Lance v. Board of Education

170 S.E.2d 783, 153 W. Va. 559, 1969 W. Va. LEXIS 199

• Court: West Virginia Supreme Court
• Decided: July 8, 1969
• Docket: No. 12809
• Status: Published

Opinions

Calhoun, Judge:

This case, on appeal from a final judgment of the Circuit Court of Roane County, involves two declaratory judgment actions instituted in that court pursuant to Article 13, Chapter 55, Code, 1931, as amended, and Rule 57 of the Rules of Civil Procedure, by Granville H. Lance, Fred Hill, Chester C. Dodd, Jr., Brady D. Hickel, Jr., and Joe A. Craddock, as plaintiffs, against the Board of Education of Roane County, a corporation, the individual members of that body and Mirrell Clark, Superintendent of Schools of Roane County, West Virginia, as defendants. Inasmuch as the two actions involve identical parties plaintiff, identical parties defendant, and similar or identical legal questions, they were consolidated in the trial court for hearing and for decision. In this Court, for the sake of brevity and clarity, the parties will be referred to as plaintiffs and as defendants in accordance with their designation in the civil actions in the trial court.

In one action, the plaintiffs challenge the validity of the three-fifths vote requirement of Article X, Section 8 of the Constitution of West Virginia and Sections 4 and 14 of Article 1, Chapter 13, Code, 1931, as amended, dealing with elections held by political subdivisions of the state for determination whether bond indebtedness shall be incurred. In the other action, the plaintiffs challenge the validity of the sixty percent vote requirement provided by Article X, Section 1 of the Constitution of West Virginia, commonly referred to as the Tax Limitation Amendment, relating to elections to authorize local tax levying bodies to make additional levies for tax purposes in excess of the levies provided for in the Tax Limitation Amendment.

The plaintiffs contend that the constitutional and statutory provisions in question are invalid and unenforceable on the ground that they are in contravention of the Equal Protection Clause of the Fourteenth Amendment and the Guaranty Clause of Article IV, Section 4 of the Constitution of the United States.

By an order entered in the consolidated actions on November 22, 1968, the trial court sustained the defendants’ motions for judgment on the pleadings made pursuant to Rule 12 (c) of the Rules of Civil Procedure; held that the West Virginia constitutional and statutory provisions in question are constitutionally valid and enforceable; and directed that the complaints be dismissed and that the consolidated actions be stricken from the docket. From the final judgment of the trial court, the plaintiffs have been granted the appeal to this Court. After the appeal was granted, this Court granted to the plaintiffs leave to move to reverse the judgment of the trial court pursuant to Code, 1931, 58-5-25 and Rule IX of the Rules of this Court. In these circumstances, the case was submitted for decision by this Court upon the original record, upon typewritten briefs and upon oral argument of counsel.

The defendants, particularly the board of education, at a special election held on April 29, 1968, submitted to the voters of Roane County the question of issuing bonds in the amount of $1,830,000 for the purpose of alleviating the overcrowded condition of school classrooms and facilities, removing fire hazards, providing for more adequate and more modern vocational and educational facilities, and for the purpose of meeting the needs of disadvantaged children. At the same special election, there was submitted to the voters of the county a proposal for the laying of additional tax levies in excess of the regular authorized levies for a period of five years, a part of the proposed additional revenue to be used for current expenditures and a part for capital improvements. A canvass of the votes revealed that 2,887 or 51.55% of the total votes cast favored the issuance of the bonds and 2,866 or 51.51% of the total votes cast were in favor of the additional levy.

Subsequently the plaintiffs appeared before the board of education in their own behalf and in behalf of other persons who had voted with the majority on the two issues and demanded that the board authorize the laying of the additional tax levies and the issuance and sale of the proposed bonds on the ground that the sixty percent vote requirements in the constitution and the statutes were invalid in that they denied to the plaintiffs and others similarly situated the equal protection of the laws guaranteed to them by the Fourteenth Amendment and the republican form of government guaranteed to every state by Article IV, Section 4 of the Constitution of the United States.

