Entertaining as I do a firm conviction that the decision in this proceeding violates both the letter and the spirit of a vital provision of the Constitution of this State, and strikes a violent blow against its continued integrity and existence, I respectfully dissent from the holding of the majority in denying the writ of mandamus prayed for in the petition. The decision in this case, in my opinion, offers the opportunity for other assaults upon the Constitution, which may be too powerful to be withstood, and presents the possibility, however presently remote, of the ultimate and final destruction of the very form of government which the Constitution creates, and which it was designed and intended to preserve and perpetuate. Though a single breach in any of its barriers against tyranny or oppression may not destroy the Constitution, repeated breaches will eventually bring about its complete and irreparable ruin. If one vital provision of the Constitution may be disregarded, circumvented, or violated, another provision or all its provisions may at any time meet the same fate. The solemn declarations of the people as embodied in the Constitution are of no force or effect if *Page 23 any of them may be flouted, disobeyed, or ignored by anybody at any time or for any reason.
The importance and the possible disastrous effect of the present decision become clear when it is realized that the provision which it ignores is a provision which relates to the amendment of the Constitution, and in consequence necessarily involves its present and future vitality and existence. If, as the majority now holds, the Constitution can be amended in any particular after the publication of the proposed amendment for a period of approximately twenty-seven days less than the three months' period which the people prescribed in express terms, it can be amended after the publication of a proposed amendment for any other shorter period than three months, and by such means the people can be deprived of information respecting the intended change in the fundamental law, which they have created and adopted, and which they solemnly declared may only be changed in the manner which they have chosen and expressly prescribed and provided. If a publication for a period substantially less than three months will suffice, how much less than three months will also suffice; and if the publication for three months is not necessary, as the majority holds, will any publication at all actually be required? Or is the dissemination of information by other supposedly more effective or more modern means, instead of the publication expressly required by the Constitution, sufficient? If the answer to any of these questions is in the affirmative, as the majority answers with respect to a period of approximately twenty-seven days short of the required period of three months, then the will of the people, as expressly declared and stated in the Constitution itself, has been transgressed and disregarded.
In the face of the undisputed facts disclosed by the record and conceded in the argument, it can not be said, with any degree of reason, that publication of the proposed amendment for sixty-three days after its earliest publication on August 30, 1948, and for forty-six days after its latest publication on September 16, 1948, preceding *Page 24 the date of the general election on November 2, 1948, instead of at least three months before that date, as required by the Constitution, is a substantial compliance with that requirement. In truth, these belated publications are not only not a substantial compliance, but are no compliance at all, with the express requirement of the Constitution, which the majority recognizes as mandatory in character. Can it be said, or argued, with any show of reason that the statutory requirement that a notice of motion for judgment in a civil proceeding be served upon a defendant twenty days before the hearing is substantially complied with if service be had nineteen days instead of twenty days before the hearing; or that a jury of eleven, instead of a jury of twelve, as required by the Constitution, for the trial of a person accused of a crime, substantially complies with that requirement? The mere statement of these questions conclusively answers them in the negative.
Not only is the holding of the majority unsound from the standpoint of reason, but it plainly is at variance with the express language of the Constitution itself. It violates the rule that the requirements established for the amendment of an existing Constitution are mandatory and must be strictly followed without the omission of any requisite step, and is contrary to decisions of appellate courts in some other jurisdictions in this country, in which the question here presented has been resolved or considered. Arnett v.Sullivan, 279 Ky. 720, 132 S.W.2d 76; McCreary, Governor v.Speer, 156 Ky. 783, 162 S.W. 99; State ex rel. Woods v.Tucker, 15 Mont. 8, 37 P. 840, 25 L.R.A. 560. See alsoMiller v. Johnson, 92 Ky. 589, 18 S.W. 522, 15 L.R.A. 524;Collier v. Frierson, 24 Ala. 100; Oakland Paving Company v.Hilton, 69 Cal. 479, 11 P. 3; Koehler v. Hill, 60 Iowa 543,14 N.W. 738, 15 N.W. 609; State v. Tufly, 19 Nev. 391, 12 P. 835, 3 Am. St. Rep. 895.
