State Ex Rel. Morgan v. O'Brien

On October 21, 1948, at a regular term of this Court, the State of West Virginia ex rel. C. R. Morgan, George L. Coyle, George C. Schmidt and George W. Bright, citizens and taxpayers, filed their petition, seeking a writ of mandamus to command D. Pitt O'Brien, Secretary of State of the State of West Virginia, to revoke his certification for submission to the electorate of the State at the general election to be held on November 2, 1948, of a proposed amendment to the Constitution relating to a fifty million dollar bond issue for secondary road improvements. And, on October 27, 1948, this Court, after a hearing on the rule previously issued, entered an order denying the writ prayed for.

The relators' petition states, among other things, that the Legislature, on March 8, 1947, duly and regularly adopted Senate Joint Resolution No. 5 (Acts of the Legislature, 1947, p. 727), by a vote of two-thirds of all the members elected to each house, agreeing to the submission of the proposed amendment authorizing the issuance of State bonds not exceeding fifty million dollars for secondary road purposes; and on the last-mentioned date, duly and regularly passed an enabling act (Acts of the Legislature, 1947, Chapter 143), which was approved by the Governor, providing for the submission of the proposed amendment to the voters. The petition further alleges that Section 6 of the enabling act directs that the Governor shall cause the proposed amendment to be published in some newspaper in every county in the State, in which a newspaper is printed, at least three months before the election, at which the proposed amendment is to be voted on; that Section 2 of Article XIV of the Constitution of West Virginia requires that a proposed amendment be published in some newspaper in every county in which a newspaper is printed, at least three months before such election; that notwithstanding the legislative directive and the constitutional requirement, the Governor did not cause the proposed amendment to be published in every county in which a newspaper is printed at least three months before the general election to be held on November 2, 1948, as he was required to do; and that, in fact, no publication of any kind was made until on or about August 30, 1948, about four weeks after the date on or before which the publication was required by law.

Respondent filed an answer admitting all the facts set forth in the petition, and setting forth what is purported to be a detailed statement of the actual facts concerning the proposed amendment and its publication, which answer denied the conclusion drawn from the facts as set forth in the petition to the effect that, because of the failure of the Governor to publish the proposed amendment to the Constitution, as required by Section 2, Article XIV of the Constitution, and the implementing statute (Chapter 143, Acts of the Legislature, 1947), the delayed publication will not avail for a valid submission of the proposed amendment to the vote of the electorate of the State of West Virginia.

The answer alleges that without any intent or design, but purely through inadvertence, the Governor failed to comply with the provisions in respect to the time of publication; that on August 27, 1948, the Governor caused to be forwarded by registered mail, return receipt requested, to one newspaper printed and published in each county of the State, his proclamation, incorporated in the answer, to the effect that the proposed amendment would be submitted to the voters of West Virginia, at the general election to be held on November 2, 1948, with the request that it be published. This proclamation sets forth that the question of the ratification or rejection of the amendment is proposed in accordance with the provisions of Section 2, Article XIV of the Constitution. The answer further alleges that one newspaper publication was had in each of the following counties on the dates specified: in Kanawha and Marshall, on August 30, 1948; in Cabell, Marion, Mingo, McDowell, Tucker, and Wood, on August 31, 1948; in Fayette, Hampshire, Hardy, Mercer and Webster on September 1, 1948; in Barbour, Braxton, Brooke, Calhoun, Clay, Doddridge, Gilmer, Grant, Greenbrier, Hancock, Harrison, Jackson, Jefferson, Lincoln, Mason, Monongalia, Monroe, Nicholas, Ohio, Pendleton, Pleasants, Pocahontas, Preston, Raleigh, Roane, Tyler and Wetzel, on September 2, 1948; in Berkeley, Lewis, Logan, Morgan, Putnam, Randolph, Ritchie, Upshur, Wayne, Wirt and Wyoming, on September 3, 1948; in Taylor, on September 6, 1948; in Mineral, on September 7, 1948; in Boone, on September 16, 1948; and a second publication, in Lincoln, on September 9, 1948, constituting publication in fifty-four of the fifty-five counties of the State.