Upon the refusal of the board to grant these requests or demands, the plaintiffs instituted the two declaratory judgment actions in the Circuit Court of Roane County by which they requested that the court declare the sixty percent vote requirements in question to be unconstitutional and void; and, by way of affirmative relief, the plaintiffs prayed in one action that the court require the board of education to proceed to authorize the issuance of the proposed bonds, to take all necessary steps in accordance with law to effectuate the sale of the bonds, and to provide for the application of the proceeds of the sale thereof, in accordance with the board’s original proposal submitted to the voters at the special election; and similarly, in the other action, the plaintiffs prayed that the board of education be required to proceed according to law to impose the additional levy in accordance with the expressed will of the majority of the voters who voted upon that issue at the special election.

An answer was filed to the complaint in each of the two actions but, we believe, they raise no material issue of fact. A decision of the case involves primarily the legal question whether the West Virginia constitutional and statutory provisions in question are in contravention of the Constitution of the United States and are therefore void and unenforceable; and also the question whether the case presents a justiciable controversy.

Article VI of the Constitution of the United States contains the following language: “This Constitution, and the Laws of the United States which shall be made in Pursuance thereof; and all Treaties made, or which shall be made, under the Authority of the United States, shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” Article I, Section 1 of the Constitution of West Virginia provides: “The State of West Virginia is, and shall remain, one of the United States of America. The Constitution of the United States of America, and the laws and treaties made in pursuance thereof, shall be the supreme law of the land.” By that clear and unambiguous language of the constitution of this state, it is expressly recognized that if there be an inconsistency or conflict between a provision of the constitution of this state and a provision of the Constitution of the United States, the latter must be regarded as paramount, must prevail, and the former must yield. In Carrington v. Rash, 380 U. S. 89, the Court held that a provision of the Constitution of the State of Texas was in conflict with the Equal Protection Clause of the Fourteenth Amendment and that the provision of the state constitution was therefore unconstitutional and invalid. Reynolds v. Sims, 377 U. S. 533, 584, contains the following language: “When there is an unavoidable conflict between the Federal and a State Constitution, the Supremacy Clause of course controls.” See also State ex rel. Witt v. State Canvassing Board, 78 N. M. 682, 437 P.2d 143. We consider it unquestionable that if a provision of the Constitution of West Virginia is in conflict or inconsistent with one or more provisions of the Constitution of the United States, it is both the right and duty of this Court, when such a case is presented, to declare the provision of the state constitution to be invalid and unenforceable.

It is not questioned that the declaratory judgment actions were proper proceedings by which to require a judicial declaration of the rights of the parties in relation to the controversy in this case. This case presents an actual controversy and one which is justiciable within the intent and purpose of the declaratory judgment laws of this state. In a number of cases, this Court has held that the constitutionality of a legislative enactment may be determined in a civil action instituted pursuant to the statute and court rules of this state pertaining to declaratory judgments. Nuckols v. Athey, 149 W. Va. 40, pt. 2 syl., 138 S. E.2d 344.

In the present case, the plaintiffs assert that the effect of the sixty percent vote requirements in question is to debase or dilute the weight or force of an affirmative vote when considered in relation to the weight or force of a negative vote. More specifically, the plaintiffs contend that a negative vote has one and one-half the force of an affirmative vote and that, therefore, two negative votes have the force of three affirmative votes. Article 2, Section 4 of the Constitution of West Virginia provides: “Every citizen shall be entitled to equal representation in government, * * In referring to and applying that constitutional provision, the Court made the following statement in State ex rel. Smith v. Gore, 150 W. Va. 71, 75, 143 S. E.2d 791, 794: “That constitutional provision is clear and unambiguous in its meaning. It provides that every citizen shall have equal representation in government.” The provision of our state constitution quoted immediately above is similar in its purpose to that of the Equal Protection provision of the Constitution of the United States. The West Virginia constitutional and statutory provisions for the holding of elections by which voters may determine whether bonds shall be issued and whether extra levies of taxes shall be made represent some of the very few instances in which the individual voter is permitted to have a direct and wholly effective voice in government. The two issues submitted to the will of the voters in the special election in Roane County involve the question whether taxes shall be collected to meet the extra levies and to retire the bonds. The voters were thereby also permitted to voice their sentiments and their views on the question of improved public schools and public school facilities for the county as a basic aspect of government.

As we have stated previously, the plaintiffs, speaking in behalf of themselves and all other voters who voted with the majority in the special election, assert that, by the debasement and dilution of their affirmative votes when considered in relation to the negative votes, they have been denied their rights under the Equal Protection provision of the Fourteenth Amendment of the Constitution of the United States. It is now clear, we believe, that such an assertion presents a justiciable question, cognizable by the courts, and not a mere political question.

