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30 W.Va.
479, 4 S.E. 635 Supreme Court
of Appeals of West Virginia. SHEPHERD
et al. v. CITY OF WHEELING et al. November 19,
1887.
It is the province of courts to decide what the law is,
and determine its application to particular facts in the decision of causes;
the province of the legislature is to declare what the law shall be in the
future. [*635] COUNSEL: Geo.
B. Caldwell, Denis O’Keefe, and H. M. Russell, for plaintiff in error.
Ewing,
Melvin & Riley, for defendant in error.
JUDGE: SNYDER, J.
J.
B. Shepherd and 11 others, residents and tax-payers of the
city of Wheeling, on April 19, 1886, filed their petition in the circuit court
of Ohio county, alleging therein that the council of said city on January 16,
1886, adopted an ordinance entitled “An ordinance in relation to the
police and fire departments of the city of Wheeling, and the appointments,
duties, and compensation of the commissioners thereof;” that the said
council subsequently, in pursuance of said ordinance, elected four persons as
commissioners [*636] of the police and fire
departments of said city, who have duly qualified and are carrying out the
provisions of said ordinance; that said ordinance was made contrary to law, and
is invalid, for the reason that it confers illegal powers upon said
commissioners, and upon other grounds specifically set forth in the petition,
but which it is unnecessary to state here; and they pray that said ordinance,
or at least those portions therein referred to, may be superseded, revoked, and
annulled. Upon the filing of said petition the court made an order that the
city of Wheeling and the four commissioners elected under said ordinance be
summoned to answer said petition. After being summoned, the said city and
commissioners appeared, and moved the court to dismiss the same, upon the
ground that the statute under which the same was filed is unconstitutional and
void; which motion being overruled, they demurred to the petition, and, the
demurrer being also overruled, they filed their answer, to which the
petitioners demurred; and upon the final hearing the court, by an order entered
on January 14, 1887, held and decided that said ordinance, so far as it relates
to the police department, was inoperative, and to that extent superseded,
revoked, and annulled the same, but no further. The city and said four
commissioners then obtained this writ of error to said final order. The
plaintiffs in error having moved to dismiss the petition of the defendants in
error, because the statute under which it was filed is unconstitutional, the
first question presented here is, did the circuit court err in overruling said
motion? The statute referred to is the act of December 22, 1875, (chapter 72, Acts
1875,) entitled “An act authorizing certain laws and ordinances to be
superseded and annulled.” This act, after providing that, upon the
petition of 10 tax-payers residing in any city, town, or village aggrieved by
an unlawful or erroneous levy, the circuit court may supersede such levy in the
same manner that said court may now supersede a levy made by a county court,
declares: “Upon like petition, any ordinance of a city, town, or
village, made contrary to law, the circuit court may supersede, revoke, and
annul the same.” This act is assailed upon two grounds: First,
because its object is not fairly expressed in this title; and, second, it
attempts to vest in the circuit court legislative powers. For the purposes of
this writ of error it is unnecessary to pass upon the first ground. I shall
therefore proceed to consider the second. The fifth article of our
constitution expressly declares that “the legislative, executive, and
judicial departments shall be separate and distinct, so that neither shall
exercise the powers properly belonging to either of the others.” It
necessarily follows, then, from this positive constitutional inhibition, that
if this act, in any degree, requires the circuit court to exercise legislative
power, it is to that extent void. The constitution does not define what are
legislative or what are judicial powers; but what properly belongs to the one
and what to the other of these departments of the government is to be
determined by reference to the established law as it existed at the time the
constitution was framed. It is an elementary principle of universal application
that the laws and ordinances of a city adopted by its council, within the scope
of its authority, partake of the nature, and have the same effect within the
corporate limits of the city, that the same laws could have if they had been
enacted by the legislature of the state in which the city is located. In the
one case the legislature exercises its legislative power directly, while in the
other it does so indirectly, by delegating to the city a portion of its
functions; but whether the power is exercised directly by the legislature
itself, or indirectly by the council of the city under a legislative grant, the
result is the same, and in both instances the power exercised is legislative.
