West Virginia Education Ass'n v. Legislature of West Virginia

McGRAW, Justice: In this mandamus proceeding, the West Virginia Education Association (WVEA) challenges as unconstitutional the cuts in state expenditures for education made in the fiscal year 1987-88 state budget. The WVEA seeks writs of mandamus requiring the Governor to call a special session of the Legislature and requiring the Legislature to supplement the budgetary appropriation for education, or such other relief as this Court deems appropriate. Having considered the arguments of the parties, we conclude that the fiscal year 1987-88 state budget is unconstitutional. As an act of comity, we presume the Governor and Legislature will do their duties. Therefore, the writ prayed for is deferred. The petitioners are correct in their representation that the provisions of Article XII, Section 1 et seq. and Article X, [382] Section 5 of the West Virginia Constitution, give a constitutionally preferred status to public education in this State. Syl.Pt. 1, State ex rel. Board of Education v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131 (1981). We have also held that the mandate of article twelve, section one that the Legislature provide for a thorough and efficient public school system requires that body to develop high standards for educational quality statewide. Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859 (1979). Further, we have disapproved of reducing state expenditures for public education as part of a pro rata reduction in the overall budget due to an anticipated revenue shortfall. Board v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131. Indeed, in this commonwealth, education is an essential constitutional right. The financing of education is, among mandated public services, the first constitutional priority. Cooper v. Gwinn, 171 W.Va. 245, 298 S.E.2d 781 (1981); see Board v. Rockefeller, 167 W.Va. 72, 281 S.E.2d 131. This case vividly illustrates the concept of “rule of law”. Rule of law implies subordination of the three branches of government (legislative, executive, and judicial) to principles of law enunciated in the constitution. The thorough and efficient system of free schools required by our constitutional law is to be provided for through enactment of general law by the Legislature. W.Va. Const, art. XII, § 1. Article nine A of chapter eighteen of the West Virginia Code sets forth a comprehensive plan for financial support of public schools. State ex rel. Raese v. Battle, 149 W.Va. 761, 143 S.E.2d 328 (1965), overruled on other grounds, Pauley v. Kelly, 162 W.Va. 672, 255 S.E.2d 859. As such, Code § 18-9A-1 to -22 is an integral part of the fundamental constitutional command that the Legislature provide for a thorough and efficient system of public education.1 The Legislature, in enacting and specifying the basic foundation program contained in article nine A has established public policy which is presumed to vindicate the constitution. That body has made a determination that presumes this basic foundation program is a necessary part of fulfilling the constitutional obligation. Consistent with the assertion of the petitioners, the respondent Governor admits “that the appropriations made by the Legislature for public education are incorrect.” The Legislative respondents verify that the current budget, as approved by two-thirds of the members of each house of the Legislature, fails to appropriate sufficient dollars to fund the basic foundation program. Thus, the petitioners are correct in their premise that the fiscal year 1987-88 budget does not comport with the legislatively established public policy, which is presumed to vindicate the constitutional mandate for a thorough and efficient public school system.2 The Governor, by answer, claims and avers, “The Legislature by appropriating $1,490,215,893.00, an amount which ex [383] ceeds the ... revenue estimate3 by $25,-815,893.00, has created an unconstitutional budget.” He further avers, “The Budget Bill enacted by the Legislature creates a deficit and is seriously out-of-balance.” The respondent Speaker and President do not controvert the Governor’s verification. It is clear that the Governor and the Legislature have the responsibility for preparing and enacting a proper budget bill in accordance with Article VI, § 51 of the West Virginia Constitution. See generally, State ex rel. Moore v. Blankenship, 158 W.Va. 939, 217 S.E.2d 232 (1975); State ex rel. Brotherton v. Blankenship, 158 W.Va. 390, 214 S.E.2d 467 (1975); State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973). Provisions contained in article six, section fifty-one of the Constitution of West Virginia require that the estimate of revenues and the budgeted appropriations be in balance so as not to create a deficit. Thus, we hold the budget for fiscal 1987-88 to be unconstitutional under Article VI, § 51 of the West