Baker v. Carr, 369 U. S. 186, involved a declaratory judgment proceeding instituted in a United States District Court in Tennessee by certain voters qualified to vote for members of the General Assembly of Tennessee, in their own behalf and in behalf of other voters similarly situated, alleging that, by reason of a certain Tennessee statute, seats in the general assembly were arbitrarily and capriciously apportioned in such a manner as to dilute or debase the votes of the complaining voters, thereby denying to them their constitutional rights to equal protection of the laws under the Fourteenth Amendment. The Court held that the allegations of the denial of equal protection of the law, in the circumstances of the case, presented a justiciable cause of action upon which the complaining voters were entitled to a trial and a judicial decision. In the concluding portion of the opinion, the Court stated: “We conclude that the complaint’s allegations of a denial of equal protection present a justiciable constitutional cause of action upon which appellants are entitled to a trial and a decision. The right asserted is within the reach of judicial protection under the Fourteenth Amendment.” The decision of the Court in this respect has been adhered to and reaffirmed in subsequent cases including Reynolds v. Sims, 377 U. S. 533 and Wesberry v. Sanders, 376 U. S. 1. See also Armentrout v. Schooler, 409 S. W.2d 138 (Mo. 1966).

In relation to the problems existing in Roane County-in connection with the public school system, the plaintiffs have made the following allegations in their complaints:

“There have been no new schools or major additions or improvements to existing schools in Roane County since 1946 when the voters authorized the issuance of $5,000,000 bonds for such purpose. Since that time only minor improvements have been made to existing facilities, the outlays for such improvements averaging less than 4% of the annual budget for current expenditures. As a consequence the schools in the county have become old and inadequate for modern educational needs. There are an average of 31.2 pupils per elementary classroom and 25.5 pupils per secondary classroom in 1966-1967 compared with the state average of 28 pupils per elementary classroom and 23.6 pupils per secondary classroom. Many of the classrooms and other facilities are makeshift in nature resulting from efforts to adapt old facilities to existing needs. Dangerous conditions have been created by the deterioration of many of the school structures. At least two major schools within the county, Spencer Elementary School and Spencer High School, have serious fire hazards which have resulted in orders from the State Fire Marshal and the State Superintendent of Schools closing certain parts of the facilities, prohibiting their further use until the conditions have been corrected and eliminated.”

The plaintiffs further allege in their complaints that during the years 1964 to 1968, inclusive, six proposals of excess levies or bond issues for public school purposes have been submitted by the county board of education for approval of the voters of Roane County at elections held for that purpose and that in all instances the proposals received majorities of affirmative votes, which majorities ranged from 51.51% to 55.84%, but that in each instance the proposal was rejected because of a failure of the proposal to receive affirmative votes totaling at least sixty percent of the total number of votes cast. It is manifest, therefore, that there exists in this connection in Roane County a genuine controversy between the plaintiffs and the defendants and that it is a controversy of quite considerable magnitude and importance.

Pertinent cases which followed Baker v. Carr, 369 U. S. 186, developed the “one person, one vote” concept. This concept was enunciated in Gray v. Sanders, 372 U. S. 368. In the Gray case, the Court held that the Georgia county unit system was unconstitutional. The case involved a declaratory judgment proceeding instituted to determine the validity of the county unit system as a method of nominating candidates for statewide offices and for United States Senators in Democratic primary elections. The Gray case is strictly a “voting” case; it has nothing to do with reapportionment, redistricting, or the composition of state or federal legislatures. The Court held that the system impaired the right to vote of certain citizens and, therefore, denied those citizens the equal protection of the law guaranteed by the Fourteenth Amendment. In the Gray opinion the Court stated (372 U. S. at 380-81):

“The only weighing of votes sanctioned by the Constitution concerns matters of representation, such as the allocation of Senators irrespective of population and the use of the electoral college in the choice of a President. * * * But once the class of voters is chosen and their qualifications specified, we see no constitutional way by which equality of voting power may be evaded. * * *. The conception of political equality from the Declaration of Independence, to Lincoln’s Gettysburg Address, to the Fifteenth, Seventeenth, and Nineteenth Amendments can mean only one thing— one person, one vote.” (Italics supplied.)

