123 Va. 393 | Va. | 1918
delivered the opinion of the court,
Section 117 of the Constitution of this State, as amended, authorizes the General Assembly to provide from time to time for the various cities and towns of the Commonwealth such form or forms of municipal government as it may deem best, but that no form or forms shall become operas tive except as to such cities or towns as may thereafter adopt the same “by a majority vote of its qualified electors at an election to be held as may be prescribed therefor by law.” This amendment became effective in 1912. In 1914 the legislature enacted a statute to put it into operation. (Acts 1914, p. 165). In 1916 this statute was amended (Acts 1916, p. 672), and again in 1918 (Acts 1918, p. 402). The amendment of 1918 was put into immediate effect by an emergency clause, and the election was held May 6, 1918. This amendment is assailed as unconstitutional because the emergency clause merely states the existence of the fact of emergency, and does not state the grounds of the emergency. The constitutional provision upon which this claim is based is contained in section 53 of the Constitution, which forbids putting statutes other than appropriation bills into immediate operation, “unless in case of emergency (which emergency shall be expressed in the body of the bill).” The Acts of 1914 and 1916 each provided that a majority of the qualified voters authorized to vote at such election must vote for the proposed change in order to secure its adoption. The act of 1918, however, changed the language of this clause, and followed the language of the Constitution requiring the election to be carried “by a majority vote of the qualified electors.”
On April 4, 1918, M. C. Elliott and others, constituting the requisite number of electors, filed a petition before the judge of the circuit court of the city, praying that, an election be ordered for the purpose of submitting to the quali
“It appearing that the election held in the city of Roanoke on the 6th day of May, 1918, pursuant to the order and writ made and issued by the judge of this court on the 4th day of April, 1918, whereby it was submitted to the qualified electors of said city whether or not the existing form of municipal government of the said city should be changed to that known as the ‘City Manager Plan/ as de*398 fined and fully set out in chapter 392 of the Acts of 1918 and lacts amendatory thereof, 1102 votes were cast in favor of said change and 368 votes were cast against said change, and it appearing further therefrom that said eleven hundred and two (1102) votes so cast in favor of said change of form of government, constitute a majority of the qualified electors of the said city, according to the true intent and meaning of the Constitution of Virginia and of said act as amended by act approved March 14, 1918; and it further appearing that said election was held after the notice provided in said order and writ as required by law, and that said election was conducted both as to the notice and manner of holding the same in accordance with the provisions of the law, and it is therefore so ordered.
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“It is further ordered that pursuant to the will of the people of said city, as declared by a majority vote of the qualified electors voting in the manner prescribed by law, the existing form of municipal government of said city be and the same is hereby changed to that known and defined as the ‘City Manager Plan,’ as set out and prescribed in chapter 392 of the Acts of 1915 [1916] an acts amendatory thereof.
“It is further ordered that the clerk of this court shall forthwith, certify a copy of this order to the council of the city of Roanoke for recordation upon its journal, as required by law.”
To this order a writ of error was awarded to the city of Roanoke.
Subsequently, to-wit, on May 16, 1918, Morris Manihan .and sixteen others, electors of said city, tendered their petition also asking to be made parties defendants to the petition of M. C. Elliott and others, upon whose petition the election had been ordered and held, and praying for the same relief as was prayed by the city of Roanoke. Elliott
A number of questions of interest and importance have been ably argued before us, but, in the view we take of the case, it will be unnecessary to pass upon them.
It has been urgently insisted, both in the oral argument and in the briefs, that the emergency clause of the act of 1918 is not sufficient compliance with the provision of section 53 of the Consitution, postponing the operation of acts, other than appropriation acts, until ninety days after the adjournment of the General Assembly, “unless in case of emergency (which emergency shall be expressed in the'body of the bill).” Plaintiffs in error insist that the words “which emergency” are entirely superfluous, if it is sufficient simply to declare the fact of the existence of an emergency, and that, in order to give them any effect, it is necessary that “the facts or conditions constituting the emergency shall be expressed or declared.” Such a construction would read into the Constitution words which the convention which framed it did not see fit to use. If such had been its intention, nothing would have been easier than to have said so in language that was plain and unequivocal. The word “emergency” in parentheses was apparently placed there merely to point out with definiteness and more cert°inlv the antecedent to which the word “which” referred. rnip ennstructin would be the same if the second word “emergencv” and the parentheses were omitted altogether,
“All the members of the legislature might agree that an emergency existed for the passage of the act, yet they might disagree as to the cause of the emergency, or as to the facts which constitute the emergency. How then would they vote? Surely, if all the legislature agreed that an emergency existed, but they were -all split up as to the facts which constituted the emergency, they should not be denied the privilege of passing the bill as an emergency bill because they disagreed as to the facts which constituted the emergency.”
If the legislature is the sole judge of the existence of an
. The reason for postponing the operation of statutes, as is done by section 53 of the Constitution, was that the people might be informed of their contents before they became effective. The reason for making* exceptions to the rule was manifest necessity. The reason for stating that a particular act belonged to the emergency class was to call that fact to the attention of members of the legislature, not of the people, so that they might carefully examine it and determine for themselves whether or not the act should be so .classified. Notice to the people of an alleged fact which they could not controvert would be vain.