To say that an express requirement that the proposed amendment be published at least three months before the next general election, which the majority concedes is mandatory, is substantially complied with by a publication *Page 25 which is, in fact, only a few days more than two months before such election, is to disregard plain language and to ignore the clear and positive provision of the Constitution. No amount of mathematical dexterity or argumentative plausibility or persuasion can possibly make a period of approximately sixty days the substantial equivalent of at least three months. To my mind the question at issue is just that clear and just that simple. The situation here present is simply this: The publication requirement of the Constitution is clear and free from doubt and the proposed amendment was not published until August 30, 1948, when approximately twenty-seven days of the three months immediately preceding the general election in November had elapsed. In these circumstances, I can not approve or justify the holding of the majority that the delay in the publication for twenty-seven days of the three months' period constitutes a substantial compliance with the express publication requirement of Article XIV, Section 2, of the Constitution. On the contrary, the failure of the executive, through inadvertence, to cause the publication of the proposed amendment at least three months, and until only a few days more than two months, before the holding of the next general election, as expressly required by the provisions of Article XIV, Section 2, of the Constitution is not only not a substantial compliance with the requirement of the Constitution but is no compliance at all with that requirement. In 11 Am.Jur., Constitutional Law, Section 32, the rule which, in my judgment, directly applies to and controls the decision of this case is expressed in this language: "The general rule is that an amendment to a Constitution does not become effective as such unless it has been duly adopted in accordance with the provisions of the existing Constitution. The procedure and requirements established for the amendment of the fundamental law are mandatory and must be strictly followed, in order to effect a valid amendment. None of the requisite steps may beomitted." (Emphasis supplied.)
As the publication requirement of the Constitution has not been complied with in any sense whatsoever, but has *Page 26 been completely ignored and disregarded, the case of Herold v.Townsend, 113 W. Va. 319, 169 S.E. 74, which recognized and applied the rule of substantial compliance and sustained the adoption of the amendment there involved as valid, and the cases from other jurisdictions, cited and relied on by the majority, have no possible application to the case at bar. Another ground of distinction between this case and the Herold case is that in that case the voters had indicated that they had been adequately informed of the character of the proposed amendment by adopting it by a decisive vote of 335,482 to 43,931, or more than seven to one, whereas, in the case at bar, at the time of its submission and decision, the result of a vote upon the proposed amendment had, of course, not occurred and of necessity could not be ascertained or determined.
The simple issue here involved of the sufficiency of the publication of a proposed amendment within the clearly expressed meaning of a mandatory constitutional provision fixing a minimum period before the next general election for the publication of a proposed constitutional amendment, has been considered and resolved by the Court of Appeals of Kentucky in two cases which, as well considered and persuasive authority, should be decisive of this case, and, in my judgment, should impel this Court to grant the writ prayed for in the petition. In McCreary, Governor v. Speer, 156 Ky. 783, 162 S.W. 99, under a constitutional provision which required the publication of the proposed amendment to be made at least ninety days before the vote should be taken upon such amendment, the Court held that a publication sixty days before the election did not constitute a substantial compliance with the mandate of the Constitution, and, even though the proposed amendment carried by a vote of 65,978 to 32,478, declared it to be invalid. The Kentucky case just referred to was cited in the Herold case, and as to it this Court in the opinion, in distinguishing the two cases, used this significant language: "It must be observed, however, that in the Kentucky case there was a very substantial deviation from theconstitutional mandate as to publication." *Page 27 (Emphasis supplied.) The foregoing quotation indicates clearly that this Court in the Herold case assumed an attitude respecting the Kentucky Court which is in marked contrast with that of the majority in the case at bar, which, by its labored attempt to avoid the pertinency and the force of the holding in the McCreary case, endeavors to create the inference that the Kentucky Court applied the rule of literal, instead of substantial, compliance with the constitutional mandate in arriving at its decision.