The answer further alleges that on August 27, 1948, the Governor forwarded by registered mail, return receipt requested, to the then editor of "The Leader", a newspaper published in Summers County, the proclamation, as in the cases of the other counties, and thereafter, to-wit, on August 28, 1948, received a return receipt postmarked at Hinton, the same being signed Henry E. Kinney, the then editor of the paper, by L. T. Anderson, designated as addressee's agent; that, so far as respondent is informed and believes, Anderson delivered the registered letter to Kinney on August 28, 1948, but shortly thereafter Kinney ceased to be the editor of the paper and left the State for the City of New York; and that publication of the proclamation thereafter failed to receive the attention of anyone connected with that newspaper and publication was not had at any time in Summers County.

The answer further alleges that there was a substantial compliance with the constitutional and statutory provisions relating to publication; and that the whole object, intent and purpose of the required publication is to give notice of the intent to submit a proposed amendment to the Constitution to the voters of the State so that they may have time to consider the same and determine in their own minds whether they would adopt or reject the proposed amendment.

The answer further alleges that, in addition to the newspaper publicity given by the publication of the Governor's proclamation, the proposed bond issue, embraced in the amendment, received widespread publicity in the State from political and newspaper sources; that it was indorsed by both the Republican and Democratic parties at their respective state conventions held on August 14, 1948, the happenings of which conventions received wide newspaper publicity; that the Republican and Democratic candidates for governor and other political speakers discussed the proposed amendment from the political platform in every section of the State; that the proposed amendment has been freely commented upon and discussed from time to time by daily and weekly newspapers published in every county of the State; that circulars and letters relating thereto have been and are being published and delivered in every county and perhaps in every voting precinct; that it has been mentioned and discussed in radio addresses; and that, as a result of the failure of the Governor to cause the proposed amendment to be published at least three months prior to the general election held on November 2, 1948, state-wide publicity was given to the amendment because all of the newspapers published in the State carried stories of such failure, and many of the newspapers and political speakers in every section of the State have repeatedly made reference thereto; and, finally, the action of this Court on October 21, 1948, in granting the rule requiring this respondent to show cause in this proceeding received wide publicity, commencing in the afternoon of the same day by radio announcements and by afternoon newspapers published on that day.

It is alleged in the answer that respondent verily believes that the whole intent, purpose and object of the constitutional and statutory provisions, relating to the time and manner of publication, have been substantially achieved, and that such constitutional and statutory requirements have been substantially complied with.

The relators having demurred to the answer, the factual allegations of the latter must be taken as true. So the newspaper publication requirement not having been literally complied with, we are presented with the questions whether (1) A substantial compliance with the constitutional and statutory provisions as to publication will suffice; and (2) if so, does the answer set up such a substantial compliance as would justify the respondent in certifying to each of the clerks of the circuit courts of the counties of West Virginia, as ex officio chairmen of the ballot commissioners of the counties, respectively, the proposed amendment for submission to the voters at the general election to be held on November 2, 1948?

The order refusing the writ in this case was entered prior to the election on November 2, 1948, and as a result thereof the respondent, the Secretary of State, did not revoke his certificate to the various circuit clerks of the State, and the proposed amendment was submitted to and voted upon at the election held on November 2, 1948. Due to the limited time between the entry of the order and the election, this Court was unable, at the time of the entry of the order, to file an opinion setting forth its reasons for refusing the writ of mandamus prayed for in relators' petition. While some people may have thought that the question before us was whether the State of West Virginia would have, through the constitutional amendment, available the sum of fifty million dollars for secondary roads in the State, the real question here was whether the neglect of an elected public official in failing to comply literally with the provision of Section 6, Chapter 143, Acts of the Legislature, 1947, and Section 2, Article XIV of the Constitution, as to publication, precluded submission of the question to vote.