The enactment of an ordinance by a city council, or the enactment of a statute
by a legislature, being in each case the exercise of legislative power, the
repeal of such ordinance or statute must likewise be the exercise of
legislative power. It does not require any precise definition of judicial
power, or any nice discrimination [*637] as to
its extent and limitations to determine that the act of repealing a statute is
not the exercise of judicial power. When, in the course of determining the rights of the
parties to a particular suit or controversy, the court finds it necessary to
ascertain whether or not a statute is unconstitutional, the court must
necessarily pass upon that question; but in doing so it does not annul or
repeal the statute if it finds it in conflict with the constitution. It simply
refuses to recognize it, and determines the rights of the parties just as if
such statute had no existence. The court may give its reasons for ignoring or disregarding
the statute, but the decision affects the parties only, and there is no
judgment against the statute. The opinion or reasons of the court may operate
as a precedent for the determination of other similar cases, but it does not
strike the statute from the statute-book; it does not repeal, “supersede,
revoke, or annul” the statute. The parties to that suit are concluded
by the judgment, but no one else is bound. A new litigant may bring a new suit,
based upon the very same statute, and the former decision cannot be pleaded as
an estoppel, but can be relied on only as a precedent. This constitutes the
reason and basis of the fundamental rule that a court will never pass upon the
constitutionality of a statute unless it is absolutely necessary to do so in
order to decide the cause before it. Cooley, Const. Lim. 163. Judge Cooley
says; “Nor will a court listen to an objection made to the
constitutionality of an act by a party whose rights it does not affect, and who
has therefore no interest in defeating it. On this ground it has been held that
the objection that a legislative act was unconstitutional, because divesting
the rights of remainder-men against their will, could not be successfully urged
by the owner of the particular estate, and could only be made on behalf of the
remainder-men themselves. Antoni v. Wright, 22
Grat. 857. And a party who has assented to his property being taken under a
statute cannot afterwards object that the statute is in violation of a
provision in the constitution designed for the protection of private property.
The statute is assumed to be valid until some one complains whose rights it
invades.” Cooley, Const. Lim. 164. In a very able opinion by
SHAW, C. J., which is approved and in part quoted in the text of Cooley, that
eminent judge says: “It may be well doubted whether a formal act of
legislation can ever, with strict, legal propriety, be said to be void; it
seems more consistent with the nature of the subject, and the principles
applicable to analogous cases, to treat it as voidable. But whether or not a
case can be imagined in which an act of the legislature can be deemed
absolutely void, we think it quite clear that when such act is alleged to be
void, on the ground that it exceeds the just limits of legislative [*638] power, and thus injuriously affects the rights
of others, it is to be deemed void only in respect to those particulars, and as
against those persons whose rights are thus affected. Prima facie, and
upon the face of the act itself, nothing will generally appear to show that the
act is not valid; and it is only when some person attempts to resist its
operation, and calls in the aid of the judicial power to pronounce it void as
to him, his property, or his rights, that the objection of unconstitutionality
can be presented and sustained. Respect for the legislature, therefore, concurs
with well-established principles of law in the conclusion that such act is not
void, but voidable only; and it follows, as a necessary legal inference from
this position, that this ground of avoidance can be taken advantage of by those
only who have a right to question the validity of the act, and not by
strangers. To this extent only is it necessary to go in order to secure and
protect the rights of all persons against the unwarranted exercise of
legislative power; and to this extent only, therefore, are courts of justice
called on to interpose.” Wellington v. Petitioners,
etc., 16 Pick. 96. The statute under consideration
undertakes to confer upon the judiciary department the power to “supersede,
revoke, and annul” any ordinance of a city or town, made contrary to
law, upon the petition of 10 tax-payers residing in such city or town; and the
defendants in error contend that this statute authorizes the circuit court to
annul an ordinance of a city upon the ground that it is in conflict with the
organic law of such city. Their counsel in their brief say: “In this
very case, one side is asking the court to pronounce a legislative enactment
invalid; the other is doing the same with reference to a city ordinance. But
the idea of legislation on the part of the court is not involved. Should the
objection prevail in either case, the law or the ordinance is not repealed, but
is simply held for naught. The words employed indicate no thought of
transferring legislative functions. A legislative body repeals a law, and
rescinds an order or resolution; while courts reverse, supersede, revoke, or
annul, as the particular case may require.” This is, I think, a very
fair and clear statement of the exact point to be decided by the court, and, in
my judgment, demonstrates the untenable position of the defendants in error.
