Co-Operative v. Com'r.

In my judgment there should be an affirmance of this case solely on the ground that on the merits of the case as made before the Commissioner of Agriculture, the appellant has failed to show any error in the Commissioner's decision that it was not entitled to a permit to operate a public market at the place intended. In my judgment, it is not legally possible for the appellant to raise, or for this Court to consider, the question of the constitutionality of the act under which the appellant's petition was filed and the permit sought. This conclusion, it seems to me, inevitably results from the rule of law, universal so far as I can ascertain, that one who, by a proceeding before a public official, board, or commission, or in court, seeks benefits or privileges provided by a statute cannot, at least, in the same proceeding, question the constitutionality of that statute.

The case of Buck v. Kuykendall, 267 U.S. 307, 45 S. Ct. 324,326, 69 L. Ed. 623, 38 A.L.R. 286, cited and quoted from in the majority opinion does not disagree with this proposition. On the contrary, it expressly affirms it. In that case, Buck petitioned for, and was refused, a certificate for the operation of vehicles for hire in the State of Washington. He then instituted a suit in the proper District Court of the United States to enjoin the state officials from interfering with his operation as a carrier. The Supreme Court of the United States, as shown by the excerpt from the opinion, quoted in the majority opinion, held that: "It is true that one cannot, in the same proceeding, both assail a statute and rely upon it." (Italics supplied.) The plaintiff was, indeed, permitted to assert the unconstitutionality of the statute under which he had asked for a permit, but he did it, not in the same proceeding, but in a separate chancery suit.

The Supreme Court of the United States has spoken often on various phases of this question, sometimes in terms less limited than the pronouncement in Buck v. Kuykendall, supra. In the later case of United Fuel Gas Co. v. Railroad Commission ofKentucky, 278 U.S. 300, 49 S. Ct. 150, 152, 73 L. Ed. 390, the plaintiff, after having sought from the Railroad Commission of Kentucky certain relief and been denied, brought suit in the United States District Court to enjoin the commission from interfering with its operation on the ground that the statute creating the commission was unconstitutional. The Court, speaking through Justice Stone, said:

"It is the rule of this Court, consistently applied, that one who has invoked action by state courts or authorities under state statutes may not later, when dissatisfied with the result, assail their action on the theory that the statutes under which the action was taken offend against the Constitution of the United States. * * * The sound discretion which controls the exercise of the extraordinary powers of a federal court of equity should not permit them to be exerted to relieve suitors on such a ground from the very action of state authorities which they have invoked."

It will thus be seen that the Supreme Court of the United States has not adhered to so much of the holding inBuck v. Kuykendall as would say that in order to be estopped a plaintiff or petitioner must have made claim to benefits under the statute in the very proceeding in which he attacks the statute. In the case now at bar, however, we need not go beyond the principle conceded in Buck v. Kuykendall, since the appellant originally sought a certificate in this proceeding under the identical statute which he now says is unconstitutional.

This State has, apparently, recognized the soundness and propriety of this rule. In the case of State v. Jackson, 95 W. Va. 365,121 S.E. 162, 163, a mortgage and discount company had applied to the Commissioner of Banking for a certificate of authority to begin business and had been refused. It thereupon applied to this Court for a writ of mandamus to compel the issuance of the certificate, and argued that the act requiring such certificate was unconstitutional. This Court, in the opinion of Judge Lively, said:

"The pleadings do not raise this constitutional question. The petition does not and could not do so for it asks mandamus to compel the issuance of a certificate of authority under that act. To aver that the act is unconstitutional would be to admit that the petition should be refused, and the writ dismissed. One who asks for a license under an act or receives benefits thereunder is estopped from denying its validity." (Italics supplied.)

The Supreme Court of Virginia is in agreement with this principle. In Purcell v. Conrad, 84 Va. 557, 5 S.E. 545, 549, one who had been denied what he considered adequate relief from a statutory administrative board sought to enjoin the board from interference with the rights he claimed on the ground that the act creating the board was unconstitutional. The court said:

"It is, however, contended, in the second place, that the act of March 4, 1884, is unwarranted by the constitution, * * *." But, manifestly, all this is beside the present case, and cannot be considered on this appeal for two reasons: First, because no such question is raised in the pleadings; and, secondly, because the appellee, having availed himself of the benefit of the statute, and in his bill claiming under it, is estopped in this litigation from contesting its validity, whether it be constitutional or not." (Italics in original report.)

In an earlier case, Roanoke City v. Berkowitz, 80 Va. 616, the city undertook to condemn certain lands and objected to its being required to take the fee instead of an easement therein, on the ground that such requirement of the statute was unconstitutional. The court said:

"But it is unnecessary to dwell upon this point. Clearly, the city cannot be heard to deny the validity of the statute under which it has chosen to proceed."