This Court in Herold v. Townsend, Tax Commissioner, 113 W. Va. 319,169 S.E. 74, is committed to two propositions: (1) That the provision of Section 2, Article XIV of the Constitution as to the three months' publication of a proposed constitutional amendment is mandatory; and (2) that a literal compliance therewith is unnecessary, a substantial compliance being sufficient.

In our opinion, most, if not all, of the provisions of the Constitution are mandatory rather than directory, (1 Carrington, Cooley's Constitutional Limitations, Eighth Edition, 159), and some are so vital to the integrity of the Constitution itself that only a literal compliance therewith will suffice. Thus, the provision of Section 2, Article XIV of the Constitution that a proposed amendment, sought to be made without the use of a convention as provided under Section 1 of Article XIV thereof, must be assented to by two-thirds of the members elected to the Legislature, after being read on three separate days in each house and the proposed amendment, with the yeas and nays thereon, entered on the journals of both Houses; the provision that thereafter it shall be the duty of the Legislature to provide by law, for submitting the proposed amendment to the voters of the State for ratification or rejection at the next general election; and the provision that a majority of the qualified voters, voting on the question at the polls held pursuant to such law, shall be required to ratify the proposed amendment are so vital to the adoption of any constitutional amendment, under Section 2 of Article XIV, that a literal compliance therewith is required.

However, a literal compliance is not required with provisions of the Constitution which, though mandatory in their nature, are essentially procedural and only a part of the machinery or forms for the operation of the amendment of the Constitution. Judge Brewer, later Mr. Justice Brewer of the Supreme Court of the United States, in Constitutional Prohibitory Amendment Cases,24 Kan. 700, 710, 711, said: "The two important, vital elements in any constitutional amendment, are, the assent of two-thirds of the legislature, and a majority of the popular vote. Beyond these, other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials. Take a strong illustration: The Constitution requires that the ``secretary of state shall cause the same to be published in at least one newspaper in each county of the state where a newspaper is published, for three months preceding,' etc. Suppose a unanimous vote of both houses of the legislature, and a unanimous vote of the people in favor of a constitutional amendment, but that the secretary had omitted to publish in one county in which a newspaper was published, would it not be simply an insult to common sense to hold that thereby the will of the legislature and people had been defeated? Is it within the power of the secretary, either through ignorance or design, to thwart the popular decision? Is he given a veto, or can he create one?"

To illustrate this principle in our own State, looking to the question whether the constitutional provision as to the three months' publication requires only a substantial compliance, as held in the Herold case, let us also give a strong illustration: In a number of counties in this State there is only one newspaper published, and, while knowing personally most of the editors and owners of those newspapers, we do not think and do not infer that they would stand in the way of the voters of West Virginia in amending their fundamental law. If, however, a literal compliance with the constitutional provision as to publication was required, the owner or manager of a single newspaper, it being the only newspaper in the county of its publication, could, as long as he owned and managed that newspaper, by refusing to publish the Governor's proclamation as to a proposed amendment, prevent the submission thereof to the voters of the State, though the Governor's proclamation had been transmitted in ample time for three months' publication. If such refusal should occur, the circuit court of the county in which the newspaper is published would have no power by injunction to compel publication, because a court of equity has no jurisdiction to compel a newspaper editor or manager, who after all is a private citizen, to enter into a contract where he has no duty to do so; and for the reason that the owner and manager of such newspaper is a private citizen and not a public officer, neither this Court nor the court of any county of proposed publication could issue a writ of mandamus to compel publication. By the same token, if the Governor, not through inadvertence, but for personal or political purposes, and in order to bring about the defeat of a proposed amendment, which he did not favor, should delay the sending out of the publication of proclamation until even a short time after the beginning of the three months' period, his neglect, under the literal compliance rule, would stand in the way of a valid submission of the proposed constitutional amendment to the voters of the State. Thus, the application of the literal compliance rule to the procedural provisions of Section 2, Article XIV of the Constitution, would permit private citizens, or a public officer, to unconscionably hold a veto on the power of the voters of the State to amend their Constitution, a veto certainly not contemplated by the framers of the Constitution, when Article XIV was adopted and incorporated therein.

