Ingles v. Straus

Cardwell, J., delivered the opinion of the court. This case grew out of an Act of the General Assembly approved January 22, 1894, (Acts 1893-’94, page 41), entitled “An act to authorize and provide for a special election in the county of Pulaski as to the removal of the courthouse of said county. ’ ’ The act provided that “ It shall be the duty of the Judge of the Circuit Court of Pulaski county, upon the petition of not less than one hundred qualified voters, to order a special election in the said county to be held at the several voting precincts thereof, on a day to be designated by him, within thirty days after the presentation of said petition to him for the purpose of taking the sense of the qualified voters of said county whether the county-seat of said county be removed from the town of Newbern at all; and, if so removed, whether to the town of Pulaski, in said county, or to the town of Dublin, in said county.” And then, after providing for tbe notice to be given, the manner of conducting the election, and how the ballots should be printed and counted, the act further provides that, if three211 fifths or more of the votes cast, be cast for the removal of the courthouse to the town of Pulaski, then the courthouse and county-seat shall be removed to the town of Pulaski in said county, and the county-seat shall be thenceforward at the said town of Pulaski; or, if three-fifths or more of the votes cast be for the removal of the courthouse to the town of Dublin, in said county, then the courthouse shall be removed from the said town of Yewbern to the town of Dublin, and the county-seat of said county shall be thenceforwaid at the said town of Dublin; but if more than two-fifths of the votes cast, be cast against the removal of the courthouse, then the county-seat shall remain at the town of Yewbern; and, in the event that three-fifths or more of the votes cast, shall not be cast either for the removal of the courthouse to Pulaski, or to Dublin, but if the combined vote in favor of Pulaski and Dublin, shall be three-fifths or more of the votes cast in said election, then and in that event, the circuit judge of the county of Pulaski should immediately after the said election, and within twenty days thereafter, enter an order in the clerk’s office of said county ordering another election, to be held within forty days after the entering of the said order; said election to be held and canvassed, and result ascertained in like manner and after like notice, as the first election. The act further prescribed how the ballot should be printed, &c. On the 14th day of February, 1894, a petition was presented to the judge of the Circuit .Court of Pulaski, signed by one hundred and six of the qualified voters of the county, praying that the special election be ordered in accordance with the Act of the Legislature; and the judge made the order directing a special election to be held at the several voting precincts in the county on the 6th day of .Aprils 1894. This election was held in conformity in all Respects to the Act, and resulted in the polling of 2670 votes, of which 1439 were counted as votes in favor of removal to Pulaski, 308 as — 212 — in favor of removal to Dublin, and 923 as against removal. The result was reported by the commissioners of election to the judge of the Circuit Court of Pulaski on April 9, 1894; and it appearing by their report that two-fifths of the votes cast were not cast against the removal of the courthouse, and that three-fifths or more of the votes cast were not cast either for removal to Pulaski or to Dublin, but that the combined vote in favor of Pulaski and Dublin was three-fifths or more of the votes cast in the election, the judge, on the 18th day of April, 1894, entered an order directing another election to be held on the 22nd day of May, 1894, to determine whether the courthouse should be removed to Pulaski or to •Dublin. ' This election was accordingly held, and the result, ascertained by the commissioners duly appointed for the purpose, was reported to the judge of the Circuit Court on May 24, 1894. At this election 2168 votes were cast, of which 1536 were counted as in favor of the town of Pulaski, 615 for the town of Dublin, and 17 scattering votes counted as against removal; whereupon the judge of the Circuit Court entered an order declaring that the county-seat of the county of Pulaski should thereafter be the town of Pulaski, and appointed commissioners to select a site in the town of Pulaski for a courthouse, and directed all things else to be done necessary to carry out the provisions of the Act, and in accordance with the wishes and determination of the voters of Pulaski county, as ascertained by the election held. Immediately upon the entry of this order, the plaintiffs below, and the appellants in this court, filed their bill of complaint in the Circuit Court of Pulaski county, charging fraud in the conduct of the election; that illegal votes had been cast and counted against the town pf hTewbern and in favor of the removal of the