From a few of the legion of state cases, I will quote. In the case of Fulton Waterworks Co. v. Bear Lithia Springs Co.,47 App. D.C. 437, the constitutionality of a law was attacked, but the court said: "It (appellant) prosecutes this appeal by virtue of the statute which it assails. Its presence here as an appellant is in effect an assertion on its part that the statute is valid. It cannot claim under the statute and at the same time denounce it as an unwarranted exercise of power by Congress." In Luken v. Railway Co., 248 Ill. 377, 94 N.E. 175,178, 140 Am. St. Rep. 220, 21 Ann. Cas. 82, the opinion says: "Under repeated decisions of this court defendant waived the right to question the validity of the statute by prosecuting its appeal to the Appellate Court." In State v. Mayor,207 Wis. 199, 240 N.W. 847, 850, 79 A.L.R. 281, it is said that: "However, relator in seeking on certiorari to have the revocation of its license set aside, and thus to re-establish its license and the resulting privilege, under the ordinance, as a valid enactment, cannot, while thus insisting on the exercise of a privilege by virtue of the ordinance, also assert that the ordinance under which he claims such privilege is invalid." The Supreme Court of Illinois, in Pittsburgh, etc.,Railway Co. v. City of Chicago, 242 Ill. 178, 89 N.E. 1022,1024, 44 L.R.A. (N.S.) 358, 134 Am. St. Rep. 316, says: "As to the constitutionality of the law under which the action is brought, appellant waived that question by prosecuting its appeal to the Appellate Court." In Barnes v. City ofSpringfield, 268 Mass. 497, 168 N.E. 78, 83, the Massachusetts court said: "The petitioners are seeking to have a jury assess their damages in accordance with the provisions of the act authorizing the taking. By the allegations in the petition they have admitted for the purposes of these proceedings the taking, its validity, the regularity of the proceedings, and the constitutionality of the act." In Brady v. Place, 41 Idaho 747,242 P. 314, 316, 243 P. 654, it was announced that: "The weight of authority holds that a party seeking to enforce a statute, or to avail himself of its provisions, may not question its constitutionality." The Supreme Court of Connecticut, inPiccolo v. Town of West Haven, 120 Conn. 449, 181 A. 615, 618, says: "The appellants, having sought relief under the zoning regulations, cannot be heard to question their constitutionality." In Sommerville v. Board of Commissioners,116 Neb. 282, 216 N.W. 815, it was held: "A party invoking the provisions of a statute is not in a position to raise the question of its constitutionality." In Oren v. Swift Company,330 Mo. 869, 51 S.W.2d 59, 60, an employee applied for benefits under a workmen's compensation law. From an adverse award he appealed to the circuit court where he moved to quash the award on the ground that the very sections of the act under which he proceeded were unconstitutional. The court said: "Claimant is not in position to question the validity of the act under which he claims and seeks to enforce a right thereby created, upon the provisions of which he relies and pursuant to the terms of which he filed and prosecuted his claim."

The majority of the Court in the present case apparently concede the correctness and binding character of this general rule, but rely upon an exception thereto, under which it is held that the appellant may be heard, and quote from 11 Am.Jur., Constitutional Law, sec. 124, p. 771, where it is stated that:

"The most important and frequent class of exceptions to the general doctrine of waiver or estoppel to assert the invalidity of a law is that where a statute requires a duty which is mandatory in form, accompanied by penalties for failure to obey its provisions, or is otherwise coercive." (Italics supplied.)

The statute here under review contains no element of a mandatory character. The appellant was not compelled to take out a license. It was not required, in any sense, to conduct a stock market. It never had conducted such a market. The statute merely provided that this appellant, and all others who might elect to conduct a market, must first obtain the certificate by the statute required. This is not in any sense a mandatory statute. Nor is the statute "otherwise coercive." It is true that the appellant is forbidden under a monetary penalty of fifty dollars to conduct a public market without the license required by the statute, but in no case cited in American Jurisprudence to illustrate the exception mentioned, is such a prohibition contested as coercive in the sense in which the word is there used. In fact, in none of the cases so cited has "coercion" been held to condone a plaintiff or petitioner who is asking a privilege under a statute and challenging its validity in the same proceeding. Nor can it be said that the appellant here had no other adequate remedy for testing the constitutionality of the act in question. The reported cases, readily available to the bar, will disclose a variety of ways in which the constitutionality of a statute may be determined without the anomaly and inconsistency of both claiming under and challenging it in one proceeding.

However, since, by the judgment of the other members of the Court, the constitutional question is let into the case, I record my opinion as being in favor of the validity of the statute in question.