When, however, we are applying, as we do here, the substantial compliance rule to the publication clause of Article XIV, we are not treading on new and uncertain ground. As heretofore indicated, the Herold case has definitely committed this Court to the application of that rule. This position is consonant with the great weight of authority in the United States.

The briefs filed by counsel for the relators and respondent indicate that counsel have made a rather exhaustive examination of the authorities, reference to some of which we deem it advisable to make in this opinion. In State v. Winnett,78 Neb. 379, 110 N.W. 1113, 10 L.R.A., N.S., 149, literal compliance with the Nebraska Constitution as to the publication of a proposed amendment would have required publication in at least one newspaper in each county of the State, where a newspaper was published, for three months immediately preceding the election. The election was to be held on November 6, 1906. In two counties publication was first made on August 9, 1906, and in one county on August 10, 1906. In several counties publication was not made every week for four weeks, as required by the Constitution. Nevertheless, the Court, applying the substantial compliance rule, held that the requirement of the Constitution as to publication had been met. In State ex rel. Hall v.Cline, 118 Neb. 150, 224 N.W. 6, the court held that publication in one county for one week less than the required time, where the publication was regular in all other respects, was a substantial compliance. In Manos v. State, 98 Tex.Crim. App. 89, 263 S.W. 310, the Texas Constitution provided for publication once a week for four weeks, commencing at least three months before the election in one weekly newspaper in each county. The court held that there was substantial compliance with the Constitution, though in one county publication was only for three weeks and in four counties it was made less than three months before the election. Fahey v. Hackmann, 291 Mo. 351,237 S.W. 752, is to the effect that where publication is required in each county for four weeks immediately prior to the election, publication in one county for only three weeks did not invalidate the election. In State v. Smith, 335 Mo. 840,74 S.W.2d 27, the Missouri Court, applying the substantial compliance rule, held that the election on an amendment to the Constitution was not invalidated because the four weeks' publication required by the Constitution was not immediately before the election, but the last publication was more than a week before. In Doody v. State, 233 Ala. 287, 171 So. 504, a proposed amendment to the Alabama Constitution was not published in one county in the state, notwithstanding the Constitution provides that a proposed constitutional amendment shall be published once a week in every county for eight successive weeks, prior to the election at which the amendment shall be voted on, and the court held that the publication was sufficient. So, the rule of substantial compliance, as applied to the publication provision of Article XIV of the Constitution, established by the Herold case, is supported by substantial authority in other jurisdictions.

What we have said concerning the effect of the refusal of a newspaper editor or owner to publish a proclamation which has been duly certified to him, applies to the Summers County situation. The proclamation was actually sent to the editor of a newspaper published in that county, though transmission was too late to meet the literal requirements of the Constitution. In our opinion, applying the substantial compliance rule, as we think we should do in the interest of good government, there being no showing that the voters were defrauded or misled by the failure of publication in that county, the failure to publish did not serve to vitiate the submission of the proposed constitutional amendment, under the reasoning heretofore suggested. If the failure to publish in that county had been the result of the fact that the proclamation had never been sent there, the situation confronting us would be entirely different.

However, relators attempt to distinguish the Herold case on two grounds: (1) That the tax limitation amendment involved in the Herold case had been submitted to the voters, overwhelmingly adopted by the vote of the electorate, and declared the law before the attack on its validity; and (2) that the return of the respondent tax commissioner in the Herold case shows that the Governor had proceeded "with all possible dispatch to communicate with newspapers published in each and every county of the state * * * used every possible diligence to the end that such amendment might be published in conformity to the literal requirements of Section 2, Article XIV [of the] Constitution"; and that it was impossible in that case to comply literally with the constitutional provision as to publication, because the amendment was finally passed by the Legislature on August 6, 1932, and in a majority of the counties of the State no newspaper was published between August 6 to 8, inclusive. Nevertheless, the proposed amendment was actually published in every county in the State on or before August 13, 1932.

