70 W. Va. 765 | W. Va. | 1912
The alternative writ of mandamus awarded petitioners, citizens, taxpayers, and qualified voters of the City of Sistersville, and nominees of the Citizens Party, respectively, for mayor, clerk and treasurer, and two of them for auditors, commanded defendants, mayor, .city clerk, and members of the city council, forthwith to appoint certain persons alleged to have been nominated to said council by the executive committee of said party, commissioners and challengers of the municipal election to be held in said city on March 28, 1912, or appear and show cause on a day named why they had not done so.
Petitioners, as their petition, alleges and the writ recites, base their claim of right to the peremptory writ on sections 7, 85 and 93, chapter 3, Code 1906; and it is conceded that if this general law of the state is applicable to municipal elections in said city, petitioners are entitled to the peremptory writ, otherwise not.
Section 7 of said act relates to the appointment by the county court, on the nomination of the county chairmen of the two leading political parties, of commissioners of election, their power to administer oaths and take affidavits, and imposes punishment for perjury; section 93 to the appointment by said court, on like nomination., of challengers of election, and prescribes certain duties of the clerk of the count in relation to election. By section 85, “Every municipal election shall be held in conformity
Respondents in their return, however, deny the applicability of the general law to municipal elections in the City of Sisters-ville. They contend that such municipal elections are governed by chapter 4, Acts of the Legislature of 1899, entitled “An act to amend and re-enact and to reduce into one Act, the several Acts incorporating the town of Sistersville, in the County of Tyler; defining the powers thereof, and describing the limits of said town; and incorporating thé city of Sistersville, in said Tyler County.” Section 11 of that act, which if a valid enactment, must control, provides, among other things, that “The elections in said city shall be held and conducted and the result thereof certified, returned and finally determined, under the laws in force in this State, relating to general elections, on the tenth day of March, eighteen hundred and ninety-one”, the corporate authorities to perform the duties in relation to such elections required by the general law of county courts and officers.
Two points are made against the validity of this charter law, first, that the general law in force on March 10, 1891, was on March 11, 1891 amended and re-enacted, and that the new act constitutes one comprehensive statute, and was intended to cover all elections by the people, including municipal elections, thereby repealing, if not in express words, by implication, the provisions of the law in force on March 10, 1891, which are inconsistent or repugnant to the new act; second, that whether or not the first proposition be true, said section 11 of the charter act of 1899, which by reference onty, undertakes to make the general law in force March 10, 1891, the law controlling the municipal elections, is unconstitutional and void, being in contravention of section 30, Article VI. of the Constitution, which provides: “Ko law shall be revived, or amended, by a reference to its title only; but the law revived, or the section'amended, shall be inserted at large, in the new act.”
The first point we think without merit. The general law enacted March 11, 1891, contains no repealing clause. Repeals by implication, as many times said by text writers and in judi
The second is the real point of contention. Is section 11 of the charter act repugnant to the constitutional provision invoked against it ? True it is that at the time of the charter act in 1899, the general law in force on March 10, 1891, had been amended and re-enacted, and in so far as inconsistent with or repugnant to the amending act. was thereby repealed. “The courts should sustain legislative action when not clearly satisfied of its invalidity; and unless it clearly appears that it is eontrariant to the constitution then there is reasonable doubt of its invalidity, and it should be sustained and enforced.” Bridges v. Shallcross, 6 W. Va. 562, 574; Slack v. Jacob, 8 W. Va. 612; Bridge Co. v. County Court, 41 W. Va. 658; Mackin v. County Court, 38 W. Va. 338; Roby v. Sheppard, 42 W. Va. 286; Duncan v. B. & O. R. R. Co., 68 W. Va. 293.
The provision of the constitution is, “no law shall be revived, or amended, by reference to its title only.” It is not claimed that section 11 of the charter act is a revival or’ an amendment by reference to its title of the general law in force on March 10, 1891. Of course its provisions are, by the charter reference, made applicable to municipal elections in the City of Sisters-ville, and so far as1 repealed by the act of March 11, 1891, the charter act operated by adoption as a revivor for municipal purposes, but' the charter act in no sense revived or amended the general law; it amounted to revival only in this limited sense, and not to the extent we think which the constitution was intended to- prohibit. Shields v. Bennett, 8 W. Va. 74, much relied upon by respondents, involved a general law. The point we have here was not involved or decided in that ease, and it can have only general application. And Lehman v. McBride, 15 Ohio 602, and other cases cited and relied upon will be found on examination to be cases of like character.
Besides, section 11 of said charter act does more than merely
In New Jersey one of the provisions of the constitution is: “No act shall be passed which shall provide that any existing law or any part thereof shall be made or deemed a part of the act, or which shall enact that any existing law or any part thereof
But we have law still more applicable to the concrete case presented here. In 1 Lewis Sutherland on Stat. Const., section 342, if is said: “The constitutional provision now under consideration usually provides that no law shall be amended or revived by reference to its title, and requires the act revived to be set out and published at length. Few cases have arisen on this branch of the provision. It has been held that a repealed act is
Two other cases are cited by Mr. Sutherland in a foot note, namely, Stewart v. State, 100 Ala. 1, 13 So. 943, and Miller v. Berry, 101 Ala. 531, 14 So. 655. These decisions may appear to assert the contrary proposition, but if so they are not in accord with subsequent decisions of that court. The word in the constitution of that state, as in this state, is “revived.” In Railway Co. v. Land, Co., 114 Ala. 70, the act in question provided that street railroad companies might condemn rights of way and take possession thereof on paying just compensation “in the same manner as now provided by law for taking private property for railroad and other public uses in article II, chapter 17, title 2, part 3 of the Code.” It was held that this act was not interdicted by the provision of the constitution. The judge writing the opinion in that case was of a different opinion, he said, for reasons given by him in Stewart v. Com., 82 Ala. 209, but his associates, upon the authority of State v. Rogers, 107 Ala. 444,
On a former day we denied the peremptory writ, we now file this opinion giving our reasons for doing so.
Writ Denied.