The brief filed with the petition by the attorney general is a monument to his perseverance and industry. However, the brief does not shake my concurrence in the majority opinion. The brief again advances the rule requiring weight to be given a legislative construction of the Constitution. That rule presupposes legislative deliberation. There was no such deliberation on House Bill 314, the act in question. This statement is made advisedly. The Journal of the House of Delegates shows that the bill (in its original form) was reported to the House by its Committee on Finance at 10 a. m., March 10th, that the bill was taken up at 8 p. m. of that same day, and at that hour was amended "by striking out all thereof and substituting in lieu of same" the bill in its present form, and as amended was forthwith passed. The bill thus substituted is radically different from the original bill. The Journal of the Senate shows that the bill was presented to the Senate on the morning of March 11th, and was rushed through on the same day without senatorial knowledge of its contents. The Journal shows that when Senator Hodges' name was called, he explained his vote in the negative as follows: "I cannot assume as a member of the Senate the personal responsibility of the enactment of a measure such as this, * * * *Page 68 without having had any opportunity to know and understand the contents of the bill. * * * I cannot concur in the viewpoint that such an act should be passed by this Senate without the benefit of a single minute's deliberative consideration, either in a Senate committee or upon the floor of the Senate."
The Journal also contains a statement from Senator Herold that he did not know and had not been given any opportunity to acquaint himself with the contents of the bill. The Journal does not show that any senator challenged these statements or claimed acquaintance with the bill. Consequently, the bill has no standing whatever, in fact, as a legislative construction of the amendment.
The brief of the attorney general would demonstrate that certain governmental units cannot function under the limited levies prescribed by the amendment. Even so, that contingency cannot militate against the majority construction of the amendment. I cannot bring myself to the opinion that the plain directions given by the people in the amendment in 1932 become ambiguous in 1933, when it appears that some governmental units cannot survive if the directions are carried out. The language of the amendment means the same now as in 1932, irrespective of its effect. The brief asserts positively that it was not the intention of the people in 1932 to abandon municipal government. Perhaps not in every instance. But since the opinion herein was handed down, the city of Beckley has refused by an overwhelming vote to increase the maximum rates under the amendment, though fully advised that such rates would provide no funds for current municipal expenses. The fact that a representative municipality has done the very thing in 1933 which the brief says was not within contemplation in 1932, sufficiently answers its assertion. Constitutional mandates are not to be distorted because of a crisis in governmental affairs. Heed the Constitution itself, Article I, section 3:
*Page 69"The provisions of the Constitution of the United States, and of this State, are operative alike in a period of war as in time of peace, and any departure therefrom or violation thereof, under the plea of necessity, or any other plea, is subversive of good government, and tends to anarchy and despotism."
The wisdom of that mandate is underwritten by an express declaration of the Supreme Court of the United States. In December, 1866, during the turbulence following the Civil War, that Court said in Ex Parte Milligan, 4 Wall. 2, 120-1,18 L.Ed. 281: "The Constitution of the United States is a law for rulers and people, equally in war and in peace, and covers with the shield of its protection all classes of men, at all times, and under all circumstances. No doctrine, involving more pernicious consequences, was ever invented by the wit of man than that any of its provisions can be suspended during any of the great exigencies of government. Such a doctrine leads directly to anarchy or despotism."
I see no necessity for the failure of governmental units to any great extent. There are potent expedients which have not yet been tried, among which may be considered:
(1) The police power of the state. In regard thereto I submit the following observations: (a) The exercise of the police power must have a substantial basis. State v. Stahlman, 81 W. Va. 335 -6, 94 S.E. 497. Such exercise is justified in case of public necessity. Bank v. Haskell, 219 U.S. 104, 111. Under the present temper of the people, I would say that the power should be exercised only in case of great public necessity. (b) A demand for money under the power, to tax is for revenue. A like demand under the police power is for regulation. Cooley Taxation (4th Ed.), sec. 1784. See generally Gray, Limitations on Taxing Power, secs. 1404-5-6. Revenue from taxation defrays the general expenses of government. Desty on Taxation, sec. 7; 61 C. J., subject, Taxation, sec. 2. The fees collected under the police power pay only the expenses of meeting the particular emergency. Burroughs on Taxation, 146-7, 392. (c) "Taxation for revenue purposes and taxation under the police power for regulation purposes are distinct." Desty supra, sec. 192. (d) The police power cannot override a constitutional provision. State v. Goodwill, 33 W. Va. 179, 185, 10 S.E. 285; Cooley Const. Lim. (8th Ed.), p. 1229. But (e) "Provision in state constitutions as to taxes do not apply to charges exacted as an exercise of the police power." Cooley Taxation (4th Ed.), sec. 29. Accord: 12 C. J., subject, Const. Law, sec. 414.
