114 Va. 297 | Va. | 1912
delivered the opinion of the court.
Appellant, J. A. Scott, in his capacity as a citizen and taxpayer of the State of Virginia, instituted this suit to enjoin the re-submission to a vote of the people of the proposed amendments of sections 119 and 120 of the Constitution, in relation, respectively, to commissioners of the revenue and treasurers in the cities, as provided for in an act of the general assembly, approved February 14, 1912.
The prayer of the bill was for an injunction restraining appellee, B. O. James, as Secretary of the Commonwealth, from sending out copies of the said act to the clerks of each county and municipal corporation in the State, as he was required to do by the fifth section thereof, on the ground that the general assembly, in passing said act, exceeded its constitutional authority in that the steps prescribed for the amendment of the Constitution had not been complied with, and that the act, therefore, conferred no authority upon the appellee to perform the duty sought to be enjoined.
The cause was heard in the lower court upon the bill and the demurrer and answer of appellee thereto, and the learned judge of that court was of opinion that the question of the constitutionality of the act. of the general assembly complained of in the bill was prematurely raised, and that the court was without jurisdiction at that time to pass on that question for the reasons (1) that the court had no power to arrest or interfere with the process of legislation, and (2) that it had no power to enjoin the holding of an election.
The learned judge below has, in a written opinion filed as a part of the record, so fully and clearly discussed the law and facts of the case, and so satisfactorily presented the views entertained by this court with respect to the questions involved, that we adopt the same as an entirely sufficient disposition of the controversy, adding only some authorities in point.
“In this case the complainant, as a citizen and taxpayer of the State of Virginia, suing for himself and on behalf of all other citizens and taxpayers of the State, seeks to enjoin the defendant, as Secretary of the Commonwealth, from executing one of the requirements of an act of the general assembly, which became a law Februai'y 14, 1912, without the Governor’s signature, on the ground that the general assembly in passing the said act exceeded its constitutional authority, and that the act, therefore, is invalid and confers no power upon the defendant to perform the act sought to be enjoined.
“The motion was argued before the court upon the bill of complainant and exhibits therewith, upon the demurrer of the defendant and upon the answer of the defendant, together with certain exhibits filed therewith.
“The facts relative to the said act of the general assembly of February 14, 1912, are as follows: The legislature of Virginia, at its session in 1908, agreed to certain proposed amendments to the Constitution of Virginia, and, as ordained in section 196 of the Constitution of 1902, referred the proposed amendments to the next session of the general assembly. The legislature, at the session of 1910, in compliance with the provisions of the said section of the
“The election so ordered by the legislature was held, and upon the ballot for or against amending sections 119 and 120 of the Constitution, a majority of the votes were cast in the negative. The legislature which assembled in 1912 thereupon passed the act, the constitutionality of which is assailed in this proceeding. That act recites all' the proceedings which had been had looking to the amendment of section 119 and section 120, and after reciting that the proposed amendments to the said two sections were coupled together in a single ballot so that a separate vote could not be had on each of said amendments, and that the will of the voters had, therefore, not been ascertained on each of said amendments separately, and after reciting
“Without the preamble and preliminary recitals, the act itself consists of six sections. The first section provides that it shall be the duty of the officers conducting the election to be held in November, 1912, to provide for a vote of the people upon the amendments to each of the said two sections upon a separate ballot for each section. The second section of the act provides, in the usual manner, for the counting and return of the ballots. The third section of the act directs the Secretary of the Commonwealth and the State Board of Canvassers to open and canvass the returns and submit to the Governor a statement of the result. The fourth section of the act authorizes the Governor to publish the result in newspapers. The fifth section of the act is as follows:
“ ‘5. The Secretary of the Commonwealth shall cause to be sent to the clerks of each county and corporation as many copies of this act as there are places of voting therein; and it shall be the duty of said clerks to deliver the same to the sheriff for distribution, whose duty it shall be forthwith to post the said copies at some public place in each election district.’
“The sixth section of the act orders the expense of conducting the election to be defrayed as in the case of the election of members of the general assembly.
“The prayer of the bill filed in this case, and the motion now made before the court, is to enjoin the Secretary of the Commonwealth from sending to the clerks of the counties and cities copies of the act, as is directed in section 5 just above transcribed.