The fact that in the Herold case the attack on the constitutionality of the amendment was not made until after its adoption by popular vote and declared the law, is not controlling. It is true that if this case had arisen after the vote on the amendment, and this record disclosed that the amendment had been voted upon by a substantial vote and passed by a large majority, we would be aided by the rule that every reasonable presumption should be given to the adoption of an amendment, as in the case of every law. Authorities: 11 Am.Jur., Constitutional Law, § 32; Bott v. Wurts, 63 N.J.L. 289,43 A. 744; Hammond v. Clark, 136 Ga. 313, 71 S.E. 479.

It is also true that this Court in the Herold case relied upon the fact that the amendment was adopted by a substantial vote and had been declared the law. The fact that the tax limitation amendment was adopted by the voters, of course, is a strong indication that the people were not misled in voting or refraining to vote on the question of the adoption of that amendment, and the Court so held in the Herold case. After reciting that the constitutional limitation amendment was adopted by a vote of 335,482 to 43,931, this Court, in that case, at page 325 of the opinion, said: "Obviously the people of the state were not misled in any particular by the fact that the proposed amendment was not actually published at least three months before the election in some newspaper in every county in which a newspaper is printed." In the appraisal of a case such as this, it is important to ascertain whether the record discloses that the voters of West Virginia were not misled by the delay. If, in the instant case, it should appear to us, though there had been substantial compliance with the publication clause of Article XIV, there had been a misleading of the electorate in voting on or refraining to vote on the proposed amendment because of misinformation or lack of information due to the delay in publication, we would be bound in good conscience to declare the submission of the amendment invalid. The present proceeding, having been brought prior to the election on November 2, 1948, we are unaided by the result thereof. If, however, it was important in the Herold case to determine, partly on the basis of the result of the vote on the amendment, whether the electorate was misled in the submission of the tax limitation amendment to the vote of the people, it is equally important in the appraisal of this case, which arose prior to the election and prior to the pronouncement of the extent of participation of the voters of West Virginia therein and the result thereof, to determine whether the delay of publication misled the people in their decision to vote on or refrain from voting on the question of ratification or rejection of the amendment.

We are not unaware of the allegations of respondent's answer to the effect that the proposed amendment was supported by the organizations of both major political parties in this State; that the amendment received favorable and unfavorable publicity by newspaper articles and editorials, radio addresses and political speeches, which no doubt accentuated in the minds of the people the failure of the Governor to make timely publication of the proposed amendment. In our opinion, in view of this widespread publicity, the voters of West Virginia were not misled in voting upon the proposed amendment. The object of the amendment, namely, a bond issue for fifty million dollars for use in the construction of secondary roads was undoubtedly of wide interest to all the people of the State, whether they resided in urban or rural sections thereof. We do not, however, desire to be understood to hold that publicity stands in lieu of the publication required by Section 2 of Article XIV of the Constitution. It is, however, important for the purpose of determining whether the delay in publication misled the electorate.

We think that the voters were not misled. If they had been misled, we should, though there had been a substantial compliance as to publication, declare the submission of the amendment invalid and unconstitutional; in which event the writ of mandamus should have issued.