courthouse; that voters had been intimidated; that the Act of January 22, 1894, was unconstitutional, &c.; and praying that the petitioners for the election of April 6, — 213 — 1894, and the commissioners appointed by the court to choose a location for the courthouse in the t¡own of Pulaski, be enjoined and restrained from doing any further acts in the premises, and for general relief. This bill was presented to the judge of the Hustings Court of Kadford, who refused the injunction prayed for; whereupon it was presented to Hon. Bobert A. Bichardson, then one of the judges of this court, on May 30, 1894, and the injunction granted. Answer was promptly filed, denying all material allegations of the bill, and after due notice a motion was made to dissolve the injunction on the 19th day of July, 1894; but, on motion of plaintiffs for a continuance, the hearing of the motion to dissolve was postponed to August 18, 1894, to enable them to complete their depositions. On the 18th of August they again moved for a continuance, which was refused, and the injunction was dissolved. From this decree an appeal with supersedeas was allowed by one of the judges of this court. Quite a number of questions have been raised in the record, but those not disposed of by the order entered in the case at the November term, 1894, of this court, which, by consent, removed the cause from Wytheville to this court at Bichmond, and continued it to the January term, 1894, may be disposed of by the determination of the two main questions in the case, namely: First. Is the Act of January 22, 1894, in conflict with article 5, section 15 of .the Constitution, and therefore null and void ? Second. Did the judge of the Circuit Court of Pulaski county err in refusing the motion made by the plaintiffs below, August 18, 1894, for a continuance, and in dissolving the injunction at that hearing ? We come first to consider the constitutionality of the Act in question, the title of which has been quoted; and as the contention of appellants is that the Act itself is broader than — 214 — its title, containing provisions not covered by the title, and subjects not embraced in the title, we must first see what is embraced in the Act. The first three sections of the Act contain the usual provisions for holding a special election, that special election to determine—first, whether the courthouse shall be removed; second, whether it shall be removed to Dublin or Pulaski. The fourth section simply pro rides that if, at the first election, more than two-fifths vote against removal, the county-seat shall remain at bTewbern; but, if three-fifths be cast for removal either to Dublin or Pulaski, the place receiving three-fifths shall be the county-seat; but if two-fifths of the vote be not against removal, and neither Dublin nor Pulaski receive three-fifths, then a second election shall be held between Dublin and Pulaski, and the place receiving the highest number of votes shall henceforward be the county-seat. After setting out that certain citizens of the town of Pulaski had proposed to donate to the county, in the event of the removal of the courthouse to the town of Pulaski, so much land as may be necessary for a site for the courthouse and jail, and to erect and construct, free of cost to the county, a safe and suitable jail; and to erect and construct, free of cost, except as to the insurance money (the courthouse at ÜSTewbern having been burned), and proceeds of the sale of the courthouse lot in the town of PTewbern, a suitable courthouse, the fifth section of the act goes on to provide that before ordering the election provided for in the act, the judge of the Circuit Court shall take a good and sufficient bond, with surety, in a penalty prescribed, conditioned to cover all the undertakings of the citizens who propose to donate the location and erect the building specified, and then provides for the appointment of three commissioners to select a site in the town of Pulaski for the courthouse and jail if the vote determined that the county seat was to be moved there (similar provisions are made — 215 — in this section with regard to Dublin); and further, that, in the event of the removal of the courthouse from the town of Uewbern to the town of Pulaski, the old jail at Uewbern and the lot on which it is located, and on which the old courthouse stood, shall be sold as provided by law, and the proceeds therefrom, and all the. insurance money collected upon the policy carried by the board of supervisors of the county upon the old courthouse, shall be applied toward the budding of a new courthouse for the county at such place as may be determined on by the election thereinbefore provided; and that it shall be the duty of the supervisors of the county to provide a suitable place in the town to which the courthouse shall have been removed by the vote of the people for a courtroom and clerk’s office for the county, at which all of the courts of the county shall be held until a new courthouse shall have been built and completed. The first clause of section 