If it was intended to require the legislature to state the reasons for the emergency, the convention would have used language similar to that of the Kentucky Constitution, “but the reasons for the emergency that justifies this action must be set out at length in the journal of each House.” (Const. §55.) Quoted in Commissioners v. George (Ky.), 47 S. W. 782, 84 Am. St. Rep. 454.
Counsel for the plaintiffs in error say in their brief that “after exhausting the authorities accessible to the writer, but one case has been found which is specific upon the question here presented,” and cites Biggs V. McBride, supra. Defendants in error have not been able to add any other, nor have we found any.
The provision of the Constitution of Oregon which was under consideration in that case was as follows:
“No act shall take effect until ninety days from the end of the .session at which the same shall have been passed, except in case of emergency, which emergency shall be declared in the preamble or. in the body of the law.” (Article 4, § 28.)
Counsel for the plaintiffs in error make the following quotation from the opinion of the court, to show that the court held that it is necessary to state the reasons for the emergency: “It is the fact of the existence of any event of occasional combination of circumstances, which calls for immediate action or remedy, or the fact that some pressing necessity or exigency exists which enables the legislature, by declaring the same in the preamble or body of the act, to put the same in force sooner than the time'prescribed in the Constitution in cases where there is no such emergency, or the same is not so declared; but, in all such cases, it is for the legislature to ascertain and declare the fact of the existence of the emergency, and their determination is not reviewable elsewhere. The Constitution has vested the lawmaking department of the government with the power to determine that question (Carpenter v. Montgomery, 7 Black [Ind.] 415; Gentile v. State, 29 Ind. 409); and such determination is not made reviewable in the courts. No doubt the emergency must be declared in the body or preamble of the act, but, if there is no fact, event or state or condition of affairs mentioned which the legislature determines creates an emergency, no difference how strongly or directly it may be asserted in the act that it is necessary that it should go
If the contention of the plaintiffs in error be correct, that the latter part of the paragraph quoted means that the grounds of the emergency must be Stated, then it is in conflict with the other statements of the paragraph, that “it is for the legislature to ascertain and declare the fad of the existence of the emergency and thei/r determination is not reviewable elsewhere. The Constitution has vested the law-making department of the government with the power to determine that question * * * and such determination is not made reviewable in the courts.” (Italics supplied.) It must be borne in mind that in the act there under consideration no emergency was expressly stated, and the court was considering whether what was stated amounted in effect to a declaration of an emergency, and the language used must be read in this light. It seems more probable, therefore, that the court meant to hold that where no emergency was expressly declared, the court would consider the language used and determine for itself whether or not it was tantamount to a declaration of the existence of the fact of an emergency, and that no matter how strongly or directly it might be asserted in the act that it was necessary that it should go into effect immediately, such assertion would be ineffectual unless the act either contained an emergency clause, or what, in effect, amounted to such a clause, for otherwise it would not be in compliance with the Constitution. The words, “no difference,” are used in the sense that it was a matter of indifference, or of no consequence. This construction makes the paragraph quoted harmonious and in accord with the later Oregon case hereinafter cited.
Sdme time after this decision was rendered, the Constitution of Oregon was amended so as to restrict the use of the emergency clause to laws “necessary for the preserva
In Commissioners v. George (Ky.), 47 S. W. 779, 84 Am. St. Rep. 454, the court was considering the Constitution of Kentucky which required that the reasons for the emergency should be set out at length in the journal of each house. Our Constitution is so entirely different that tho case throws no light on the subject.
In Nebraska v. Pacific Express Co., 80 Neb. 823, 115 N. W. 619, 18 L. R. A. (N. S.) 664, the following was held to be insufficient as an emergency clause: “Sec. 7 (Emergency) . This act shall take effect on * * * after its passage and approval.” We do not regard this clause as at all the equivalent of the clause under consideration. Each section of the act contained One or more catch words simply to indicate the subject dealt with in the section. These catch words were manifestly not regarded as any portion of the sections to which they were prefixed, and the court declared the section not a sufficient compliance with the constitutional requirement, without discussion.
The contention that the legislature has exceeded its powers and that a statute is unconstitutional always presents a question for serious consideration. The Constitution of the State is not a grant of legislative powers to the General Assembly, but is a restraining instrument only, and, except as to matters ceded to the federal government, the legislative powers of the General Assembly are without limit. Every presumption, therefore, is to be made in favor of the constitutionality of a statute, and it will never be declared to be unconstitutional unless it is plainly and clearly so. If any reasonable doubt exists as to its constitutionality, the act' will be upheld. To doubt is to affirm. The mere passage of a statute is an affirmance by the General Assembly of its constitutional power to adopt it, and the case must be plain indeed before a court will declare a statute null and void. These principles have been repeatedly
Furthermore, in cases of doubt, the construction placed upon the Constitution by the legislature itself is entitled to consideration, but will not be permitted to overturn plain language. Day v. Roberts, 101 Va. 248, 43 S. E. 362.
