328
S.E.2d 136 (1985)
James
M. THOMSON, et al., etc. v. Charles S. ROBB, Governor of Virginia, et
al.
Record
No. 850171.
Supreme
Court of Virginia.
March
29, 1985.
William Griffith Thomas, Alexandria
(Walter A. Marston, Jr., Richmond, S. Miles Dumville, Norfolk, David B. Irvin,
Richmond, Thomas & Fiske, P.C., Alexandria, on briefs), for petitioners.
William G. Broaddus, Chief Deputy
Atty. Gen. (Gerald L. Baliles, Atty. Gen., John S. Morris, III and William J.
Bridge, Asst. Attys. Gen., on briefs), for respondents.
Present: All the Justices.
CARRICO, Chief Justice.
On March 5, 1985, James M. Thomson
and A.L. Philpott, Speaker of the House of Delegates (the petitioners), filed
in this Court an original petition for a writ of mandamus against Charles S.
Robb, Governor of Virginia, and Laurie Naismith, Secretary of the Commonwealth
(the respondents). The petitioners seek a writ of mandamus compelling the
Governor to commission *137 Thomson a member of the State Corporation
Commission (the Commission or SCC) and requiring the Secretary of the
Commonwealth to administer to Thomson the oath of office.
The facts giving rise to the present
controversy are not in dispute. On January 30, 1985, pursuant to a joint
resolution, the General Assembly proceeded to consider the selection of a
member of the Commission to fill the unexpired term of Junie L. Bradshaw. Two
persons, James M. Thomson and Edward E. Lane, were nominated for the position.
Thomson received 86 affirmative
votes in the House of Delegates and 13 in the Senate. Lane received 12
affirmative votes in the House and 26 in the Senate. Hence, Thomson received a
majority of the votes in the House and Lane a majority in the Senate. Thomson's
combined count, however, totalled 99 votes to Lane's 38.
Based upon the combined total, the
Speaker of the House of Delegates declared that Thomson, "having received
a majority of the votes cast by the joint vote of the two houses of the General
Assembly, was ... a duly elected member of the State Corporation
Commission." The Clerk of the House of Delegates notified the Governor
that Thomson had been elected a member of the Commission. The Clerk of the
Senate, however, notified the Governor that, because neither nominee had
received "`the vote of a majority of the members elected to each house of
the General Assembly, there has been no election of a member of the State
Corporation Commission.'"
On February 27, 1985, citing an
opinion of the Attorney General dated February 1, 1985,[1] and noting Thomson's
failure to receive "a majority vote in each House of the General
Assembly," the Governor declined to commission Thomson a member of the Commission.
The next day, the Secretary of the Commonwealth denied Thomson's request to
administer him the oath of office. The present petition for mandamus was filed
a few days later.
The dispositive question in the case
is whether the election of a member of the Commission requires, as the
petitioners contend, a majority of the combined vote of the two houses of the
General Assembly or, as the respondents contend, a majority vote in each house.
Resolution of this question involves application of art. IX, § 1 of the Constitution
of Virginia. In pertinent part, that constitutional section provides:
There shall be a permanent
commission which shall be known as the State Corporation Commission and which
shall consist of three members.... Members of the Commission shall be elected
by the General Assembly and shall serve for regular terms of six years....
Whenever a vacancy in the Commission shall occur or exist when the General
Assembly is in session, the General Assembly shall elect a successor for such
unexpired term. If the General Assembly is not in session, the Governor shall
forthwith appoint pro tempore a qualified person to fill the vacancy for a term
ending thirty days after the commencement of the next regular session of the
General Assembly, and the General Assembly shall elect a successor for such
unexpired term. [Emphasis added.]
Also involved is Code § 12.1-6,
which provides in pertinent part:
The Commission shall consist of
three members. Members of the Commission shall be elected by the joint vote of
the two houses of the General Assembly for regular staggered terms of six
years....
Whenever a vacancy in the Commission
shall occur or exist when the General Assembly is in session, the General
Assembly shall elect a successor for such unexpired term. If the General
Assembly is not in session, the Governor *138 shall forthwith appoint pro
tempore a qualified person to fill the vacancy for a term ending thirty days
after the commencement of the next regular session of the General Assembly, and
the General Assembly shall elect a successor for such unexpired term. [Emphasis
added.]