15, article 5, of the Constitution of Yirginia provides that “no law shall embrace more than one object which shall be expressed in its title.” A similar provision to this is found in the constitutions of most of the States of the Union, and has been construed in a large number of cases, and by many courts of last resort, both State and Federal, and the authorities that will be cited here will be of cases arising in those States having a similar constitutional provision—the words “object” and “subject” being taken to have one and the same signification. What is the object embraced in the act of January 22, 1894, entitled, as we have seen, “an act to authorize and provide for a special election in the county of Pulaski as to the removal of the courthouse of said county”? Plainly, the removal of the courthouse of Pulaski county. Ii is admitted in the argument of this case that the legislature might have passed an act simply removing the county-seat and courthouse of' Pulaski county to Pulaski city, or to — 216 — any other point in the county. Indeed, this could not be denied; but, instead of doing this, the legislature saw fit to first ascertain the wishes of the voters of the county as to the removal of the courthouse at all, and if to be removed, to what point they desired it to be removed, and at the same time made all necessary provisions to carry out the wishes of the voters of the county when ascertained. The general rule governing in ascertaining the constitutionality of an act of this character may be stated thus: If the subjects embraced by the statute, but not specified in the title, have congruity or natural connection with the subject stated in the title, or are cognate or germane thereto, the requirement of the constitution as to the title is satisfied. 23 Amer. & Eng. Enc. of Law, p. 238-9; Johnson v. Harrison, 47 Minn. 575, 578. Judge Mitchell, in delivering the opinion of the court in the case last cited, says: “Any const]uction of this piovision of the constitution that would inteifeie with the veiy commendable policy of incorporating the entire body of statutory law upon one general subject in a single act, instead of dividing it into a number of separate acts, would not only be contrary to its spirit, but also seriously embarrassing to honest legislation. All that is required is that the act should not include legislation so incongruous that it could not, by any fair intendment, be considered germane to one general subject. The subject may be as comprehensive as the legislature chooses to make it, provided it constitutes, in the constitutional sense, a single subject, and not several. The connection or relationship of several matters, such as will render them germane to one subject and to each other, can be of various kinds, as, for example, of means to ends, of different subdivisions of the same subject, or that all are designed for the same purpose, or that both are designated by the same term. Meither is it necessary that the connection or relationship should be logical; it is enough that the matters áre connected with and — 217 — related to a single subject in popular signification. The generality of the title of an act is no objection, provided only it is sufficient to give notice of the general subject of the proposed legislation and of the interests likely to be affected.” See also Powell v. Supervisors of Brunswick Co., 88 Va. 707; Lescallett v. Commonwealth, 89 Va. 878; State v. Union, 4 Broom, (N. J.) 350; People v. Briggs, 50 N. Y. 553; Johnson v. Harrison, 47 Minn. 575; Falconer v. Robinson, 46 Ala. 340, 347; Carter & Co. v. Sinton, 120 U. S. 523; Montclair v. Ramsdell, 107 U. S. 155; Ackley School Dist. v. Hall, 113 U. S. 142; Unity v. Burrage, 103 U. S. 457-59, and Commonwealth v. Brown, post. The fact that the act authorizes many things of a diverse nature to be done will not affect the sufficiency of the title, provided the doing of such things may be fairly regarded as in furtherance of the general subject of the enactment. 23 Amer. & Eng. Enc. of law, 239; McGurn v. Board of Education, 133 Ill. 122; Blake v. People, 109 Ill. 504; Larned v. Tiernan, 110 Ill. 173; Mix v. Ill. Cent. R. Co., 116 Ill. 502; People v. Hazlewood, 116 Ill. 319. An act entitled “An act to increase boundaries” of the county may embrace provisions for extending the borders of the county, locating the seat of justice, and accepting donations for public buildings. Blood v. Marcelliott, 53 Pa. St. 391; Ledger v. Rice, 8 Phila. (Pa.) 167. “An act to authorize the formation of new counties” comprehends provisions relating to boundaries of old counties from which the new are to be formed, also provisions for the organization and sitting of courts in the new counties. Jasper County v. Spitler, 13 Ind. 235; Haggard v. Hawkins, 14 Ind. 299; Brandons. State, 16 Ind. 197. Provisions regulating the manner of conducting an election to determine a change of the location of the county seat may be embraced under the title “An act to change the location of — 218 — the county seat of-specifying the county. The