(2) Assumption by the state of the payment of county road *Page 70 bonds. This would seem to be essentially fair since the State has taken from the counties the control of roads. Moreover, the constitutional amendment of 1920 directed the legislature to "make provision by law for a system of state roads and highways" and to provide a state revenue "to build, construct and maintain the same, or assist in building, constructing and maintaining the same." It would seem that the plenary powers thus conferred warrant the state in assisting counties to pay for such county road construction as was incorporated into thestate system of highways.
The Constitution, Article 10, sections 4 and 6, forbidding the assumption by the state of certain indebtedness is not overlooked. But as to section 4, see the remarks of this Court in Bates v. State Bridge Commission, 109 W. Va. 186, 188-9,153 S.E. 305; and as to section 6, note our comments thereon inRoad Commission v. Kanawha County Court, 112 W. Va. 98, 106-7,163 S.E. 815, 818 (in re advancement by the commission for rights of way for state roads within the county): "In the debates at the Wheeling Convention which formulated this provision, the discussion related solely to state aid or credit to corporations for local and sectional improvements. See manuscript report of the convention, for the period February 1st to February 4th, inclusive, 1862. Department of Archives and History. See also sketch 'Formation of West Virginia,' 1 W. Va. Law Reports 72. The language as well as the history of the section demonstrate that it has reference to state aid and state payments in matters of territorial interest to the county, and not to a situation like this where the advancement made the county by the state is essentially in the interests of the entire state. Sedgwick (supra, 418) warns that 'a strict adherence to the mere letter of a written constitution would render our system practically intolerable.' This warning in secular matters parallels that of St. Paul's in spiritual — 'The letter (of the testament) killeth.' We will heed these sages." In McCulloch v. Maryland, 4 Wheat. 316, 428, it was held that "the power of taxing the people and their property is essential to the very existence of government." There are many provisions in our Constitution which are not essential to the existence of government, no matter how expedient or desirable they may be. Therefore, when *Page 71 provisions, such as sections 4 and 6, supra, which are not essential to the life of the state, impede the workability of a tax provision, the former, as the less important, must yield. For all which and for the further reason that the tax amendment is the latest expression of the people, I submit that no former constitutional provision can prevail against it. Cooley Const. Lims. (8th Ed.), p. 129.
(3) Other subjects for indirect taxation. An examination of the codes of sister states will show fertile fields for indirect taxation which West Virginia either has not entered at all, or has cultivated insufficiently. Alexander Hamilton, than whom none wiser in fiscal matters has yet arisen in this country, extolled the advantages of indirect taxation over land taxes and said that the former "must for a long time constitute the chief part of the revenue raised in this country." See The Federalist Nos. 12 and 21. In this emergency what better counsel could we take than that of Hamilton? See generally on taxation Smith's Wealth of Nations, pp. 246 to 317, inclusive, and Mills' Political Economy, Vol. 2, pp. 394 to 478, inclusive.
The specification of the foregoing expedients is designed primarily as a concrete answer to the position of the attorney general, and not as a suggestion to the lawmakers.
I see no prejudice to the people if some governmental units do fail. The failure of a unit to function does not imply a failure of government within the territory comprising the unit. That territory would simply be absorbed in some other unit. The time is ripe for the consolidation of overlapping units, and of county units, also. The present arrangement of counties was made practically a century ago, in the day of foot and horse travel and to accommodate that method of transportation. The arrangement is no longer required in this day of swifter communication. Because of the automobile, the telephone and radio, county officials could give better service now to a citizen who lived a hundred miles from the county seat than was given to the citizen ten miles from the court house at the time the present county lines were established. There is unquestionably much sentiment in favor of present county divisions. But preservation of county lines will not be preferred by the people to preservation of their *Page 72 homes. The attorney general emphasizes the obligation to maintain present counties as units of constitutional government. The Constitution, Article II, section 1, defines the state in the following manner: "The territory of the following counties * * * shall constitute and form the State of West Virginia." It is apparent from that definition that the counties, as such, do not constitute the state, but theterritory within the counties. An organization of counties must be maintained under the Constitution, but there is no constitutional obligation to maintain the boundaries of the existing county system. Article IX, section 8, expressly contemplates changes in county units. Article III (Bill of Rights), section 3, proclaims the absolute right of a majority of the community to reform or alter an existing scheme of government "in such manner as shall be adjudged most conducive to the public weal." It seems to me that the amendment, exproprio vigore, authorizes the alteration or even termination of any constitutional unit or scheme which cannot survive under the reduced levies. Constitutional government will not languish because of changes in the arrangement of local units.