The petitioners present an extensive
review of the history of art. IX, § 1 of the Constitution and Code § 12.1-6.[2]
This review shows that the State Corporation Commission was created by § 155 of
the Constitution of 1902, which provided for the appointment of commissioners
by the Governor, "subject to confirmation by the General Assembly in joint
session." Section 155 also allowed the General Assembly, after January 1,
1908, to provide for "the election of the members of the commission by the
qualified voters of the State." Code § 1313(a)(2), adopted incident to
approval of the 1902 Constitution, provided for confirmation of SCC members by
the General Assembly, "in joint session."
In 1918, the General Assembly
adopted legislation providing for the election of commission members "by
the qualified voters of the State." Acts 1918, ch. 55. Popular election of
commissioners continued until 1926, when the General Assembly again provided for
the appointment of commissioners by the Governor, "subject to the
confirmation of the [G]eneral [A]ssembly, in joint session." Acts 1926,
ch. 37.
Also in 1926, a commission was
appointed to recommend changes in the then current Constitution. Acts 1926, ch.
481. The commission recommended that § 155 of the Constitution, relating to the
selection of SCC commissioners, remain unchanged. This recommendation, however,
failed to secure the approval of the General Assembly. The House of Delegates
approved an amendment which provided that "commissioners shall be elected
by the General Assembly in joint session." H.Jour., Ex.Sess. 1927, at 92.
The Senate amended the House version to provide that commissioners be
"appointed by the Governor, subject to confirmation by the General
Assembly, or elected by the General Assembly, as may be provided by law."
S.Jour., Ex. Sess. 1927, at 227. Conferees appointed by the two houses finally
agreed upon an amendment which was adopted by both houses. S.Jour., Ex.Sess.
1927, at 291-92; H.Jour., Ex.Sess. 1927,
at 307. The amendment, which became part of § 155 effective in 1928, provided
that SCC members "shall be elected by the [G]eneral [A]ssembly," the
same language that now appears in art. IX, § 1, quoted above.
The statutory provision calling for
the election of SCC commissioners by "the joint vote of the two houses of
the General Assembly" first found its way into the Code in a 1944
amendment to then Code § 3694. Later codified as § 12-9, the language was
retained in the statutory enactment incident to adoption of the 1971 revision
of the Constitution and is now contained in § 12.1-6, quoted earlier.
The petitioners also submit a
comprehensive review of the actual manner in which they say elections of SCC
commissioners were conducted during the period between the 1928 amendment to §
155 of the Constitution and the constitutional revision in 1971. During that
period, the petitioners assert, "there was never a distinction between
those votes cast in the Senate and those cast in the House, and the number
required for election was always one more than half of the combined total votes
cast."[3]
The petitioners then point out that
the official report of the Commission on Constitutional Revision, which
preceded adoption of the 1971 Constitution, recommended no change in the basic
structure of the SCC and stated the intent to leave intact those provisions
"dealing with membership, terms of office, and manner of selection."
*139 In fact, the petitioners say, the 1928 language of § 155, viz.,
"[t]he commissioners shall be elected by the [G]eneral [A]ssembly,"
was carried forward into art. IX, § 1 of the present Constitution. When this
action is coupled with the General Assembly's reenactment of the "joint
vote of the two houses" language in Code § 12.1-6 and both actions are
viewed in their historical perspective, the petitioners submit, there emerges
the clear intent to retain the manner of selecting SCC commissioners whereby
"the votes cast in both the House and Senate were always combined, and the
number necessary to election was always one more than half of those votes
cast."
The petitioners contend that Code §
12.1-6 is at the very heart of this case. Citing Quesinberry v. Hull, 159 Va.
270, 274, 165 S.E. 382, 383 (1932),[4] the petitioners argue that the General
Assembly "does not function under a grant of power" and "may do
those things ... which are not forbidden to it by the Constitution."[5]
The petitioners say that the language of art. IX, § 1 of the Virginia
Constitution, viz., "[m]embers of the Commission shall be elected by the
General Assembly," merely provides a general constitutional framework for
the election of SCC commissioners and does not work a limitation upon the
General Assembly's authority to specify the method by which it shall conduct
such elections. The General Assembly acted within its authority, therefore, the
petitioners conclude, when it specified in Code § 12.1-6 that commissioners
should be elected by "the joint vote of the two houses of the General
Assembly."
The constitutional provision in art.
