Dotson v. Gilbert , 129 W. Va. 130 ( 1946 )

I am of opinion that the judgment of the Circuit Court of Mingo County should be affirmed on the sole ground that the Town of Gilbert, in passing the ordinance on May 7, 1945, quoted in full in the majority opinion, integrated the conduct of elections with the system of "permanent registration of voters", as required by Chapter 44, Article 3, Section 14, Acts of the Legislature, Regular Session, 1941. That being true it is entirely unnecessary to discuss a suppositious case where no ordinance has been adopted by the municipality for the purpose of complying with that statute. If no effort had been made by the Town of Gilbert to obey the legislative mandate a question different from that here presented would arise. To put it in different words, it is unnecessary to discant on a case not presented by the record and engage in a discursive discussion with reference to an imaginary case.

The criticism here expressed is grounded on two propositions: (1) That dicta in one case should not be modified by dicta in another; and (2) that the expression in the case ofHill v. County Court, 126 W. Va. 797, 30 S.E.2d 239, modified in the instant case, is the true and correct rule which should be applied where no ordinance has been passed by a municipality.

A written opinion accompanying the decision in any case expresses the law of that case only so far as the statements in the opinion are consonant with and necessary to a decision. In this State the Constitution provides that a written syllabus must be prefixed to any opinion handed down by this Court. Constitution of West Virginia, Article VIII, Section 5. Any language contained in the opinion unnecessary to the decision of the case and not incorporated in the syllabus merely represents the reasoning processes of the particular Judge who wrote the opinion. Needless modification of one opinion by a subsequent one leads to confusion and destroys the stability which is a necessary concomitant of judicial expression. In my opinion a needless modification of an opinion by this Court is exemplified by the majority opinion in Holley v. Baking Co., decided March 5, 1946, 128 W. Va. 531, 37 S.E.2d 729. The absence of any reasons justifying modification of former opinions of this Court made in the Holley case, supra, are clearly stated in the concurring opinion by Judge Kenna. I do not mean to say that the Court should be averse to making changes in the law, when such changes are called for by conditions in existence at the time the case is presented, but before any change is made in former expressions of the Court the record of the case in which the modification is made should present the question for decision and be necessary for determination of the issues. However, courts should be ever mindful of the broad objective of stability and certainty in judicial expressions. In this case I think the majority opinion ignores that principle, and that the action of the Court increases rather than allays any confusion which is supposed to have arisen from the expressions in the Hill case, supra. That portion of the opinion herein which modifies certain expressions in the opinion of this Court in the Hill case is dicta. The expressions in the Hill case which are modified are likewise dicta. We now have an instance of dicta in one case modifying dicta in another. Judicial expression by way of obiter or dictum is seldom justified, should be sparingly used and then arguendo.

I think that the opinion in this case which lays down the rule by way of dicta that the Permanent Registration Law applies to municipalities without the passage of an ordinance by the municipality is incorrect. The Permanent Registration Law by the terms of the legislative enactment is made a part of Chapter 3, Code. The provisions of Chapter 3, Code, do not apply to municipal elections except "in those instances in which they are made expressly applicable." Chapter 43, Article 1, Section 1, Acts of the Legislature, Regular Session, 1941. The provisions of Section 13a, Chapter 44, Acts of the Legislature, 1941, contain directory provisions with reference to the use of municipal precinct registration records, but those provisions do not make the Permanent Registration Law "expressly applicable" to municipalities. Chapters 43 and 44 deal with the same subject matter, were passed at the same session of the Legislature, and must be read and considered together. State v. Hoult, 113 W. Va. 587,169 S.E. 241; State v. Reed, 107 W. Va. 563,149 S.E. 669.

The opinion of the Court in this case rests it conclusions upon Section 14, Article 3, Chapter 44, reading as follows: "It shall be the duty of each municipality by ordinance to make provision for integrating the conduct of all municipal elections with the system of 'Permanent Registration of Voters'. Such ordinances, shall, to the extent that they are reasonably applicable, parallel those provisions of chapter three of the official code, which integrate county-state elections with the 'Permanent Registration System'. The provisions of this act shall supersede conflicting provisions in existing municipal charters and shall be deemed as amendments to such charters." It will be noted that the statute just quoted is made a part of Chapter 8, Code, the title of the Act clearly showing that Section 14, Article 3, Chapter 8 of the Code was repealed, and the quoted statute was enacted in lieu thereof. I can see no repugnancy or inconsistency in any part of Chapters 43 and 44, which were made a part of Chapter 3, Code. Nor can I see any inconsistency between Section 14, Article 3, of Chapter 8, as reenacted by Chapter 44, Acts of the Legislature, 1941, Regular Session, and the other sections of Chapters 43 and 44, Id. The Legislature expressly provided that the provisions of Chapter 3, Code, should not apply to municipalities unless made so by statute and Section 13a of Chapter 43, Acts, 1941, does not make the Permanent Registration Law expressly applicable. Section 14, Article 3, Chapter 8, as reenacted by Chapter 44, Acts, 1941, does not make the Permanent Registration Law applicable. The last-mentioned statute contains a legislative mandate requiring municipalities to adopt an ordinance integrating municipal elections with the Permanent Registration Law. The Legislature undoubtedly had the power to change municipal charters in this State by the reenactment of Section 14, Article 3, Chapter 8, Code.Booten v. Pinson, 77 W. Va. 412, 421, 89 S.E. 985. Moreover, the Legislature had the right to impose the provisions of the Permanent Registration Law on municipalities without the passage of any ordinance, but instead of so doing the Legislature provided that municipalities should adopt ordinances integrating the Permanent Registration system. If the Legislature intended to make the Permanent Registration Law applicable, why require that municipalities adopt an ordinance? The opinion of the Court relies entirely upon Section 14, Article 3, Chapter 8, Code, as reenacted by Chapter 44, Acts of 1941. It seems paradoxical, to say the least, that a statute commanding a municipality to adopt an ordinance for the purpose of making a statute applicable, is a sufficient premise from which to reason that even though no ordinance is passed that said statute applies.

I agree that a municipality cannot take advantage of its own unauthorized or wrongful action, but I do not agree that the legislative enactment made applicable by its very terms upon the condition that a municipality adopts an ordinance, becomes effective without the required municipal action. If the municipality should fail to comply with the provisions of Code, 8-3-14, as amended by Chapter 44, certainly any interested person could compel compliance with the legislative mandate.

For the foregoing reasons I am constrained to say that in my opinion the Court in this case has wholly disregarded the provisions of Chapter 43, Article 1, Section 1, Acts of the Legislature, 1941, and given undue weight to Code, 8-3-14, as amended, and has substituted therefor an uncertain, illogical and strained application of a clear statutory provision. If it were the intent of the Legislature, as set forth in the opinion herein, there would have been no occasion or necessity for the adoption of any ordinance by a municipality.

I am authorized to say that Judge Kenna joins in this concurring opinion.