submission of the change of location to the voters, the selection of the new site, and the removal of the county buildings, are all matters properly connected with the “change of the location,” which is the subject expressed in the title of the act. Simpson v. Bailey, 3 Oregon, 515; In re Division of Howard County, 15 Kan. 194; Woodruff v. Baldwin, 23 Kan. 494. The principal question in all cases like this is whether the act is in truth broader than the title; and, if so, then whether the other objects in the act are so intimately connected with the one indicated by the title that the portion of the act relating to them cannot be rejected, and leave a complete and sensible enactment which is capable of being executed. (Cooley on Con. Lim. [5th Ed.] p. 178-9); and “none of the provisions of a statute should be regarded as unconstitutional where they all relate directly, or indirectly, to the same subject expressed in the title.” Cooley Con. Lim., supra, note 1; Phillips v. Bridge Co., 2 Met. (Ky.) 219; Smith v. Commonwealth, 8 Bush 108. In Phillips v. Bridge Co., supra, the act of the Kentucky legislature under review was entitled: “An act to amend the charter of The Cov. & Cin. Bridge Co.,” and the first section of the act increased the capital stock of the company, and the second section conferred power on the bridge Co. to sell, and on the city of Covington to subscribe to, the capital stock of the Bridge Co., and in payment thereof to sell the bonds of the city and levy a tax for the payment of the interest on the bonds; the contention being in that case that the act was in conflict with the clause in the Constitution of Kentucky which provides that “no law shall relate to more than one subject that shall be expressed in the title;” but the court held otherwise. Chief Justice Simpson, delivering the opinion, says: “The power to sell stock to the city of Covington necessarily requires that a power should be conferred on — 219 — the latter to subscribe and pay for it. * * * The subject is the same, although it relates to a transaction to which two corporations are parties, one of whom only is named in the title of the act. If by the act a power had been conferred on the city of Covington to subscribe for the stock of any other corporation but the one named in the title of the act, then the provision would fall within the constitutional prohibition and be clearly null and void. But as it is restricted in operation to matters pertaining to the Bridge Company, and the provisions of the act, so far as they relate to the city of Covington, are apposite to the purpose which was intended to be effected by its passage, and are sufficiently indicated in its title, it is not liable to this constitutional objection. It was certainly not necessary for the legislature to pass two separate acts to effect the object it had in view; one to enable the company to sell the stock to the city, and another to enable the city to subscribe and pay for it. The constitutional provision relied upon must receive a rational construction, and not one that would lead to such an unnecessary and absurd result. ’ ’ In Ex parte Upshaw, 45 Ala. 234, in delivering the opinion of the court, Justice Saffold says: “It would be a violation of the letter and spirit of this constitutional safeguard if such a construction should be put upon it as would forbid the incorporation into a law of everything needful to the proper operation of the one subject to which it is limited. ” Ye might add many other authorities to those already cited, but we deem it unnecessary. Assuming, however, that the act itself is broader than the title, and that such portions of the act as are not embraced in the title are to be stricken out, then, if so much of the act remains as authorized the election to be held to ascertain the sense of the voters as to the removal of the courthouse, which' to our mind is clear, the result is the same, as the general law of the State would have imposed upon the board of supervisors — 220 — oí Pulaski county the duty of providing a site at Pulaski city for the courthouse, jail, and clerk’s office, and of erecting all needed buildings thereon, when the result of the election determined that the county seat was to be henceforward at Pulaski city, and would have given them the same control over the proceeds arising from the sale of the courthouse lot at Hewbern, the remaining buildings thereon, and the insurance money, as the act in question gives them (section 925 Code of Ya.); and, had they failed to perform this duty, they would have been compellable to do so by mandamus. It is argued with earnestness by appellants that the title of the act we are now considering provides for but one election, while the body of the act, or the act itself, provides for two elections, and for this reason, if no other, the act should be held to be unconstitutional and void. In other words, the contention is that this second election, as it is called, could only have been provided for by a separate act. The weight of authorities, as we have seen, is