State ex rel. Trent v. Sims

Browning, Judge,

concurring:

This Court has unanimously agreed that the writ of mandamus prayed for herein should be refused, and there was complete agreement also upon the four reasons assigned in the opinion for the holding of the Court upon that question. The Court’s opinion, after stating that “the foregoing disposes of the controlling questions in this case”, proceeded to discuss several other questions raised by counsel which I do not believe necessary to the decision in this case, but there is only one about which I am concerned.

Counsel for relator maintained that the estimates for public schools submitted to the Board of Public Works were self-enacting under the provisions of the second paragraph of Article VI, Section Second, Sub-Section D, of the Constitution of this State, hereinafter referred to as Paragraph Two, and the Court agreed that this .contention was erroneous. However, although it was *290 not necessary to do so, the Court’s opinion proceeded to interpret Paragraph Two, and in so doing they have adopted a construction thereof with which I am in complete disagreement. This concurring opinion is directed solely to the interpretation of that part of the Constitution, and particularly to the last four words of Paragraph Two. It is here quoted, with the four words italicized: “The board of public works may provide for public hearings on all estimates and may require the attendance at such hearings of representatives of all agencies, and all institutions applying for state moneys. After such public hearings it may, in its discretion, revise all estimates except those for the legislative and judiciary departments, and for the public schools as provided by law.” The Court’s opinion specifically holds that the words “as provided by law” mean the amounts appropriated in the Budget Act covering the 1951-53 biennium for the Department of Education, State aid to Schools, and free text books for schools.

The Court’s opinion refers to the Goodnow Report upon which the Budget Amendment to the Maryland Constitution was based, the latter being almost identical with ours. It is interesting to note that this report, submitted to the Maryland Legislature by the Governor of that state, approximately a year and a half before a similar resolution was adopted by our Legislature, contained this paragraph: “It is further to be noted that the Commission has felt that the separation of the three great departments of government, which is such a characteristic feature of American political organization, makes it desirable to treat the estimates for the legislative and judiciary departments differently from the other estimates. The estimates for the Legislature and judiciary are not to be subject to the revisory powers of the Governor. Those for the Legislature and judiciary are to be certified to the Governor, and are to be transmitted by him without revision to the Legislature. The estimates of the judiciary as provided by law are to be certified by the Comptroller, and the Legislature may increase *291 them, but not reduce them. The effect of this method of treating the estimates for the judiciary will be that no reduction in the provision made by the law for the judiciary may be made in an Appropriation Act. The Legislature may, however, by an Act, not an Appropriation Act, but subject to the limitations of the Constitution, change the provision made by lato for the Courts. In case it should do so, the Comptroller must, the next time a Budget Bill is presented, certify the estimates for the judiciary, as provided by the law.” (Italics supplied.) Paragraph Two of our Constitution is identical in language with the comparable section of the Maryland Constitution.

It is not necessary to refer to the Maryland Constitution to determine that the words “as provided by law” were never intended to have the meaning placed upon them by the Court’s opinion. The second paragraph of Sub-section B of Section 51 of the West Virginia Constitution reads as follows: “Each budget shall be divided into two parts, and the first part shall be designated ‘Governmental Appropriations’ and shall embrace an itemized estimate of the appropriations; (1) for the Legislature as certified to the board of public works in the manner hereinafter provided; (2) for the executive department; (3) for the judiciary department, as provided by law, certified to the governor by the auditor; (4) to pay and discharge the principal and interest of any debt of the State of West Virginia hereafter created in conformity with the Constitution, and all laws enacted in pursuance thereof; (5) for the salaries payable by the State under the Constitution and laws of the State; (6) for the aid of public schools in conformity with the laws of the State; (7) for such other purposes as are set forth in the Constitution and laws made in pursuance thereof.” (Italics supplied.) It is obvious, I believe, that the framers of the Budget Amendment to the Constitution, in using the phrase “as provided by law”, were not referring to a specific Act of the Legislature, appropriating a specific sum of money for the public schools for the pre *292 vious biennium, but were referring rather to the permanent laws of the State with regard to the public schools. There are many, beginning with the constitutional mandate of Section 1, Article XII: “The legislature shall provide by general law for a thorough and efficient system of free schools.” The legislative enactments are numerous, but I mention only a few: (1) The minimum teacher’s salary; (2) free text books for children; (3) teacher’s retirement system; (4) vocational education; and (5) the constitutional and statutory provisions earmarking the capitation tax, cigarette tax, chain store tax and many other sources of revenue for the General School Fund.

In the interpretation of the Constitution, words must be construed with reference to their plain and ordinary meaning. May v. Topping, 65 W. Va. 656 , 64 S. E. 848 . In construing the words used by the drafters of the Budget Amendment, we must look to their contemporaneous construction which consists simply in the understanding of those words by those who drafted the Amendment, members of the Legislature who submitted it to a vote, and by the people who approved it at the ballot box. Certainly, it was not then intended that the phrase “as provided by law” meant the amount of money appropriated “in the Budget Act” of the previous biennium for public schools, inasmuch as there was no Budget Act, of course, prior to the adoption of the Budget Amendment. It would be interesting to know how the section would have been interpreted by this Court had the question been presented to it subsequent to the adjournment of the first Legislature, after the effective date of the Budget Amendment. Black’s Law Dictionary, 3rd. Edition, defines the word law as follows: “ ‘Law’, without an article, properly implies a science or system of principles or rules of human conduct, answering to the Latin ‘jus;’ as when it is spoken of as a subject of study or practice. In this sense, it includes the decisions of courts of justice, as well as acts of the legislature. * * * ” The phrases “as provided by law” and “provided by law” have been inter *293 preted by many courts, including this one. In Lawson v. County Court of Kanawha County, 80 W. Va. 612, 618 , 92 S. E. 786 , this Court held that: “ * * * The phrases, ‘prescribed by law’ and ‘provided by law’, when used in constitutions, generally mean prescribed or provided by statutes. * * *” Vol. 34, Words and Phrases, Permanent Edition, page 680; Vol. 4, Words and Phrases, Permanent Edition, Page 319.