In the later Kentucky case of Arnett v. Sullivan, 279 Ky. 720,132 S.W.2d 76, the same Court held that the same constitutional provision involved in the McCreary case was not complied with by the first publication of a proposed constitutional amendment seventy-three days before the election. Notwithstanding the language of the Court in that case, quoted in part in the majority opinion, that "the effort at compliance (substantial or literal) was never taken by the Secretary of State within the minimum period, and therefore, there has been no `substantial compliance' with" the constitutional provision, the majority indulges in the assumption that the Kentucky Court would apply the rule of literal construction and would hold, in the suppositious case stated in the opinion, that "a publication for eighty-nine days, instead of the required ninety days, would not be sufficient compliance if the secretary of state had madeno effort to publish before the beginning of the ninety-day period." Inferences and pure speculation of the character just indicated can not, in my opinion, justify the conclusion reached by the majority, that a publication for approximately sixty days complied with or satisfied the mandatory requirement of the Constitution of publication of the proposed amendment "at least three months" before the next general election in some newspaper in every county in which a newspaper is published. (Emphasis supplied.) In the Arnett case the Court held that there had been no substantial compliance with the constitutional requirement and that the proposed amendment was for that reason of no force or effect. Whether *Page 28 the Kentucky Court would, or this Court should, follow and apply the principle of substantial compliance in the case at bar is of no importance for the reason that there has been no compliance whatsoever with the publication requirement of Article XIV, Section 2, of the Constitution.
It will not do to say, as does the majority, that the constitutional provision in question was first incorporated in the Constitution of 1863 "without much debate"; or that a shorter period than three months was suggested and rejected; or that "the intent and purpose of the publication provision in question was to inform the voters of West Virginia in ample time, before a proposed constitutional amendment is to be voted upon, to make up their minds whether they would vote in favor of its adoption or rejection"; or that at the time the present Constitution was adopted "the facilities of communication and transportation were meager indeed in comparison with those of today"; or that, in effect, a different, better, and more effective method of informing the voters than that expressly provided by the Constitution has been resorted to in connection with the proposed amendment and that the people of West Virginia are as well or even better informed with respect to it as they would have been if the method required by the Constitution had been used; and that, for those reasons, the plain mandate of the fundamental law may be ignored and disregarded in changing and amending it. Such expressions are merely the sounding brass and the tinkling cymbal of lack of appreciation of consequences of grave and perilous importance. Substantially the same argument was presented in the case of Arnett v. Sullivan, 279 Ky. 720,132 S.W.2d 76, and rejected by the Kentucky Court in these words: "The argument is unconvincing either from a logical or precedent standpoint." The conclusive answer to the foregoing statements is that though zeal for progress and improvement, such as a popular project for good roads throughout the State, may engender the belief that the present publication requirement of the Constitution is outmoded and less desirable than other publication methods of more modern *Page 29 use and development, there is no other method recognized or authorized by the Constitution, and that the method which it provides can not be ignored and disregarded or replaced by any supposedly more desirable substitute in any manner other than that which the Constitution expressly prescribes.
Back of the effort to submit the proposed amendment is the commendable and popular desire to make prompt and effective provision for more and better roads within this State. Good roads are desirable and progress and development depend in large measure upon the creation and the maintenance of an adequate and modern road system. But the preservation of the integrity of the Constitution, subject only to its amendment in the manner prescribed by its terms, is essential to the continued governmental existence of the State, without which roads, whether good or bad, would be of little use to the people of West Virginia. Rome had good roads, some of which still remain; but Rome had no firm or enduring constitution to safeguard the liberty of her people. The roads remain for the use of other peoples, but all that remains of the ancient Roman state which built them is its recorded history. I favor good roads, but I would not acquire them by a method not authorized by the Constitution of this State or at the unnecessary risk of imperilling and undermining that fundamental law. Without such risk, the proposed amendment can be adopted with comparatively little delay by the voters, if they desire to do so, at the general election in 1950, after appropriate legislative action and after compliance with the publication requirement of Article XIV, Section 2, of the Constitution.