Counsel for relators have directed our attention to two Kentucky cases, which they contend are applicable to the case at bar. In McCreary v. Speer, 156 Ky. 783, 162 S.W. 99, the Court of Appeals of Kentucky, in an action originating in a circuit court seeking to enjoin the Governor of Kentucky from formally proclaiming that an amendment to the Kentucky Constitution had been adopted on the ground that there had been a failure to comply with that portion of the provision of the Constitution requiring the secretary of state to cause a proposed amendment to the Constitution "to be published at least ninety days before the vote is to be taken thereon * * * as may be prescribed by law", and the further failure to comply with a provision of the Kentucky statute (Ky. Statutes, Section 1459) that such publication should be at least four times in two newspapers of general circulation not later than ninety days preceding the election. The Court of Appeals held that the publication in two newspapers for sixty days before the election was not sufficient. However, the court did not consider whether the sixty-day publication was a substantial compliance with the Kentucky Constitution and statute. That case was argued, submitted and considered by the court only on the question whether the constitutional and statutory provisions as to publication were mandatory or directory; and on the basis of the holding that the provisions were mandatory, and on that alone, without any reference to the question of substantial or literal compliance, the court held the publication insufficient. Nowhere in the opinion was the question of substantial compliance mentioned. Query: Did not the Court inferentially hold that literal compliance was necessary?

The other case urged by counsel for relators as being directly applicable to the instant case is Arnett v.Sullivan, 279 Ky. 720, 132 S.W.2d 76, in which it was held that the publication of a proposed constitutional amendment, first published seventy-three days before the election wherein the amendment was submitted to the voters, was insufficient. In that case appellant's counsel argued that the language of the Constitution, which is the same as under consideration in theMcCreary case, is directory, and solely on that issue, the provision of the Kentucky Constitution as to publication was held mandatory and required a literal compliance therewith. The court there held that: "* * * the effort at compliance (substantial or literal) was never taken by the Secretary of State within the minimum period [90 days], and therefore, there has been no ``substantial compliance' with" the constitutional provision as to publication. "It follows, therefore", the Court further reasons, "that the argument of substantial compliance has no relevancy upon the legal issue, even if applicable in the determination of constitutional questions." If this premise of the Kentucky court is true, it seems that under the holding in the Arnett case a publication for eighty-nine days, instead of the required ninety days, would not be a sufficient compliance if the Secretary of State had made no effort to publish before the beginning of the ninety-day period. While it is not for this Court to undertake to say what the Kentucky Court of Appeals would do in a case in which the first effort to publish had been on the eighty-ninth day, it seems to us that the language of the opinion in the Arnett case is broad enough to indicate that the literal compliance rule as to publication of a proposed amendment to the Constitution has been applied and adopted. To that extent, the Arnett case is contrary to the holding of this Court in Herold v. Townsend,supra.