IX, § 1, however, and not Code § 12.1-6, is at the heart of this case. The Code
section is of secondary importance; it
receives consideration only if the constitutional provision in issue is not a
limitation upon legislative authority or is ambiguous. And, while the
petitioners' historical review is interesting, it is relevant only if the
constitutional language in question is indeed ambiguous. Courts follow the rule
that, if a constitutional provision is free of ambiguity, construction is
impermissible and resort to legislative history or other extrinsic evidence is
not allowed. Harrison v. Day, 200 Va. 439, 448, 106 S.E.2d 636, 644 (1959); Town of South Hill v. Allen, 177 Va. 154,
164, 12 S.E.2d 770, 773-74 (1941).
We are of opinion that the language
of art. IX, § 1 constitutes an unambiguous limitation upon the authority of the
General Assembly with respect to the manner in which SCC commissioners are
selected. The constitutional section states that "[m]embers of the
Commission shall be elected by the General Assembly." The General Assembly
is a bicameral body; "[t]he
legislative power of the Commonwealth shall be vested in a General Assembly,
which shall consist of a Senate and House of Delegates." Va. Const. art.
IV, § 1. In Virginia's bicameral legislature, no law shall be enacted except by
bill and no bill shall become law unless "upon its final passage a vote
has been taken thereon in each house ... and a majority of those voting in each
house ... recorded in the affirmative." Va. Const. art. IV, § 11(d).
The petitioners argue, however, that
while bicameralism may require a separate, majority vote of each house where
the passage of a statute is involved, this proposition "does not hold true
where the legislators are acting as electors for purposes of selecting persons
for the judiciary and for other public offices." If the proposition is
valid, the petitioners assert, it "is being uniformly violated at both the
federal and state level[s] throughout the United States *140 with regard to the
election of judges and other public officials."
The petitioners say that, at the
federal level, while the United States Constitution provides in art. II, § 2
for the appointment of justices of the Supreme Court by the President, with the
advice and consent of the Senate, "the Constitution is silent" with
respect to the selection of circuit and district judges, and the manner of
their selection is determined by statute. The petitioners misread the
Constitution, however; it is not silent
with respect to the selection of federal circuit and district judges.
These judges are judges of
"inferior courts," as provided in art. III of the Constitution.
Section 1 of this article states in part that "[t]he judicial power of the
United States, shall be vested in one supreme court, and in such inferior
courts as the Congress may from time to time ordain and establish"
(emphasis added). Article II, § 2 of the Constitution provides in pertinent
part that the President shall "nominate, and by and with the advice and consent
of the Senate, shall appoint ... judges of the Supreme Court, and all other
officers of the United States, whose appointments are not herein otherwise
provided for, and which shall be established by law" (emphasis added).
United States circuit and district judges are among the "other officers of
the United States" enumerated in art. II, § 2:
It is conceded, of course, that a
United States [Circuit or] District Judge is a judge of an "inferior"
court within the meaning of the term employed in Article III; and that such judges must be appointed by and
with the advice and consent of the Senate as provided by Article II, Section 2.
United States v. Allocco, 305 F.2d
704, 708 (2d Cir.1962), cert. denied, 371 U.S. 964, 83 S. Ct. 545, 9 L. Ed. 2d
511 (1963).
The petitioners also say that in
seven states, other than Virginia, where the legislature is involved in the
selection of judges, not one requires a separate majority vote of each house of
the legislature. But we find that in six of the instances cited, Delaware,
Hawaii, Maryland, New Jersey, New York, and Vermont, constitutional provisions,
not just statutory enactments, clearly permit other than bicameral selection of
the particular judges involved.
The Constitution of the seventh
state cited, South Carolina, provided that circuit judges "shall be
elected by `joint ballot' of the General Assembly."[6] In State v. Shaw, 9
S.C. 94 (1877), the South Carolina Supreme Court considered the "joint
ballot" provision in a proceeding involving the removal of a circuit
judge. The judge had been elected by viva voce vote of the legislature in
accordance with a general constitutional provision requiring that in "all
elections by the General Assembly, or either house thereof, the members shall
vote viva voce." Id. at 135. The question was whether the words "`by
joint ballot'" meant "`by joint vote'" so that the election of
judges could be conducted "by voting viva voce." Id. at 137. The
court answered the question in the negative and removed the judge in question.