Virginia Constitution. While we have determined that the budget is unconstitutional,4 as an act of comity, we decline today to issue extraordinary writs prayed for by WVEA. Comity is “mutual consideration between equals.” Webster’s Third New International Dictionary 455 (1970). Comity, as a principle of law, is a courtesy extended in deference from equals who are mindful of their duty to equals who are mindful of their duty. See W. Anderson, A Dictionary of Law 197 (1890). Because the concept of comity is based in mutual deference accorded to equals, it is applicable among co-equal departments (branches) of a single sovereign government. We do not today order the Governor to do any act. We do not today order the Legislature to do any act. The law presumes the Governor to know his duty when faced with an unconstitutional budget.5 The law presumes the Legislature to know its duty6 too.7 BROTHERTON and NEELY, JJ., dissent and reserve the right to file dissenting opinions. Footnotes [1] The legislative respondents are correct in citing State ex rel. Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122 (1953) for the proposition that the "thorough and efficient" clause contained in article twelve, section one of the West Virginia Constitution is not a self-executing appropriations provision. The respondents, however, are wrong when they argue that article nine A of Chapter eighteen of the Code does not mandate a specific level of support for free schools in our state. Indeed, “[t]he intent of this article is to provide a plan of financial support to the public schools ... and to fix statutorily both state and county responsibility for financing of the same.” W.Va.Code § 18-9A-1 (1984 Replacement Vol.). Although article twelve, section one is not a self-executing appropriations provision, the enabling legislation enacted pursuant to the constitutional mandate does specify the method of providing funding support for the public schools. [2] This is not to say that the Legislature must forever fully fund the public school support plan as it now stands on the statute books. That body is free to amend the plan, or to replace it with another provision, so long as any new statute meets constitutional muster as set out in article twelve, section one, article ten, section five, and our cases interpreting these provisions. What the Legislature is not free to do, however, is cut education funding pro rata along with constitutionally nonpreferred expenditures in violation of its own previously determined constitutionally based public policy. [3] We do not here consider the procedure which yielded "revised” revenue estimates. [4] Because of the nature of this case and our adversarial system of justice, we have confined ourselves to examining only that portion of the budget impacting the public school support plan. Nevertheless, in spite of the savings clause contained in article six, section fifty-one of our constitution, we must declare the entire budget unconstitutional. "If the elimination of the unconstitutional parts of an act of the Legislature would result in an act other and different from that which the Legislature intended to enact, a saving clause will not operate to save the remaining parts of the act.” Syl.Pt. 20, Trent v. Sims, 138 W.Va. 244, 77 S.E.2d 122. [5] The Governor is required to make an oath by art. IV, § 5 of the Constitution of West Virginia: § 5. [Tjhat he will support the Constitution of the United States and the Constitution of this State, and that he will faithfully discharge the duties of his said office to the best of his skill and judgment.... [6] Article VI, § 16 of the Constitution of West Virginia provides, in pertinent part: § 16. Members of the legislature, before they enter upon their duties, shall take and subscribe the following oath or affirmation: "I do solemnly swear (or affirm) that I will support the Constitution of the United States, and the Constitution of the State of West Virginia, and faithfully discharge the duties of Senator (or Delegate) according to the best of my ability;” and they shall also take this further oath, to wit: "I will not accept or receive, directly or indirectly, any money or other valuable thing, from any corporation, company, or person, for any vote or influence I may give or withhold, as Senator (or Delegate) on any bill, resolution or appropriation, or for any act I may do or perform as Senator (or Delegate).” [7] In order that the respondents may give a thorough consideration to the efficacy of a petition for rehearing, it is ordered that the operation of the final judgment herein be suspended for a period of sixty days from the date of judgment, and that with a petition for rehearing filed in the office of the Clerk of this Court within said sixty days, the operation of the final judgment is hereby suspended until the further Order of the Court. See R.App.P.W.Va.Sup.Ct.App. 24.