102 Va. 306 | Va. | 1904
delivered the opinion of the court.
Punkhouser, who was plaintiff in error in the case of Funkhouser v. Spahr, asks a rehearing of the judgment rendered against him at the September term of this court in pursuance of section 3845 of the Code of 1887, which is as follows:
“The appellate court shall affirm the judgment, decree, or order, if there be no error therein, and reverse the same, in whole or in part, if erroneous, and enter such judgment, decree or order, as the court whose error is sought to be corrected ought to have entered, affirming in those cases where the voices on both sides are equal: provided, however, that in order to declare, in any case, any law null and void by reason of its repugnance to the Constitution of the United States or the Constitution of this State, it shall be necessary that a majority of the judges elected to the Supreme Court of Appeals shall concur.”
The contention of the petitioner is that the section above quoted is repugnant to the last sentence of section 88, Article VI., of the Constitution, which is as follows:
“Whenever the requisite majority of the judges sitting are unable to agree upon a decision, the case shall be reheard by a full bench, and any vacancy caused by any one or more of the judges being unable, unwilling, or disqualified to sit, shall be temporarily filled in a manner to be prescribed by law.”
It will not do to segregate this sentence from its context. It is found in section 88 of Article VI. of the Constitution, which deals with the organization and jurisdiction of this court. After stating with precision the subjects over which this jurisdiction shall extend, it proceeds to set forth the manner in which that jurisdiction shall in certain cases be exercised, and declares that: “The assent of at least three of the judges shall be required for the court to determine that any law is, or is not, repugnant to the Constitution of this State or of the United States; and if in a case involving the constitutionality of any such law, not more
The Constitution which preceded that now in force provided that “the assent of a majority of the judges elected to the court shall be required in order to declare any law null and void, by reason of its repugnance to the Federal Constitution, or to the Constitution of this State.” The provision of the former Constitution upon this subject was deemed inadequate by the convention which framed the present Constitution, and it inserted in lieu of it the provision as it now stands, which declares that “the assent of at least three of the judges shall be required for the court to determine that any law is or is not repugnant to the Constitution of this State or of the United States.” Where the constitutionality of a law is drawn in question, it is plain, therefore, that the assent of three judges is necessary to decide the case. A less number cannot hold that a law is constitutional or that it is unconstitutional. The assent of three judges is essential to the judgment, is a jurisdictional necessity, and less than that number is incapable of pronouncing any judgment in such a case. The convention was impressed with the delicacy and importance of the jurisdiction exercised by courts in passing upon the constitutionality of a law. It felt that the provision upon the subject in the former Constitution, which only went
In the concluding sentence of the section under consideration, separated from what has been quoted, it is true, by a period but wholly germane to and in pari materia with what has gone before, and with the manifest purpose of providing the means for carrying out the object so clearly expressed in the preceding portion of this section, the following language is used: “Whenever the requisite majority of the judges sitting are unable to agree upon a decision, the case shall be reheard by a full bench, and any vacancy caused by any one or more of the judges being unable, unwilling, or disqualified to sit, shall be temporarily filled in a manner to be prescribed by law.” How, if the purpose had been to prohibit the decision of any case by a divided court, we presume that the Constitution would have said so. The end could have been reached by simply declaring that in every case a majority of the judges sitting must agree upon a decision. If it had been intended that, this sentence should reach a class of cases not embraced in that which precedes it, the convention might, with great propriety, have made it an independent para
If the sentence now being considered was meant to apply to eases in which a constitutional question does not arise, and to forbid the decision of such cases when the “voices on both sides are equal,” in the language of section 3485, then it would have been enough to forbid the decision of any case unless a majority of the judges sitting should concur. The use of the word “requisite” would in such case be superfluous and nnnecessarv. The Constitution, however, uses the expression “requisite majority,” and it is our duty in expounding it to give due effect to every word. We can reject no word as superfluous, unless it may be in an extreme case, in which not to do so would lead to a conclusion absurd in itself or necessarily repugnant to the plain meaning of the Constitution. “Requisite” means “essential, indispensable,” and “requisite majority” must of necessity refer to the concurrence of three judges, for that satisfies, and alone satisfies, and gives force and effect to each word employed.
Letters from eminent members of the constitutional convention are copied into the petition, from which it would appear that, in their opinion, the convention intended to accomplish the result contended for by the petitioner, and its purpose was to
In United States v. Union Pacific R. R. Co., 91 U. S. 72, 23 L. Ed. 224, construing an act of Congress, the court said: “We are not at liberty to recur to the views of individual members in debate, nor to consider the motives which influenced them to vote for or against its passage. The act itself speaks the will of Congress, and this is to be ascertained from the language used. But courts may Avith propriety, in construing a statute, recur to the history of the time Avhen it Avas passed, and this is frequently necessary, in order to ascertain the reason as well as the meaning of particular provisions in it.”
In United States v. Trans-Missouri Freight Ass’n, 166 U. S. 318, 17 Sup. Ct. 550, 41 L. Ed. 1007, Justice Peckham uses the folloAving language: “There is, too, a general acquiescence in the doctrine that debates in Congress are not appropriate sources of information from Avhich to discover the meaning of the language of a statute passed by that body. The reason is that it is impossible to determine with certainty what construction Avas put upon an act by the members of a legislative body that passed it by resorting to the speeches of individual members thereof. Those who did not speak may not have agreed with those who did, and those who spoke might differ from each other; the result being that the only proper way to construe a legislative act is from the language used in the act, and, upon occasion, by a resort to the history of the times when it was passed”—citing a great number of authorities.
The English cases are to the same effect. In The Queen v. Hertford College, 3 Queens Bench. Div., at page 707, Lord Chief Justice Coleridge says: “We are not concerned with what Parliament intended, but simply Avith what it has said in the statute. The statute is clear, and the parliamentary history of a statute is wisely inadmissible to explain it, if it is not.”
And this court, in Sherwood v. A. & D. R. R. Co. 94 Va. at
Legislature, therefore, is always to be sought for by giving a fair construction to the language used, attributing to the words their ordinary and popular meaning, unless it plainly appears that they were used in some other sense.”
Our consideration of" the case leads us to the conclusion that the convention did not intend to forbid the decision of the case by this court where the voices of both sides are equal, unless there is drawn in question the constitutionality of a law.
The petition to rehear is refused.
Buchanan, J., unites in the decision. Refused.