The majority has held that the act of the Legislature granting to municipalities, uniformly on the basis of their comparative populations, as the State's contribution to the expense of enforcing by municipalities of State laws for the protection of life and property, a certain percentage of the profits made by the Liquor Control Commission, if and when received, is in violation of Section 6 of Article X of our Constitution. That section reads as follows:
"The credit of the State shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the State ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person; nor shall the State ever hereafter become a joint owner, or stockholder in any company or association in this State or elsewhere, formed for any purpose whatever."
I think the clear meaning of that section, which is necessarily based upon its entire context, is that the State shall not be obligated directly or indirectly for future payments of the debt of another of any nature. I do not believe the word "credit" as here used, includes cash paid, not in the discharge of an obligation, but simply the placing by the State of money in hand uniformly at the disposal of subordinate governmental units for a public purpose. I believe further that the section under consideration is a limitation upon the supreme power of the Legislature, and that a constitutional provision in derogation of that power should be strictly construed. In State ex rel. Thompson v. McAllister, 38 W. Va. 485,488, 18 S.E. 770, Judge Dent, speaking for the Court, had this to say:
"In determining this constitutional question, we find the rule plainly laid down in the case of State v. Dent, 25 W. Va. 19, in these, words, to-wit: *Page 854 'Article 6, § 1, of our constitution provides: "The legislative power shall be vested in a senate and a house of delegates." This obviously confers on them all legislative power, except such as they are prohibited by the constitution in other provisions from exercising.' And the person claiming that an act of the legislature is an infringement of the restrictions of the constitution must point out the provision plainly forbidding, either by express words or by inevitable implication, the passage of such act; and, if none such exists, the act, however unjust or unreasonable it may seem, is valid, and must be sustained by this Court. * * *."
Instead of applying that principle, the majority opinion, in order to limit the legislative power, has ascribed a much broader meaning to the word "credit" than the majority itself states is necessary, saying:
"* * * Unquestionably, credit is that which enables one to enter into an obligation to be met in the future, but that is not the only meaning which may be attached thereto. The setting up of a special fund in the State Treasury from which, under statute law, municipalities are told they may draw quarterly during each fiscal year a specified sum, depending upon their population, is, in our opinion a plain granting of credit on which municipalities may depend in their planning of future expenditures, and future activities, in municipal government."
The majority opinion attempts no further definition of the word "credit". It says only that it includes "The setting up of a special fund in the State Treasury", and thereby making available money in hand.
In using the word "credit" as a curtailment of the power of the Legislature, without other specific definition in so far as the act under consideration is concerned, and as being a "plain granting of credit on which municipalities may depend in theirplanning of future expenditures and *Page 855 future activities" (Italics mine), the majority opinion ignores the fact that the act creates no future obligation upon the State, that the Legislature can at any time repeal it, and that all municipalities are chargeable with knowledge of that fact, and, hence that none would be warranted in incurring additional expenditures due to the legislative grants in question. Those grants cannot, of course, be treated as a gift because not completed by delivery nor as a declaration of trust by the State, binding future Legislatures. Whether the grants do nothing more than demonstrate a spirit of teamwork is a matter for the Legislature to decide: not the courts.
The majority opinion states that the decision of the Court is based upon the purpose that the framers of our Constitution had in mind. Fortunately, what that purpose was does not rest upon opinion nor conjecture, and I am quite willing to rest this dissent upon it not having included what I regard as this Court's gross enlargement of Section 6 of Article X. That section did not originate in the Constitutional Convention of 1872, where the majority opinion seems to assume the intention of the founders was voiced, but in the Constitutional Convention of 1861-63. If one will turn to Volume Three of "Debates and Proceedings of the First Constitutional Convention of West Virginia", there will be found, beginning, respectively, at pages 127 and 189, a full discussion of what are now Sections 4 and 6 of Article X of our Constitution. The reported discussion is exhaustive and, concerning Section 6, the plight of a number of states that encountered financial difficulty in underwriting private corporations that were granted the right to construct internal improvements, including the Commonwealth of Virginia the large indebtedness of which West Virginia expected to pay partly, is dealt with at some length. For example, the construction of the Erie Canal in 1822, and the fact that the State of New York had not in 1861 discharged the indebtedness then assumed by it for that purpose, although the canal had been from the beginning a money-making enterprise, *Page 856 is dwelt upon. In this entire lengthy discussion not one word is said that could in any way be construed as aimed at limiting the power of the Legislature to dispose of the current earnings of a business in which the State is exercising a monopoly: money in hand. It is plain that what the Convention was doing aimed only at preventing the State from at any time or in any way obligating itself, either primarily or secondarily, to make payments in the future for another. If the framers had another purpose in mind, they said nothing of it. Our Constitutional Convention of 1872 changed neither the policy nor the language.