Unless plain and simple words have entirely lost their meaning, and are to be given no force or effect whatsoever, Article XIV, Section 2, of the Constitution requires the publication of the proposed amendment at least three months before the next general election. No more clear, familiar, definite, or explicit language can well be imagined or employed to accomplish the manifest purpose of that provision of the Constitution. In Harbert v. The *Page 30 County Court of Harrison County, 129 W. Va. 54, 39 S.E.2d 177, with reference to the Constitution of this State, this Court said: "The Constitution of this State is the supreme law of West Virginia; it is subject only to the Constitution of the United States 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, all of which constitute the supreme law of the land. United States Constitution, Article VI, Clause 2. The Constitution of West Virginia is binding upon all the departments of government of this State, all its officers, all its agencies, all its citizens, and all persons whomsoever within its jurisdiction. The three branches of our government, the legislative, the executive, and the judiciary, alike derive their existence from it; and all of them must exercise their power and authority under the Constitution solely and strictly in accordance with the will of the sovereign, the people of West Virginia, as expressed in the basic law. It is the solemn duty of this Court, its creature, to obey and give full force and effect to all its terms and provisions." The people, in adopting the Constitution expressly required the publication of any proposed amendment for at least three months before the next general election before such amendment could be adopted and made effective as part of the basic law of this State. The meaning of this requirement is positive and it is plainly expressed. The expression "at least three months" means a minimum period of three months. It does not mean a substantially shorter period. A period of approximately three days more than two months is not "at least three months" and a publication for the shorter period clearly does not satisfy, either literally or substantially, or in any degree or sense whatsoever, the requirement of Article XIV, Section 2, of the Constitution, which every public officer in this State has sworn to support.
When a written instrument expresses its purpose and intent in clear and unambiguous terms, as does the constitutional provision involved in this proceeding, the *Page 31 courts will not resort to construction but will give force and effect to the instrument according to its provisions. SeeKanawha Banking and Trust Company v. Gilbert, 131 W. Va. 88,46 S.E.2d 225. "Where the terms of a writing are plain and unambiguous, there is no room for construction, since the only office of judicial construction is to remove doubt and uncertainty." 12 Am. Jur., Contracts, Section 229. In point 3 of the syllabus in Chesapeake and Ohio Railway Company v.Miller, Auditor, 19 W. Va. 408, this Court said: "When the text of a constitutional provision is plain and unambiguous, courts in giving construction thereto are not at liberty to search for its meaning beyond the instrument itself." In considering the meaning and the effect of Section 14, Article VII, of the Constitution, in May v. Topping, 65 W. Va. 656, 64 S.E. 848, this Court used this language: "The plain terms of this constitutional provision should prevail. A Constitution is made for the people and by the people. The interpretation that should be given it is that which reasonable minds, the great mass of the people themselves, would give it. `For as the Constitution does not derive its force from the convention which framed, but from the people who ratified it, the intent to be derived at is that of the people, and it is not to be supposed that they have looked for any dark or obstruse meaning in the words employed, but rather that they have accepted them in the sense most obvious to the common understanding, and ratified the instrument in the belief that that was the sense designed to be conveyed.' Cooley's Const. Lim. 81. The great Chief Justice Marshall, in the interpretation of a provision of the national Constitution, said: `As men whose intentions require no concealment generally employ the words which most distinctly and aptly express the ideas they intend to convey, the enlightened patriots who adopted it must be understood to have employed words in their natural sense, and to have intended what they said.' Gibbons v.Ogden, 9 Wheat. 188. There is no ambiguity in Section 14, of Article 7. It is plain. It needs no construction." *Page 32
The established and well recognized rule relating to the effect to be given to plain and unambiguous language of constitutional provisions, which directly applies in this case, is stated in 11 Am. Jur., Constitutional Law, Section 64, in these words: "It is a general principle that the intention to which force is to be given is that which is embodied and expressed in the constitutional provisions themselves; for words are the common signs that mankind make use of to declare their intention to one another. When the words of a man express his meaning plainly, distinctly, and perfectly, there is no occasion to have recourse to any other means of interpretation. The court, therefore, in construing a constitutional enactment, is usually said to be limited to the language of the enactment itself. It may not be governed by what the framers of the amendment might have meant to say, but is of necessity controlled by what they did say. The rule is sometimes stated more completely that a constitutional provision which is positive and free from all ambiguity must be accepted by the courts as it reads. In such a case no construction is permissible, and there is no excuse for interpolation or addition. In other words the courts are not at liberty to search for its meaning beyond the instrument, nor are they at liberty, by a resort to the refinements of legal learning, to restrict an obvious meaning." In 12 C. J. 703, the statement is: "While it is the duty of the courts to ascertain and carry into effect the intent and purpose of the framers of a constitution, this intent must be that which they have embodied in the instrument itself. To ascertain the meaning of a constitution, therefore, the first resort in all cases is to the natural signification of the words used, in the order and grammatical arrangement in which the framers have placed them. If, thus regarded, the words used convey a definite meaning which involves no absurdity and no contradition between parts of the same writing, then the meaning apparent on the face of the instrument is the one which alone courts are at liberty to say was intended to be conveyed. And the meaning, when so ascertained, must be taken as the authoritative rule. There is no occasion for construction in such cases, *Page 33 and it is not allowable." See also 16 C. J. S., Constitutional Law, Section 19a.