The interpretation placed upon Paragraph Two could have a disastrous effect in the future upon the fiscal affairs of this State. The Court said that the Board of Public Works must recommend to the Legislature all estimates submitted to it for the public schools, without reduction, if such estimates are equal to or less than the amount appropriated for such purpose by the Legislature for the previous biennium. In other words, this means that the Board of Public Works is dependent upon the Legislature’s previous appropriation for the minimum which it must recommend, unless the school authorities themselves, in preparing their estimates, voluntarily request a lesser amount. The sources of the general revenue of this State are very sensitive, to the economic status of the State. For example, during the year 1952, the sum of $78,651,577.00, or approximately eighty-nine per cent of all general revenue receipts, was derived from gross and consumer’s sales taxes, and the tax upon liquor, beer and cigarettes. A prolonged labor dispute in one or more vital industries can, and has, drastically affected these sources of income. If an economic depression, similar to the one which occurred slightly more than twenty years ago, should suddenly recur, and the general revenue dropped, as it well might by fifty per cent or more, the Board of Public Works would find itself in the dilemma of being required to approve all requests for money for the public schools, as long as they did not exceed the amount appropriated therefor by the previous Legislature, even though there was not available sufficient additional funds to operate the other branches and departments of government. The Board might well be *294 placed in the position of being forced to recommend for approval sums of money for the public schools which the financial condition of the State would not warrant, and then beseech the Legislature to reduce those amounts. However, the members of the Legislature, being sensitive to the political climate of their home communities, might well hesitate to make substantial reductions in appropriations for the public schools. Furthermore, the very purpose of the adoption of the Budget Amendment was to restrict the Legislature in the handling of the fiscal affairs of the State and to eliminate financial deficits. The Legislature can not, as has been very ably pointed out in the Court’s opinion, prepare a budget, and in a financial or economic crisis, neither could the Board of Public Works under this interpretation. The Board of Public Works, consisting of the Governor, Secretary of State, Auditor, Superintendent of Free Schools, Treasurer, Attorney General and Commissioner of Agriculture, the elective heads of the seven major departments of the executive branch of the State government, having authority under the Budget Amendment to prepare and present a budget document to the Legislature, and, from the very nature of their official duties, being more familiar with the financial needs and expected revenues of the State for the ensuing biennium, is not, and should not, be bound by an amount appropriated by the previous Legislature at a time when the prevailing economic conditions may have been entirely different. I do not believe that the people of this State would have approved the Budget Amendment if they had known that the words “as provided by law” had such meaning as has been placed upon them by the Court’s opinion.

The Court’s opinion goes even further. It not only requires the Board of Public-Works to approve the total amount requested for public schools, as long as it is equal to or less than the amount approved for that purpose by the previous Legislature, but it requires the Board to approve each item requested, in the sum approved by the previous Legislature for that particular item. The *295 opinion specifically states that the Board of Public Works violated the provisions of Paragraph Two because the amount requested for free text books for the second year of the 1953-55 biennium had been reduced to an amount less than that which had been appropriated by the Legislature for the second year of the 1951-53 biennium. This despite the fact that the total appropriation for free text books for the 1953-55 biennium exceeded the total appropriation for the 1951-53 biennium by $50,000.00. In other words, the Court’s opinion not only requires the Board of Public Works to recommend appropriations for the public schools, if required by those who have authority to do so, in a total amount as great as that appropriated for the same purpose by the previous Legislature, but it goes much further, and requires the Board of Public Works to approve each item for which appropriation was made by the previous Legislature, and requires that the amount which is recommended for each item requested, for each year of the biennium, shall be at least equal to that theretofore approved by the Legislature.

The Court’s opinion eliminates all appropriations as being those provided for the public schools, except appropriations for the “Department of Education, State Aid to Schools, and Text Books for Schools.” I do not know by what reasoning it includes these three items and eliminates appropriations for the hot lunch program, vocational education and the State Board of School Finance. The principal function of the State Board of School Finance is to distribute to the counties their proportionate share of State aid, for maintenance of the public school system,- in accordance with the formula adopted by the Legislature, and to supervise the budget problems of the County Boards of Education. Appropriations for the hot lunch program and vocational education, like those for free text books, are generally for the use and benefit of the public schools. . ,

As heretofore stated, an interpretation of Paragraph *296 Two of the Constitution was not necessary in deciding the issue involved in this case, and it is my earnest hope that those who are affected by that part of the opinion, which undertakes to interpret that paragraph, will understand that it is dicta and treat it as such.

I am authorized to say that Judge Lovins joins with me in this concurring opinion.