The next case in point was Wesberry v. Sanders, 376 U. S. 1. This case involved the apportionment of congressional districts in Georgia. The appellants claimed debasement and dilution of their rights to vote because of the state’s existing apportionment system and because of the failure of the state legislature to realign the state’s congressional districts more nearly to equalize the population of each district. The Court held that an apportionment of congressional seats which “contracts the value of some votes and expands that of others” was unconstitutional. The Court, in applying the principles of the earlier Gray case, concluded that “as nearly as is practicable one man’s vote in a congressional election is to be worth as much as another’s.” (376 U. S. at 8).

With the Baker, Gray, and Wesberry cases as precedents, the Court, in Reynolds v. Sims, 377 U. S. 533, considered the question whether the existing apportionment system of the Alabama State Legislature was valid despite the fact that it was not apportioned on a population basis. The Court there held that there was a federal constitutional requirement that state legislatures be apportioned on a population basis.

The plaintiffs’ position in this case is based upon the impairment of their rights to vote which are personal and individual rights. We believe that the following language from the Reynolds case (377 U. S. at 555) has a significant bearing on the legal questions raised in the present case: “The right to vote freely for the candidate of one’s choice is of the essence of a democratic society, and any restrictions on that right strike at the heart of representative government. And the right of suffrage can be denied by a debasement or dilution of the weight of a citizen’s vote just as effectively as by wholly prohibiting the free exercise of the franchise” (Italics supplied.)

In a recent decision, Kramer v. Union Free School District No. 15, 395 U. S. 621, announced June 16, 1969, the Court held a provision of the New York Education Law to be unconstitutional because it excluded from the electorate in school district elections certain voters who were otherwise eligible to vote in state and federal elections. The Court quoted with approval the following language from Harper v. Virginia Board of Elections, 383 U. S. 663, 665: “once the franchise is granted to the electorate, lines may not be drawn which are inconsistent with the Equal Protection Clause of the Fourteenth Amendment.”

It is true that the “one person, one vote” principle has been applied by the Supreme Court of the United States primarily in reapportionment cases which involved the rights of voters to vote in elections for nomination or election of public officials. However, the “one person, one vote” principle has been stated in general terms and without qualification under the Equal Protection Clause. The application of that general principle has not, to our knowledge, been denied in any other area of voting in public elections.

Cipriano v. City of Houma, 395 U. S. 701, announced June 16, 1969, dealt with a Louisiana statute, enacted pursuant to a provision of the constitution of that state. The statute authorized elections to be held by municipalities for the purpose of permitting the voters to vote on the question of the issuance of municipal bonds. The statute provided that bonds could be issued by a municipality only if approved by a majority in number and amount of “the property taxpayers qualified to vote”. It was held in that case, in accordance with Kramer v. Union Free School District No. 15, supra, announced the same day, that the restriction of the right to vote to “the property taxpayers qualified to vote” violated the Equal Protection Clause of the Fourteenth Amendment and that, in this respect, the statute was unconstitutional and invalid. We deem this decision in point because it dealt with a local election and the rights of voters in an election dealing with the issuance of municipal bonds as distinguished from an election to nominate or elect public officials.

State ex rel. Witt v. State Canvassing Board, 78 N. M. 682, 437 P.2d 143, a 1968 case, involved the validity of a provision of the state constitution which required that any amendment of the constitution proposed by the legislature be ratified “by a vote of the people of this state in an election at which at least three-fourths of the electors voting in the whole state, and at least two-thirds of those voting in each county in the state, shall vote for such amendment.” The proposed amendment which was submitted to the voters at the election in question- received a percentage of 81.1851 favorable votes on a statewide basis. In one county, however, fewer than a majority of the voters favored the proposal and, in. twelve counties, fewer than two-thirds of the voters approved it. As a consequence, a minority of the voters of the state who resided in the thirteen counties in which the proposed amendment did not receive two-thirds approval prevailed over the expressed will of more than eighty-one percent of the voters on a statewide basis. That case is analogous to the present case in that it did not relate to the right to vote for representatives in government but rather to the right of the voter at an election involving an issue directly related to government. The Supreme Court of New Mexico, relying upon the “one person, one vote” principle, held that this legal principle, established pursuant to the Equal Protection Clause, could not in reason and logic be restricted to the mere right to vote for representatives in government, and declared to be invalid the constitutional requirement of a two-thirds favorable vote in each county of the state. Having done so, the court did not consider the validity of the requirement of a favorable vote by at least three-fourths of the persons voting on a statewide basis. That issue was moot for the reason that the proposal received more than eighty-one percent of favorable votes on a statewide basis. In that case the court stated (437 P.2d at 149):

“We see no escape from the conclusion that a requirement of two-thirds favorable vote in every county, when there is a wide disparity in population among counties, must result in greatly disproportionate values to votes in the different counties. Where, as here, a vote in Harding County outweighs a hundred votes in Bernalillo County, the ‘one person, one vote’ concept announced in Gray v. Sanders, supra, certainly is not met.” (Italics supplied.)