Readjustments under any expedient will likely produce some inequalities and injustice, but that likelihood should not deter our legislators. Note the observation of our greatest commentator on taxation, Judge Cooley: "The impossibility that government should be administered even by the most conscientious rulers without unjust consequences in particular cases is universally recognized, and the state is therefore considered to have performed its full duty when it has devised and established such general rules and regulations as seem calculated to reduce such consequences to a minimum." I Cooley, Taxation (4th Ed.), sec. 1, p. 66.
I would resolve the situation as follows: A tax for revenue is simply the price paid by the taxpayers for government. See generally State v. Beardsley, 77 Fla. 803, 82 So. 794; Desty on Taxation, sec. 18; 61 C. J., subject, Taxation, sec. 2. It would seem elementary that whenever the people will to purchase a less expensive administration, they cannot be thwarted. The people of West Virginia have submitted the reduced price they will pay for government. A unit which *Page 73 cannot meet that price is no longer in the popular market. The passing of such a unit is of far less moment than the continued sales of homes and farms under a confiscatory tax rate. Thousands of business concerns and many more thousands of individuals in our state have retrenched and readjusted their affairs to meet the depression. It is not too much to expect of those who guide the destiny of our state that they meet the fiscal emergency in like manner.
Upon a second application for rehearing (Litz, Judge, speaking for the Court):
In a second petition for rehearing, the attorney general has requested us to respond in specific terms as to whether the limitations in the amendment include taxes for state purposes. We said in the Finlayson case that "the plain language 'aggregate of taxes' means all the taxes." That language, which necessarily includes taxes for state purposes, has been repeated and approved in the opinion of this case.
We now re-state, from point one of the syllabus, that the limitations embrace levies for all purposes, meaning thereby to include state, county, district and municipal taxes.
Judge Maxwell does not concur in this view.
MEMORANDUM OF POINTS AND AUTHORITIES TO BE FURNISHED THE REPORTER OF THE SUPREME COURT OF APPEALS, WITH THE REQUEST THAT THE SAME BE PUBLISHED.
Homer A Holt, Attorney General, for the Appellees, cited, among others, the following points and authorities:
Constitution of the United States, Article IV, Section 4.
Constitution of West Virginia, Article I, Section 1.
State ex rel. Nance v. Brown, 71 W. Va. 519.
Commonwealth v. City of Newport News (Virginia) 164 S.E. 689.
Rauch v. Chapman, 16 Wn. 568; 48 P. 253.
In Re: Application of State, (Okla.) 127 P. 1065.
State ex rel. Tipton v. Erickson, (Mont.) 19 P.2d 227.
Potter v. Douglas County, 87 Mo. 239. *Page 74
Cooley's Constitutional Limitations, Eighth Edition, Vol. 2, *page 1030.
City of East St. Louis v. United States, 28 L.Ed. 162,110 U.S. 321.
Dickinson v. Talbott, (W.Va.) 170 S.E. 425.
Corrugated Culvert Company v. County Court, 114 W. Va. 138,171 S.E. 110.
Welch Water Company v. Town of Welch, 64 W. Va. 373.
Von Hoffman v. Quincy, 4 Wallace (71 U.S.) 535; 18 L.Ed. 403.
Fisk v. Jefferson Police Jury, 116 U.S. 131; 29 L.Ed. 587.
Shreveport v. Cole, 129 U.S. 36; 32 L.Ed. 589.
Mobile v. Watson, 116 U.S. 289; 29 L.Ed. 620.
City of Cleveland v. United States, 166 F. 677.
State ex rel. v. New Orleans, 37 La. Ann. Reps. 528.
State ex rel. Marchand v. City of New Orleans, 37 La. Ann. Reps. 13.
Mauney v. Board of Commissioners, 71 N.C. 486.
Trull et al. v. Board of Commissioners, 72 N.C. 388.
French v. Board of Commissioners, 74 N.C. 692. *Page 75 Clifton v. Wynne, 80 N.C. 145.
Cooley's Constitutional Limitations, Eighth Edition, Volume 1, pages 582 and 136.
Cooley on Taxation, Fourth Edition, Vol. 1, page 373.
Old Dominion Building, etc. Association v. Sohn, 54 W. Va. 101, Syl. 5, 6, 7, 8, and 9, and at page 112.
Click v. Click, 98 W. Va. 419, Syl. 2, and page 430.
Hasson v. Chester, 67 W. Va. 278, Syl. 2.
Rider v. County Court, 74 W. Va. 712, Syl. 1, and page 721.
Dickey v. Smith, 42 W. Va. 805, and at page 809.
Coal etc. Ry. v. Conley, 67 W. Va. 129, Syl. 29, and pages 186-187.
Parsons v. County Court, 92 W. Va. 490, Syl. 2, and page 495.
Fleischmann v. United States, 270 U.S. 349; 70 L.Ed. 624, Syl. 10.