose confirmation had been rejected by the Senate should not be eligible, that provision in each act would have been held constitutional. If that be true of separate acts creating each office, it is likewise true of a general act prescribing the same general qualification for certain offices. I do not see, when the act is looked upon as one defining and fixing the fitness, ability, reputation and so forth required to hold certain important public offices, why it should be held unreasonable, capricious or arbitrary. The Legislature, of course, is the first and primary judge of the reasons which underlie its course of conduct. It might very well be that the two houses of the Legislature reached the conclusion that a person whose appointment to a public office had been refused confirmation by the Senate, if appointed during a recess to another public office without that confirmation, would be looked upon by the public as a misfit, and that the loss of prestige so suffered would detract from his ability to discharge his public duties. There are other plausible reasons which could be assigned as justifying the enactment, if that were necessary. Had the Legislature the power in the creation of an office to impose the provision in question as a part of the initial requirement of eligibility, to my mind it follows much more strongly that the Legislature could, instead of amending each act creating a state office and thus confining it clearly to the question of eligibility, prescribe it as a condition to the Governor's exercising his appointive power in recess, free from the requirement that the Senate confirm, as required by the Legislature. Certainly, its control over the manner of filling recess vacancies coincides in scope with its power to initially prescribe eligibility. If the Legislature is exercising its constitutional power of standardizing eligibility to public office, to my mind, the act should stand no matter how it is labeled.

The reasoning of the majority opinion that the effect of a rejection of confirmation by the Senate, because partly provided for by the Constitution, under the maxim expressiounius est exclusio alterius, by implication prohibits the Legislature from adding to its effect, to my mind, is clearly a misconception of the basis of legislative power. Under our system, our Constitution is not a grant of legislative power; if it were, the maxim might apply. But our Constitution is a restriction of the power of our Legislature and restrictions of power are not to be based upon other than express language and unavoidable implication. In order to be recognized they must be inevitable. But the question is not new, so it need not be discussed at length. This Court has said: "The general powers of the legislature are almost plenary. It can legislate on every subject not interdicted by the constitution itself". State Road Commission v. County Court, 112 W. Va. 98, 163 S.E. 815. See also Stateex rel. Thompson v. McAllister, 38 W. Va. 485, 488,18 S.E. 770, 24 L.R.A. 343; State v. Dent, 25 W. Va. 1, 19. In the Road Commission case cited above at page 103 will be found a discussion of the maxim expressio unius. For a discussion as to its use in construing constitutional provisions relating to the Legislature, see Pine v. Commonwealth, 121 Va. 812,93 S.E. 652.

The application of Section 9, Article VII, of our Constitution, to my mind, is quite plain. The Governor having no inherent appointive power, as far as recess vacancies are concerned, is granted by the Constitution only the right to "fill such vacancy, until the next meeting of the Senate, * * *". This vacancy occurred in May, 1942, and the next meeting of the Senate followed. After both occurrences the Governor undertook to appoint. Both of the constitutional provisions are for the purpose of seeing that the executive department is not hampered by recess vacancies, and that its entire functions are at all times promptly exercised. This duty rests upon the State's Chief Executive. If, in his judgment, the vacancy need not be filled before "the next meeting of the Senate", certainly it is no imposition to continue the operation of that conclusion until the Senate next convenes or is called together by the Governor. An officer unnecessary in one recess, is ordinarily not indispensable in the following recess, but if the office must be filled, that may be done without what to my mind is plainly adding to the Governor's constitutional powers.

As to the inferred impropriety involved in this Court's noticing that the vacancy on the Board of Control had existed prior to the last regular session of our Legislature for the reason that that fact did not appear in the petition nor in the respondent's reply and was shown by stipulation only, I wish to say that I regard it as an unfortunate misapplication of the technical rules of common law pleading to a mandamus proceeding. I say this realizing, of course, that mandamus is now a proceeding that partakes of the nature of a private remedy rather than the exercise of prerogative. Nevertheless, there are some characteristics of its former self that it has not lost, and among them is basing the Court's conclusion in granting or declining the peremptory writ upon the actual realities to the extent that they are ascertainable, particularly those that are matters of common knowledge. A great deal could be said concerning the nature of the present mandamus proceeding. This is altogether unnecessary to my mind, due to the fact that in this State it is largely governed by fact, and we are not powerless to inquire nor are we required to pass upon the matters involved according to an incomplete showing made by the pleadings. Code, 53-1-8, provides: "The writ peremptory shall be awarded or denied according to the law and the facts of the case * * *". In some instances, as here, the commonly known and undisputed "facts of the case" cannot be ascertained entirely from the allegations of the pleadings, and well known relevant matters the Court certainly should not purposely disregard. I look upon the stipulation as being unnecessary, and the result of a course pursued by one of the judges of this Court, without objection, through an abundance of precaution. The approximate time of a vacancy in one of the principal executive offices of this State is unquestionably a matter of public concern and a fact of which this Court, I believe, would be required to take judicial notice. I do not see how judicial vision can be defended if we ignore it.

As to the title to the act not covering its subject matter relating to eligibility, but confining it to the appointive power of the Governor, I believe that a casual reading of that part of the act appearing in the majority opinion will dispel all questions of that sort. Under our cases a distinction is drawn between an amendatory and an original act. We are not dealing with an original act here. The title refers to the chapter, article, and section of the Code to be amended. A reading of that section before the amendment shows quite plainly that it does define eligibility to public offices, the appointment to which requires the confirmation of the Senate. A glance at the amending act shows that it does exactly that. No more: no less. I see no difficulty created by the title. If the original act had a good title — and it had — the amending act needed no more than an accurate reference. That it had. Laing v. Fox, 115 W. Va. 272, 283, bottom,175 S.E. 354, and cases there cited.