The controlling question in the instant case is whether a publication for sixty days prior to November 2, 1948, was a substantial compliance with Section 2 of Article XIV of the Constitution so as to justify the respondent O'Brien, as secretary of state, in certifying, as he did, to the various circuit clerks in the fifty-five counties of the State, the proposed amendment as to the fifty million dollar bond issue for secondary roads. We have found and have been cited to no case in any jurisdiction, which has adopted the substantial compliance rule as to publication of a proposed constitutional amendment, in which the sufficiency of a sixty-day publication has been decided upon. We realize that, notwithstanding the applicability of the substantial compliance rule, the case before us is a borderline case. No matter what view we take, it will be met with well-meaning criticism, because at this late date there are thoughtful lawyers and students of constitutional law who might be called "strict constructionists". There are others, who just as earnestly may be of the opinion that, though the procedural provisions of the Constitution are mandatory, they require only a substantial compliance, as indeed was the holding of this Court in the Herold case. In some jurisdictions it has been held that the provisions of a state constitution as to amendments, are directory. Thus in Commonwealth ex rel. theAttorney General v. Griest, 196 Pa. 369, 46 A. 505, syl., the court held that: "The provision in article 18 as to the publication of a proposed amendment three months before the next general election should be regarded as merely a directory provision where strict compliance with the time limit is not essential." Consonant with the same view, see People v.Cook, 14 Barb. 259, 290, 8 N.Y. 67. We realize that: "* * * courts tread upon very dangerous ground when they venture to apply the rules which distinguish directory and mandatory statutes to the provisions of the constitution." 1 Carrington, Cooley's Constitutional Limitations, Eighth Edition, 159. However, we are dealing with a provision of the Constitution itself, which, in this jurisdiction, has been held to be procedural, and, not subject to a literal compliance. In the determination of this case, we start with the premise that though the instant procedural provision of Section 2, Article XIV of the Constitution, as to publication, is mandatory, a literal compliance therewith is not required. Mr. Justice Brewer in Cases of Constitutional Amendments, supra, said: "Beyond * * * [the assent of two-thirds of the legislature and a majority of the popular vote] other provisions are mere machinery and forms. They may not be disregarded, because, by them, certainty as to the essentials is secured. But they are not themselves the essentials." In the instant case the two important and vital elements in Section 2 of Article XIV have been met: (1) the assent of the legislature by a two-thirds vote of the elected members of both Houses has been given; and (2) the amendment was voted upon on November 2, 1948. The term "substantial compliance", of course, lends itself to no exact definition. For instance, this Court has held, as stated in the Herold case, that where the Governor has used due diligence, a publication which is timely in fifteen of the fifty-five counties, and of necessity about a week late in the other forty counties, was a sufficient compliance with Section 2 of Article XIV of the Constitution. On the other hand, we are not confronted with the question which was before the Supreme Court of Montana in State ex rel. Woods v. Tooker, 15 Mont. 8,37 P. 840, in which it was held that a publication for two weeks before the election "and for no longer period" did not satisfy the provision of the Montana Constitution to the effect that a proposed amendment or amendments to the Constitution are to be published "in full in at least one newspaper in each county (if such there be), for three months previous to the next general election for members to the legislative assembly."

The three months' constitutional provision, involved here, was incorporated in the Constitution of 1863 without much debate. II Debates and Proceedings of the First Constitutional Convention of West Virginia, 348, 349, 350; III Id., 381, 387, 883, 884. In the Constitutional Convention of 1872, the foregoing provision was incorporated in our present Constitution. It is rather interesting to note that Peter G. Van Winkle, a delegate to the First Constitutional Convention from Wood County, and one of West Virginia's able lawyers in a day long gone by, as well as one or more of the other delegates to the convention, held the view that the time of publication should be one or two months instead of three months, and that was at a time when the State was sparsely settled and transportation, newspaper and communication facilities were meager indeed. However, what one or more of the several delegates to the first convention thought about the time of publication of a proposed amendment to the Constitution is of little service to our present day application of the publication provision. 1 Carrington, Cooley's Constitutional Limitations, Eighth Edition, 142, 143, 144; 11 Am. Jur., Constitutional Law, Section 84, Note 13.

We are well aware of the cardinal principle of constitutional construction that effect be given to the intent of the framers of the organic law and of the people adopting it. 11 Am. Jur., Constitutional Law, Section 61. 1 Carrington, Cooley's Constitutional Limitations, Eighth Edition, 124, 125, 126 and 127. But, in this case we are called upon to interpret a procedural provision of the Constitution requiring only substantial compliance and to determine the effect of its application in the circumstances and conditions as portrayed by this record. The intent of the framers and the people who adopted the Constitution of this State evidently was to require such publication as would give to the voters notice, of an impending election on a proposed constitutional amendment, sufficient to permit them to make up their minds as to whether they would adopt or reject the amendment. That being so, we should apply the provision in question pragmatically and realistically to the accomplishment of the end and purpose for which it was incorporated in the Constitution. The term "substantial compliance" is a relative term whose very purport indicates that it should be applied to practical situations having in mind the purpose for which the provision as to publication was originally incorporated in the Constitution. By that token the meaning of the publication provision is not adamant or static, but is applicable to changing conditions, and in such application it is neither changeless or unchanged. Even as to the Constitution of the United States itself, though the wording remains unchanged, its provisions, especially those which are remedial or procedural, have and should be given such elasticity as to meet changing conditions. In Euclid v. AmblerCo., 272 U.S. 365, 387, 47 S. Ct. 114, 71 L. Ed. 303, the Supreme Court of the United States, having under consideration the constitutionality of certain building regulations, said: "Regulations, the wisdom, necessity, and validity of which, as applied to existing conditions, are so apparent that they are now uniformly sustained, a century ago, or even half a century ago, probably would have been rejected as arbitrary and oppressive. * * * while the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted, not to the meaning, but to the application of constitutional principles, statutes and ordinances, which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution, of course, must fall." See also,Merrick v. Halsey Co., 242 U.S. 568, 37 S. Ct. 227,61 L. Ed. 498.