It may be that I do not correctly understand the position this Court took in Kenny v. County Court of Webster County,124 W. Va. 519, 21 S.E.2d 385. If I do, there are several statements in the opinion of the Court, written by Judge Fox, that are directly opposed to what the Court has held in the present case. In stating that the people are the source of all governmental power and that the Legislature is their direct representative with authority to exercise that power, except as restricted by constitutional provision, the Court recognized as enforceable, Code, 9-10-1, which reads:
"The support of public assistance is hereby declared to be the responsibility of the State. The support of general relief is hereby declared to be the responsibility of the county. To the extent that a county is unable because of constitutional restrictions to meet reasonable costs of general relief as required by this article, the responsibility of the State is hereby recognized."
The last sentence of that section was attacked as being unconstitutional because in violation of Section 6 of Article X of our Constitution. In deciding that contention, this Court had this to say:
"The mere fact that in carrying out this responsibility, the state, through its Legislature, requires contribution thereto by the counties, *Page 857 does not prohibit the state from exercising its own prerogatives and from using the county courts as agencies in carrying out its own purposes, and the amount it contributes to the county general relief, by way of state aid, is not lending the credit of the state to the county." (Italics mine).
Can the State extend financial aid to counties in the performance of their duties as agencies of the State, but not to municipalities? The present opinion says that the State can well take care of the enforcement of its laws and can require cooperation and assistance without being "called upon" to make a contribution. This mere statement shows conclusively that it is a matter for the Legislature and not for the courts. But assuming it to be a proper matter for discussion here, we have at present on duty around two hundred State Policemen with a population exceeding two million: one to each ten thousand. Enforcing laws for the protection of life and property can be conservatively estimated as costing municipalities on an average of fifty per cent of their gross revenue. The consumption of alcoholic beverages is a factor in a very large percentage of law violations, particularly where violence is involved. Nearly forty per cent of our people live in municipalities, not counting those who live in mining camps and unincorporated towns. It would seem unnecessary to say that the primary power and duty of law enforcement rests upon the State, that the police power of municipalities is only that delegated them by the State through the Legislature, and that through the Governor it may at any time, by the declaration of martial law, suspend a local unit's power in that regard, the State directly performing its duty of law enforcement. This so-called appropriation to municipalities simply was an aid to the legislative policy of keeping enforcement on a local basis and not endangering the State's being required to assist further in that actual operation.
Few will doubt that the sale by the State of alcoholic beverages is quite a material factor in the cost of law *Page 858 enforcement, perhaps in a less degree that was National Prohibition. Certainly the load of that cost is borne in the main by municipalities. This fact was the reason for the extremely large license fees charged by them when liquor was permitted to be sold under license. The State of West Virginia is exercising a monopoly in that business from which in the last fiscal year it received a profit of not less than $9,000,000.00 or, with one hundred and twenty-four stores and agencies, an average yield of more than $72,500.00 a unit. By holding prices at a very high level the State's profit provokes bootlegging and many other violations of the law that usually accompany it, thus increasing the cost of law enforcement borne by municipalities. The finances of most, if not all, incorporated towns throughout the State are precarious, to say the least. As of June 30, 1949, the balance in the State's general fund exceeded the estimate submitted to the Legislature in the Budget Document by more than $3,133,000.00. Judging by the experience of the fiscal year just closed, this amount will be substantially augmented daily by the State's profit from the sale of liquor. With this rather outstanding contrast in their financial standing, is it to be wondered that the Legislature, as a matter of sound public policy within its exclusive control, under the circumstances saw fit to make available to governmental units of its own creation approximately one-fifteenth of its profit received from the sale of liquor within their boundaries?
What is said in the majority opinion concerning the State's borrowing money and distributing the proceeds among the counties and municipalities without violating Section 6 would be quite convincing were it not for Section 4 of the same article, which, in plain terms, prohibits the State from contracting a debt for any purpose not falling within the named exceptions.
The holding of the majority opinion that this allotment, allocation or contribution of funds is not included in the 1947 budget, is an obvious mistake. An examination of the Budget Bill in question shows that it was included in plain *Page 859 terms and in exactly the same way that it was included in the three preceding budget bills, under all of which the State Auditor had approved payment without raising the question. In addition there is some doubt as to whether the expenditure of moneys received by the State, not as a part of its tax revenue but from independent sources, must be so included. SeeMoses v. Meier, 148 Or. 185, 35 P.2d 981; and Ajax v. Gregory,177 Wash. 465, 32 P.2d 560.
It is quite an interesting speculation concerning where the ultimate responsibility for money paid to the municipalities by the State since 1941 rests. Is money paid under an unconstitutional statute recoverable? Do the municipalities owe it to the State? If so, what are the duties of the Auditor and the Attorney General? See Code, 14-1-18, 19.