decidedly against this contention. The second election was but a means to an end, and the authorities go so far as to characterize the contention under these conditions, that there should have been a separate act, as wholly untenable. Elections are held to ascertain the will of the people; in the one case as to who shall fill an office or post of trust; in the other, whether a thing proposed, affecting their interest, shall be done or not done. In the case here there might not have been any occasion for a second election, or a second vote, as it might be more properly called. The end desired was the removal of the county seat, if the voters of Pulaski county so determined, and to the place they wished it to be located. Had either Pulaski city,*or Dublin, received three-fifths or more of the votes cast April 6, IS 94, there would have been no second vote, or election; but, by this vote of April 6th, it was shown clearly that the will of the people was to remove the county-seat from Hewbern, and it could not be — 221 — moved both to Pulaski city, and to Dublin, hence the will of the people was again ascertained as to which of the two places the county-seat should be moved. The vote at the second election was overwhelmingly in favor of Pulaski city, finally determining, in the modes prescribed in the act, that the will of the people of Pulaski county was that the county-seat be removed from Hewbern and to Pulaski city. "We can therefore readily see how useless it would have been for the legislature to have provided by another and separate act for the second election. In fact, we do not see that the act of January 22, 1894, provides for but one election; namely, an election to ascertain the will of the people of Pulaski county as to the location of their county-seat. We are also unable to see the force of the contention that the act upon its face provides for a ‘ ‘combine’ ’ between Pulaski city and Dublin against Hewbern. On the contrary, the act appears to fairly and justly deal with hTewbern by providing that if two-fifths of the votes cast be against the removal of the county seat, the county seat shah remain at TTewbern; and with the notice of the election duly posted and accompanied by the order of the judge of the Circuit Court, embodying the provisions of the act, as to how the election was to be held, the character of the ballots to be used, and how they were to be counted-—-in fact, everything needful to inform the voters of the effect and meaning to be given to their respective ballots—we think it would be a reflection upon the intelligence of the voters of Pulaski county to hold that they did not understand that a vote cast at the election of April 6th for removal either to Pulaski city, or to Dublin, would be counted as a vote for the removal of the county-seat from Vewbern. PTor are we able to see the force of the contention that “the act confers on Judge S. W. Williams another office and public trust during his continuance in office as circuit judge, contrary to section 24, of article 6 of the constitution, and that the act invades — 222 — the province of the judiciary.” The act in our opinion is a comprehensive provision, not broader than its title, for the removal of the county seat of the county of Pulaski if the people so desired, and that nothing is contained therein “so incongruous that it could not by any fair intendment, be considered germane to the one general object,” but that everything contained in the act £ ‘may be fairly regarded as in furtherance of the general object of the enactment. ” All of its provisions should be regarded as relating directly to the same subject, having a natural connection therewith and not foreign, in any sense, to the subject expressed in the title. We are therefore of opinion that the act of January 22, 1894, is constitutional and valid; that it does not confer on judge S. W. Williams another office and public trust, or invade the province of the judiciary in any respect. We come now to consider the only remaining question, whether the judge of the Circuit Court erred in refusing the motion of the plaintiffs for a continuance, and in dissolving the injunction, at the hearing August 18, 1894. Section 3444 of the Code of Va. provides that the judge of the Circuit Court in which a case is pending, wherein an injunction is awarded, may in vacation dissolve such injunction, after reasonable notice. So that, where the extraordinary remedy by injunction is resorted to, the party or parties resorting to it are fully apprised by the statute that a motion to dissolve may be made at any time after reasonable notice, and the proof, therefore, to sustain the equities of the bill should be taken with all reasonable dispatch. There were sixty-seven working .days between the grant • and dissolution of the injunction. Plaintiffs took depositions on only ten days, and on five of the days examined but one witness a day, and between the 19th of July and the 18th of August, but one day of the additional time given them to take their proof was utilized, and but