It is asserted by counsel for the defendants that the Constitution of the United States contains many provisions which are repugnant to the idea of majority rule, including a provision that ratification of treaties requires a concurrence of two-thirds of the senators present and voting, requirements pertaining to amendment of the Constitution, and provisions relating to overriding a veto of a bill by the president. We consider this contention frivolous and wholly beside the point. First, it could not reasonably be contended that a provision contained in the Constitution is violative thereof. See Gray v. Sanders, 372 U. S. 368, 378. Second, we have concerned ourselves in this opinion only with the Equal Protection Clause which provides that no state shall “deny to any person” the equal protection of the laws. This constitutional provision imposes an inhibition upon each state for the protection of “any person” as an individual. It is an individual, personal right which is thus vouchsafed to “any person”.

It is contended in behalf of the defendants that the Equal Protection Clause and the “one person, one vote” principle are not in point because this case merely involves the right of a state to require a sixty percent affirmative vote in elections which submit to the voters the issue of issuance of bonds or the issue of laying an excess levy for public school purposes. This, we believe, amounts to “arguing in circles” or an argument by circumlocution. It is a contention which begs the question. Its basis seems to be that this is an area in which the Equal Protection Clause cannot be binding upon the states. It is our view that we must first determine whether the sixty percent vote requirements violate the Equal Protection Clause and that, upon that basis, we must determine whether the state has the power to require the sixty percent affirmative vote.

We are of the opinion that the “one person, one vote” principle is now firmly established in broad general terms without qualification or exception. Certainly the right of the voter to equal protection, the right to protection against the dilution or debasement of the weight or force of an individual’s vote, is fully as sound, sacred and important when he is voting on issues involving taxation, public revenue and the promotion of an adequate public school system, as when he is voting for the nomination or election of a constable, a state senator, a governor or any other public official to represent the voter in government.

We are unwilling to concede that a determination of issues such as those involved in this case cannot be safely entrusted to a majority of the voters. There was no legal principle of which we are aware which required that the Constitution of West Virginia extend the right of the voter to express his will at the polls in the areas involved in the Roane County election in question in this case. The fact remains that our state constitution has extended the right of the voter into these areas; and when the voter was constitutionally granted the right to vote on these important issues, he thereby became guaranteed the equal protection of the law under the Fourteenth Amendment and the constitutional right to have his vote accorded the same weight, effect and force as that of any other person’s vote, and thereby he became protected by the constitutional right to have the weight, force and effect of his vote hot debased or diluted when considered in relation to the vote of any other person.

If the right of a voter can be legally diluted or debased by the sixty percent requirement, it would seem to follow necessarily that it could be further diluted or debased legally by a seventy-five or a ninety percent requirement. In other words, if the weight and force of a person’s vote can be debased and diluted in accordance with the contention of the defendants in this case, we see no escape from the conclusion that the weight and force of such a vote may legally be debased and diluted virtually to the point of total extinction.

For reasons stated in this opinion, we are of the opinion, and accordingly the Court holds, that the three-fifths vote requirement of Article X, Section 8 of the Constitution of West Virginia and Sections 4 and 14 of Article 1, Chapter 13, Code, 1931, as amended, and also the sixty percent requirement of Article X, Section 1 of the Constitution of West Virginia and Section 16 of Article 8, Chapter 11, Code, 1931, as amended, are in conflict with and violative of the Equal Protection Clause of the Fourteenth Amendment of the Constitution of the United States and that, therefore, such provisions are void and unenforceable. In these circumstances, it is unnecessary for us to decide whether the sixty percent vote requirements in question are violative of the Guaranty Clause of Article IV, Section 4, of the Constitution of the United States.

The motion of the plaintiffs to reverse the judgment of the Circuit Court of Roane County is granted, the judgment is therefore reversed and the case is remanded to that court for such further proceedings as may be proper and consistent with the decision of the Court embodied in this opinion.

Motion to reverse granted.