The petitioners state that in Shaw,
the court indicated there was no doubt that the term "joint ballot"
meant "a judge was elected by the combined vote of the two houses of the
South Carolina General Assembly, and not by the separate vote of each
house." This may be true, but the court said that the word
"joint" in the phrase "joint ballot of the General
Assembly" modified the term "General Assembly" and not the word
"ballot." Id. at 135. Hence, a "joint Assembly" was
required by the constitutional language. We fail to see how this conclusion
helps the petitioners in this case. The General Assembly of Virginia did not
meet in "joint Assembly," or joint session, when it conducted the
election at issue, and there is no contention an election in joint session was
authorized. Be that as it may, Code § 12.1-6, and not *141 the Constitution,
uses the word "joint" in this case.
Petitioners also cite Richardson v.
Young, 122 Tenn. 471, 125 S.W. 664 (1909), and Snow v. Hudson, 56 Kan. 378, 43
P. 260 (1896). In Richardson, a Tennessee statute provided that members of the
state board of elections "`shall be elected by the joint vote of both
houses of the general assembly.'" 122 Tenn. at 486, 125 S.W. at 666. The
court said this provision authorized the members of the General Assembly to
exercise "the appointing power by legislative act, or in joint session of
the members of the two houses," id. at 516, 125 S.W. at 674, in which
joint session all members would have "the same authority and only one
vote." Id. at 539, 125 S.W. at 680. Importantly, the Tennessee
Constitution provided that "`[t]he election of all officers and the
filling of all vacancies not otherwise directed or provided by this
constitution shall be made in such manner as the legislature shall
direct.'" Id. at 504, 125 S.W. at 671 (emphasis added).
In Snow, a state statute required
the concurrence of a majority of the members elected to each house of the
legislature for the election of a state printer. The court declared the act
invalid because in derogation of a constitutional section which provided that
the state printer "shall be elected by the legislature in joint
session." 56 Kan. at 383, 43 P. at 261. The court stated that the term
"joint session" has "a well-recognized meaning, and implies the
meeting together and commingling of the two houses, which, when so met and
commingled, act as one body." Id. at 386-87, 43 P. at 262. But, here again,
a specific constitutional provision required unicameral action.
Thus, in each instance cited by the
petitioners, some constitutional provision permitted other than bicameral
action in the legislative election of public officials. The authorities cited,
therefore, fail to support the petitioners' argument that where a constitution
provides for the election of public officials by a bicameral legislature, the
legislature by statute may permit such election by some method different from
the majority vote of each house.
The petitioners urge, however, that
"the `bicameral vote' method contended for by respondents should not be
held to apply by presumption, but should only apply in instances where such
method of election is expressly provided for, as is the case in the Virginia
Constitution with regard to the election of the judiciary." Here, the
petitioners point to Va. Const. art. VI, § 7, which provides that justices of
the Supreme Court and judges of all other courts of record "shall be
chosen by the vote of a majority of the members elected to each house of the
General Assembly." This provision indicates, the petitioners say, that
when the framers of the constitution intended to require bicameral action, they
knew how to express such intent clearly.
We do not rely upon any presumption,
however, in concluding that bicameral action is required in the selection of
SCC commissioners. The conclusion is apparent from the face of the Constitution
when it provides in art. IV, § 1 that the General Assembly shall be bicameral
in nature and provides in art. IX, § 1 that "[m]embers of the Commission
shall be elected by the General Assembly." And, as indicated earlier,
since art. IX, § 1 imposes a limitation upon the authority of the General
Assembly in the manner of selecting SCC commissioners, the burden is upon the
petitioner to show that a specific constitutional provision permits selection
other than by bicameral action, rather than upon the respondents to show that
the bicameral "method of election is expressly provided for." The
petitioners, of course, can point to no such specific constitutional provision.
Furthermore, we note that when the
framers intended to require other than bicameral action, they knew how to
express such intent. Article V, § 2 provides for the election of the Governor
"by the qualified voters of the Commonwealth" and states that
"[t]he person having the highest number *142 of votes shall be declared
elected; but if two or more shall have
the highest and an equal number of votes, one of them shall be chosen Governor
by a majority of the total membership of the General Assembly" (emphasis
added).
Finally, the petitioners argue that
if the Constitution requires bicameral action in the selection of SCC
commissioners, the requirement was satisfied when a majority vote of the
members of each house resulted in the enactment of Code § 12.1-6. The ready
answer to this argument is that it suggests the Constitution may be amended,
without the participation of the voters, as long as the amendment receives the favorable
vote of the majority of the members of each house.
Because we find that the election of
a member of the State Corporation Commission requires a majority vote of the
members of each house of the General Assembly and because James M. Thomson did
not receive the required vote, the petitioners are not entitled to the relief
requested. Accordingly, we will deny them a writ of mandamus.