They say that a judgment in their favor will not repeal the city ordinance, but
simply declare it naught. This is nothing more than calling the same thing by
different names. If the ordinance is made naught for all purposes, the effect
is precisely the same as if it were repealed. By either process it is made a
nullity. The claim of the defendants in error requires them to maintain that
the ordinance must be held naught by the court for all purposes, and not merely
for the purposes of this proceeding; for, unless such is the case, no one will
be bound by the judgment, except, perhaps, the petitioners, — certainly,
no other resident of the city would be bound.
The counsel correctly claim
that a legislative body repeals a law, and rescinds an order or resolution; but
if they intend, by the words used in the brief, that “courts reverse,
supersede, revoke, or annul” a statute or ordinance, then, they are
plainly incorrect. A court may reverse, supersede, or annul a judgment or
decree; but they can neither revoke a judgment or decree after the term, nor
reverse, supersede, revoke, or annul a statute or ordinance for any reason, or
under any circumstances, because to do so would be the exercise of legislative
power, which is forbidden by the constitution. But if the defendants in error
do not claim that a court can reverse or annul a statute or an ordinance, and
thus render it void for all purposes, and as to all persons, then they
necessarily concede that a judgment rendered in their favor in this proceeding
will leave the operation of the ordinance unimpeached, and in force as to all
persons except themselves. The principles hereinbefore discussed clearly
establish that such can be the only legitimate effect of such judgment. But
this is plainly not what the defendants in error are contending for. They
claim, and, in order to make this proceeding attain the object [*639] they seek, they must claim, that the effect of
the judgment shall be to render naught said ordinance as to all persons and for
all purposes; in other words, that the judgment shall operate a repeal of the
ordinance. And they admit that the repeal of a statute or ordinance is the
exercise of legislative power. The passing of an ordinance by a city, as we
have already shown, is as much the exercise of legislative power as is the
enactment of a statute by a legislature. The only difference is in the extent
of the power, and not in its quality. The legislature has a general power to
pass any statute which the state constitution does not forbid, while a city can
only exercise such legislative power as it is authorized to do by its organic
law; that is, its charter, and the statutes relating thereto. If either
transcends its powers, the act is voidable, at the option of any party whose
rights are affected by it, and will be so declared as to him by the courts in any
suit or judicial proceeding by or against him, but to that extent only. The
petitioners do not allege any personal grievance or special injury to
themselves or their rights. The only basis of their action is that they are
residents and tax-payers of the city. Their proceeding is evidently intended to
be on behalf of all the other residents and tax-payers of the city as well as
themselves. It is not their purpose merely to have said ordinance declared void
as to themselves only, but as to the city and all its inhabitants. This is
clearly what the legislature intended, as is apparent from the terms of the
act; and that this is what the defendants in error intended is manifest upon
the face of the petition, as well as from the fact that they rely upon the cases
of Probasco v. Moundsville, 11 W. Va.
501, and Wells v. Board of Education, 20
W. Va. 157, to sustain their proceeding. Those cases were proceedings by
certain tax-payers, on behalf of themselves and all other tax-payers in the
district, to supersede tax levies, on the ground that the same were illegal.
The object of the petitioners in each of those cases was to wholly supersede
and annul the levy. The question of the jurisdiction of the court was not
raised or discussed in either of those cases, but it was evidently conceded,
upon the ground that the proceeding was simply a summary remedy, substituted by
statute for the relief for which the parties would have otherwise had an
undoubted right to resort to a court of equity. Williams v. County
Court, 26 W. Va. 488. The proceeding here is very different
from those cases. Here, the petitioners could not have resorted to a court of
equity for the redress they claim. They seek to annul a law, and not to
supersede a levy. The objects here and there are not analogous, but radically
different, The objects in those cases was to prevent the collection of an
illegal tax; while here it is to reverse, revoke, and annul a law, or, what is
the same thing, to repeal a city ordinance. The action there sought was judicial;
while the purpose attempted here is purely legislative, and expressly forbidden
by the constitution. For the foregoing reasons, I am clearly of opinion
that so much of chapter 72, Acts 1875, as attempts to confer upon circuit
courts the power to “supersede, revoke, or annul” an
ordinance of a city, is unconstitutional, because the power so attempted to be
conferred upon said courts is legislative in its character. The circuit court
of Ohio county therefore erred in overruling the motion to dismiss the petition
of J. B. Shepherd and others, and for that reason the judgment of said court
must be reversed, and said petition dismissed, with costs.
JOHNSON, GREEN, and WOODS, JJ., concurred.
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