“When the Constitution of 1902 was adopted or ordained it became, by the will of the people of Virginia, the organic instrument containing the permanent system or frame of government by which the people of the State were thereafter to be governed. It is well established that in the popular form of constitutional government prevailing in the States in this country the legislative power resides in the general assembly provided for in the Constitution, without restriction except in so far as the exercise of the legislative power by the general assembly is limited by the
“In order to amend the Constitution of Virginia, therefore, concurrent action, both of the legislature and of the people, by their vote, is required, and until the final vote of the people is had thereon the amendment is still in process of evolution or of enactment. In acting under section 196 the legislature is not engaged in the exercise of ordinary legislative functions; that is, it is not passing a general statutory law for the government of the people. In another sense, however, the legislature is engaged in performing legislative or law-making work, because the making or amending of a Constitution is the establishing of the highest law for the people; but while engaged in bringing about the establishment of such a higher law the legislature is not acting alone and has no power to act alone, but under section 196 of the Constitution the legislature and the people of the State must act conjointly, and until the result of their joint action is ascertained no amendment is finally refused or adopted.
“1. I do not think that a court of equity, nor any tribunal of the judiciary department of government is authorized to interfere with the process of legislation. After legislation has been completed and its validity is questioned before any court in a proper proceeding, the duty of the court is to pass upon its constitutionality wherever the rights of parties litigant depend upon the solution of that question. If a bill is passed by both houses of the general assembly and is about to be transmitted to the Governor for his veto or signature, it is very clear that the judiciary department of the government could not enjoin the transmission of the enacted bill to the Governor on the ground that it was unconstitutional, as such a proceeding would manifestly be an unwarranted interference by the courts with the constitutional processes of the legislative department. So, in the case at bar, the amending of the Constitution is the making of a permanent law for the people of the State by which they are to be governed in the future, and the courts cannot interfere to stop any of the proceedings while this permanent law is in process of being made. If the amendment is not adopted, of course, no question will ever come before the court. If, upon completion of the proceedings, the validity of the amendment is assailed on the ground that the several provisions of the Constitution have not been complied with, then the courts can pass upon the validity of the amendment. The judiciary department has the power, and it is its duty, to pass upon the validity of a constitutional enactment when put in force, as well as upon the validity of an act of the legislature regid arly passed and put in effect. ■
“2. It is a well settled principle regulating the jurisdiction of courts of equity that such courts will not, with few
“In considering the question just mentioned, I have consulted more especially the following authorities which, it seems to me, establish the conclusions which I have reached, viz.: Fletcher v. Tuttle, 151 Ill. 41 [37 N. E. 683], 25 L. R. A. 143 [45 Am. St. Rep. 220]; People v. Mills, 30 Col. 262 [70 Pac. 322]; Cranmer v. Thorson, 9 S. D. 149 [68 N. W. 202, 33 L. R. Á. 582]; Duggan v. Emporia (decided March, 1911), 84 Kansas 429 [114 Pac. 235], which is also reported in the following series of cases to which annotations are appended: 21 Am. & Eng. Ann. Cases, p. 719; American Annotated Cases — Ann. Oases 1912 A, p. 719. Various authorities were cited in argument, but I have called attention to the foregoing because they are the most recent.
“The case of Livermore v. Waite, 102 Cal. 113 [36 Pac. 424, 25 L. R. A. 312], seems to sustain the power of a court of equity to issue an injunction in a case such as this; but the reasoning of the court and the result reached by it is, in my opinion, not in accord with the weight of authority nor with the true principles which control the relation between the different departments of government under our State constitutions.
“I am of the opinion that the injunction prayed for should not be awarded in this case, because to do so would be interfering with the process of legislation or constitution-making, and would be using the authority of the judiciary department to prevent the holding of an election.”
The authorities just cited not only sustain the views of Mr. Pomeroy in respect to the non-interference by the courts in elections and in pointedly saying in section 332 of his work, supra, “And a secretary of State will not be enjoined from publishing proposed amendments to the State Constitution, although such amendments, if adopted, might be invalid;” but they state well grounded reasons why ■courts of equity will not enjoin the conducting of any kind of election and show that those reasons apply with greater force to an election held on a constitutional amendment than in any other case. Those authorities, in effect, say: ‘Where the people are undertaking to exercise the right reserved to them to change the fundamental law under which they live, if the courts will not (with few exceptions) enjoin an ordinary election, it must follow that they would not enjoin an election upon a proposition to change the fundamental law.”
The decree under consideration is affirmed.
Affirmed.