Writ denied.[7]
COMPTON, J., dissenting.
STEPHENSON and RUSSELL, JJ., join in
dissent.
COMPTON, Justice, dissenting.
The majority's logic is flawed. I
cannot agree with the proposition espoused for the Court that simply because
Virginia has a bicameral legislature, selection of SCC commissioners must be
accomplished by a separate election in each house, under a general constitutional
mandate that provides: "Members of the Commission shall be elected by the
General Assembly...." The conclusion drawn does not flow reasonably from
the basic premise.
Furthermore, I disagree with the
idea that the foregoing broad and expansive constitutional provision operates
as a limitation upon the authority of the General Assembly.
"It is the settled law of this
State that, outside of the powers ceded to the Federal government, the power of
the General Assembly to enact statutes is without limit, except as restrained
by the Constitution of the State. The Constitution of the State is a
restraining instrument, and not a grant of power. If there be any restraints by
implication, the restraint must be so necessary and so plainly manifest as to require
the implication in order to enforce the restraints expressly imposed."
Breckenbridge v. County School Board, 146 Va. 1, 5-6, 135 S.E. 693, 695 (1926).
Here, there is no express restraint
on the power of the legislature to enact Code § 12.1-6, providing for selecting
SCC commissioners *143 by the joint vote of the two houses, and no such
restraint is necessarily implied. This conclusion is buttressed by the fact
that the framers demonstrated the ability, and found it necessary, to limit
expressly the power of the legislature with regard to the election of the
judiciary by providing in article VI, section 7, of the Constitution that
judges "shall be chosen by the vote of a majority of the members elected
to each house of the General Assembly." If the majority is correct, why is
the limiting language in the judicial article necessary?
I would issue a writ of mandamus.
STEPHENSON and RUSSELL, JJ., join in
dissent.
NOTES
[1] In his opinion of February 1,
1985, the Attorney General stated that the election of a member of the State
Corporation Commission required "a majority vote in each house of the
General Assembly." A previous Attorney General had rendered an opinion to
the same effect in 1972.
[2] See Norris v. Gilmer, 183 Va.
367, 374-77, 32 S.E.2d 88, 91-92 (1944), for the historical background of these
sections up to 1944.
[3] The petitioners state that the
House and Senate journal records documenting the various SCC elections since
the constitutional revision of 1971 have been "inconsistent."
[4] Quesinberry involved an act of
the General Assembly providing for the popular election of a trial justice in
Carroll County. The question was whether the act constituted special
legislation.
[5] The petitioners do not quote
fully from Quesinberry; they omit the
italicized language in the following excerpt: "The legislature functions
under no grant of power. It can do those things which are not forbidden by the
State or Federal Constitutions, or which are not repugnant to those elementary
social rights upon which society, as we know it, rests." 159 Va. at 274,
165 S.E. at 383.
[6] S.C. Const. art. IV, § 13.
[7] The dissent questions why, if
the majority is correct, the limiting language is necessary in the judicial
article, art. VI, § 7. The Report of the Commission on Constitutional Revision
supplies the answer to that question. At page 199 of the Report, following
proposed art. VI, § 7, a comment notes that the words, "`the joint vote of
the two houses,'" which appeared in § 91 of the judicial article of the
old Constitution, have been replaced in proposed art. VI, § 7 with the words,
"`a majority of the members elected to each house.'" The comment then
states:
The reason for the change is to
clarify an ambiguity. The [§ 91] language is subject to the interpretation that
the two houses must vote together and a majority of the total vote would
suffice for election.... What is of course meant by the [§ 91] language, however,
and made explicit by the substituted language is that a majority in each house
vote favorably.
The "joint vote of the two
houses" language of § 91 of the old Constitution, criticized as ambiguous
in the foregoing comment, is, of course, the exact language of present Code §
12.1-6, upon which the dissent would solely rely to issue a writ of mandamus in
this case. But "[m]andamus is available to compel the performance of an
administrative or ministerial act by a public official only where there is a
clear legal duty upon him to act." Davis v. Dusch, 205 Va. 676, 682, 139
S.E.2d 25, 29 (1964). Query: Even if we could rely upon a statute in this case,
if the "joint vote" language in old § 91 was ambiguous, as, indeed,
it was, why is not the same language ambiguous in Code § 12.1-6 and, therefore,
insufficient to establish the "clear legal duty" predicate to the
issuance of a writ of mandamus?