In the cases at bar, not only has the legislature affirmed its constitutional power by exercising it, but in a large number of cases has enacted statutes containing emergency clauses in the very language of the statute before us. In four sessions it passed upwards of seventy of such statutes. It is true that its action in this respect has not been uniform, and that, in a much larger number of cases, the grounds of the emergency have been stated, but the omission in such a large number of cases tends to show that it regarded the insertion of the grounds as a precautionary measure only which could do no harm, but was in fact unnecessary. If the insertion of the grounds had been deemed necessary, the legislature would not have omitted it in numerous instances at every session since the adoption of the Constitution. The court will not presume that this was an oversight. The omission to state the grounds of the emergency in the act of 1918 was not a plain violation of section 53 of the Constitution, and the statute must, therefore, be upheld as a valid constitutional enactment and in force from its passage.
A motion was made to dismiss these writs of error upon
In Manns V. Givens, 7 Leigh (34 Va.) 689, a deed was offered for record to the county court, and at the same time evidence of its due execution, but the court refused to admit it to record because the justices “deemed the evidence in support of it. inadmissible and insufficient.” There were two attesting witnesses to the deed, one of whom was dead and the other a non-resident of the State, and the evidence offered was the deposition of the absent witness, taken after due notice; and the witness was subjected to cross-examination. This witness testified to the due execution and attestation of the deed. This court held that the evidence was admissible and sufficient, that the county court, as to this matter, was acting as a court of registry only, that its office was ministerial solely, and that mandamus was the proper remedy to compel the court to admit the deed to record.
In Delaney v. Goddin, 12 Gratt. (53 Va.) 266, the county court refused to record the report of the surveyor of a lot of land sold by the sheriff for non-payment of the tax upon it. The motion to record was made by the purchaser at the sheriff’s sale, and was resisted by the former owner. The statute provided that “the county court, unless it see some objection to such report, shall order the same to be recorded.” It was insisted on behalf of the former owner
“The objection growing out of the alleged complicity of the sheriff with the purchaser, or whether the taxes and damages and cost of survey, where a survey was made, were paid by a party authorized by law to redeem to the proper
In Lewis v. Christian, 101 Va. 135, 43 S. E. 331, the oyster inspector was required by statute to determine whether a particular oyster rock was natural oyster rock according to a designated survey and report. If so, and stakes had been placed on the natural oyster rock or bed, it was his duty to have them removed. On an application for a mandamus to have removed stakes placed upon certain oyster rocks alleged to be within said survey and report, it was said that it was the imperative duty of the oyster inspector to have the stakes removed if placed on natural rocks or beds, as shown by said survey and report, and he “has to determine the existence of these facts,” but that his duty was none the less ministerial because he had to determine whether or not the facts existed which made it his duty to act. In other words, the duty to ascertain a fact from evidence does not per se render the duty judicial.
It is not easy to lay down a general rule by which it may always be determined what acts are judicial and what are ministerial, and we shall not attempt it. But it is safe to say that whether a duty imposed is judicial or ministerial is to be determined by the nature of that duty, and not by the tribunal or person that is to discharge it. That judicial tribunals are often charged with the performance of purely ministerial functions is well illustrated-by the cases herein-before cited, and it is equally true that executive or ministerial officers are also sometimes charged with judicial or quasi judicial functions. See Thurston v. Hudgins, 93 Va. 780, 20 S. E. 966, and Rowe v. Drisgell, 100 Va. 137, 40 S. E. 609; note in 44 Am. St. Rep. at p. 46, and cases cited.
After the election has been held, the statute requires that, “returns of the election shall be certified by the commis.sioners of election, or their clerk, to the court, or the judge thereof in vacation; and if it shall appear that the proposed change has not been adopted by a majority vote of the qualified electors, an order shall be entered of record accordingly, and no other election for any change in the form of government of such city or town shall be held within two (2) years after such election; but if the said proposed change is adopted by a majority vote of the qualified electors, the court, or judge thereof, shall enter an order accordingly, a copy of which shall be forthwith certified by the clerk of such court to the council of such city or town for recordation upon its journal.” Here, again, no discretion is vested in the court or judge. A fact is to be ascertained, to-wit, “if the said proposed change is adopted by a majority vote of the qualified electors.” If it is, then the statute is mandatory, “the court, or judge thereof, shall enter an order accordingly.” It is sought to invest the court or judge with discretion by arguing that the words “a majority vote of
The act under which the judge of the circuit court acted in these cases constituted him a mere canvassing or returning .officer, with no power, while so acting, to go behind the returns or to inquire into the legality of the votes cast.' The proceeding before him was wholly ex parte. The returns of the election were to be certified by the commissioners of election to the judge, arid if it appeared that “a majority of the qualified electors authorized to vote at such election”
The action of the city in intervening in the cause was in the nature of an appearance of an amicus curias, and was advisory only. It conferred no rights upon the city.
For the reasons hereinbefore given, the writs of error will be dismissed as having been improvidently awarded.
Dismissed.