Keeping in mind that the intent and purpose of the publication provision question was to inform the voters of West Virginia in ample time, before a proposed constitutional amendment is to be voted upon, to make up their minds whether they would vote in favor of its adoption or rejection, we think that the allegations of respondent's answer as to the greatly increased and enlarged means of dissemination of knowledge, as compared with those available at the time the Constitutions of 1863 and 1872 were adopted, become most important in the application of the substantial compliance rule to the constitutional provision under consideration. At the time the present Constitution was adopted, the facilities of communication and transportation were meager indeed in comparison with those of today. What roads there were were of poor construction; the automobile, the radio and telephone were unknown; the publication of newspapers was far less extensive than it is today; and with the exception of the Baltimore and Ohio Railroad, running through northern West Virginia, the State was without any important railroad system. In those former days, most of the communication, especially through the central and southern parts of the State, was by river, and over unimproved roads and mountain trails, so what would be substantial compliance in these modern times would not be substantial compliance in 1863 and 1872 when the three months' publication provision was inserted in the Constitution. In our opinion, in view of the great change in the facilities of communication, transportation and dissemination of knowledge, there has been such a substantial compliance as to publication with Section 2 of Article XIV of the Constitution that, in the absence of a showing that the delay in publication caused the voters to be defrauded, deceived or misinformed, the writ prayed for in relators' petition was properly refused. Though the widespread publicity of the proposed amendment, including that which resulted from the delay in the publication of the Governor's proclamation, as heretofore indicated, does not stand in lieu of the publication required by Article XIV of the Constitution, nor does it bear on the question whether there has been a substantial compliance therewith. But, because of it, we are not met with the question here whether the voters of West Virginia were, in fact, deceived or misled in voting for or against, or in failing to vote, on the proposed amendment. We are, of course, not aided in this case as this Court was in the Herold case, which was instituted after the people had voted on the constitutional amendment. Nevertheless, because there is no affirmative showing and no attack on the submission of the question as to the voters in this case on the basis that the voters were wrongfully misled or were misinformed or uninformed as a result of the official dereliction involved here, we are at liberty to apply the substantial compliance rule on the single question whether a sixty-day publication is sufficient.

In entering the order in refusing the writ, this Court did not indicate that the proposed constitutional amendment should be adopted or rejected by the voters of West Virginia. Our position then, as it is now, is that the electorate in West Virginia, being well informed as to the question involved, notwithstanding the delay in the official publication, had the right to vote on the proposed bond issue for the construction of secondary roads in this State. Perhaps it may be said that in making this decision we have gone as far as we should, and the question may be raised as to where shall the line be drawn. Such a question has been raised in borderline cases, involving the interpretation or application of constitutional provisions, so many times that it has become trite. Confined as we are to the facts of the instant case, that question is unanswerable here, and we so leave it.

Our holding is that where, as here, the vital conditions as to the proposed amendment have been fully met, namely, the assent of elected members of both houses of the Legislature by a two-thirds vote, properly entered in the journals of both the House and Senate, and the procedural provision of Article XIV as to publication has been substantially complied with, the writ prayed for was properly denied by this Court's order of October 27, 1948.

Writ denied.