one deposition was taken; — 223 — and the motion for a continuance on August 18, was based solely on the affidavit of one T. W. Covey, which only suggests a desire to take depositions of about “two hundred more’ ’ witnesses, but does not state that any of them were known or believed to be material. The motion to dissolve on August 18, was heard on the bill, the answer of the defendants denying specifically and generally, without the least evasion, all of the equities of the bill, and every material allegation therein contained, and on the depositions of twenty-eight witnesses examined for the plaintiffs. It is true that upon a motion to dissolve an injunction the defendant is considered the actor, and upon him rests the burden of disproving the equities of the bill. Such full and positive proof, however, is not exacted as would be necessary upon a final hearing of the cause, since the effect of requiring such strictness of proof might be to prevent a dissolution until the final hearing. And for the purposes of such motion, defendant’s answer is to be taken as true, so far as responsive to the allegations of the bill, and so far. as it fully and fairly meets complainants equities without evasion, and without passing over material allegations. High, on Inj., sec. 1470; Miller v. Washburn, 3 Ired. Eq. 161; Worths ex'ors v. Perrow, 4 Rand. 1. But it may be suggested that this rule applies only to an answer under oath. “If plaintiff waives the answer of defendant under oath, while such waiver deprives the answer of its effect as evidence, and dispenses with the necessity which would otherwise exist of disproving it by testimony equivalent to that of two witnesses, yet such answer, if it negatives the equities of the bill, must be treated, upon a motion to dissolve, as a denial of plaintiff’s case.” High on Inj., § 1527; Lockhart v. City of Troy, 48 Ala. 579. The dissolution of an injunction is largely a matter of judicial discretion, to be determined by the nature of the particu — 224 — lar case under consideration, and so as to a motion to continue a motion to dissolve; and where this discretion has apparently been soundly exercised by the judge below, and especially where the contrary does not appear in the record, this court will not disturb the action of the lower court. Clinch River Mineral Co. v. Harrison, decided at the January term of this court, ante, p. 122. “When a motion is made to dissolve an injunction, the court of chancery never continues it unless from some great necessity, because the court is always open to grant, and of course to reinstate an injunction wherever it shall appear proper to do so. ” 1 Barton’s Chan. Pr. (new) 467. Applying this established rule to the case at bar, we do not think that the judge of the Circuit Court erred in overruling the motion for a continuance August 18, 1894. He doubtless did, and rightly, take into consideration, not only the general features of the case, but the injury and inconvenience resulting from a protracted litigation over the location of the county seat. Nor do we think that the judge of the Circuit Court erred in dissolving the injunction-at the hearing on August 18, 1894. “Where a motion to dissolve is heard upon the bill, answer, and depositions used as affidavits, and the evidence does not show probable cause from which it may reasonably be inferred that plaintiff will be able to make out his case upon final hearing, the injunction will be dissolved. If, however, plaintiff’s right to relief is supported by evidence regularly taken in the cause in his behalf, and on which he intends to rely upon the final hearing, the injunction will not bó dissolved upon bill and answer alone, but, will be ordered to stand over to the hearing.” High on Inj., sec. 1526: Cunningham, v. Tucker, 14 Fla. 257. Following this rule strictly when applied to the case at bar, the judge of the Circuit Court was clearly right in dissolving the injunction, as the depositions read on behalf of the plaintiff at the hearing, did not sho w probable cause — 225 — from which it might have been reasonably inferred that plaintiffs would be able to make out their case upon final hearing, nor did this evidence support plaintiffs’ right to the relief set up in the bill. On the contrary, we think that the weight of this evidence is against the allegations of the bill. At all events, it fails to support them, and plaintiffs’ counsel admit that with twenty-eight witnesses examined, the charge of fraud, which is the gravamen of the bill, was not made out. Therefore, if the motion to dissolve the injunction rested only on the bill and the answer denying all the grounds of equity set up in the bill, the injunction should have been dissolved. Hogan v. Duke, 20 Gratt. 244; Moore v. Steelman, 80 Va. 331; Motley v. Frank, 87 Va. 432. ¥e are therefore of opinion, upon a review of the whole case, that the decree complained of, entered by the judge of the Circuit Court of Pulaski county August 18, 1894, is clearly right and must be affirmed. Buchanan, J., concurs in the results. Aeeiemed.