In the opinion in Bee v. City of Huntington, 114 W. Va. 40,71 S.E. 539, this Court used this language: "Regarding constitutional construction, this court said, in C. O. Ry. Co. v. Miller, 19 W. Va. 408, 419: `Where the text is plain and unambiguous, courts are not at liberty to search for its meaning beyond the instrument itself.' This rule was emphasized by the New York Court in Newell v. People, 7 N.Y. 9, 97, as follows: `That which the words declare, is the meaning of the instrument; and neither courts nor legislatures have a right to add to or take away from that meaning.' The doctrine, thus stated, is universal. Cooley's Constitutional Limitations (8th Ed.), 124, etc.; 12 C. J. 703; Board of Commissioners v. Rollins,130 U.S. 662, 32 L. Ed. 1060. The `plain and unequivocal language' of the amendment, as was said in the Finlayson case, `leaves no room for interpretation'. We cannot, under such circumstances, weigh the policy of the legislature. Our duty, as pointed out inPeople v. Draper, 15 N.Y. 532, 546, is merely `the humble one of construing the constitution by the language it contains.'" The rule was recognized and stated in these words in the well considered Texas case of Cox v. Robison, 105 Tex. 426,150 S.W. 1149: "The fundamental rule for the government of courts in the interpretation or construction of a constitution is to give effect to the intent of the people who adopted it. The meaning of a constitution is fixed when it is adopted; and it is not different at any subsequent time when a court has occasion to pass upon it. People v. Blodgett, 13 Mich. 127. Where its terms are plain and definite, that which the words declare is the meaning of the instrument. In such cases there is no room for construction; the words of the instrument lie before the court already molded to their use, and its province extends no further than the enforcement of the language as written." Under the rule stated in the cited texts and cases, this Court should give full force and effect to the constitutional provision which expressly requires publication of a proposed amendment *Page 34 at least three months before the next general election, and should not construe it to mean a substantially shorter period of time.
With full recognition that the admitted failure to cause publication of the proposed amendment at least three months before the general election in November, 1948, resulted solely from an unintentional and regrettable oversight upon the part of some official in the executive department, I would apply, in the decision of this case, the principles expressed in this language in Arnett v. Sullivan, 279 Ky. 720, 132 S.W.2d 76: "Written constitutions in governments adopting them, charter the course to be followed by all agencies and departments operating under them, as well as the people composing the government. * * *. If a particular constitution contains provisions not adaptable to changed present conditions there is always found in it means and methods by which it may be amended, and no court should approveany other method of amendment than the one or ones soprescribed." (Emphasis supplied.)
As the publication requirement of the Constitution respecting the proposed amendment has not been complied with, either literally or substantially, the submission of the amendment to the voters and its adoption by them at the election in November, 1948, would, in my opinion, be unauthorized and of no binding or valid force or effect. For that reason I would award the writ of mandamus prayed for in the petition.