The times dispatch. [volume] (Richmond, Va.) 1903-1914, 1906-08-18
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Supreme Court Sustains Legisla-
ture III Button Case II IA a.
Very Strong Opinion. II
WRITTEN 9 y JUDGE WHITFIELD
Law ~ the Case Is Il; Clearly and
Ably Set Out Confirnaato ry 4
sof the Verbal Statement.

The Supreme Court Of, Virginia. through
Judge Whit tie, yesterday /, handed down
q formal written opinion onfrmat tory of
the verbal one recently given sustain
Ing the election Of Colonel iJospeh Button
as Insurance commissioner by tho Leg
8islnt uro. III 4@S4 !!s353 4 HI i3E2 5
55 The aper IL d very able document, and
viii beS wldely u road. 81 ecially by the
legal profession. The cnso Is one filth
which the public is4 vol acquainted. and
The opinion, hsisHprinted In full be- "
low, speaks clearly for itself. Fl Il y
IA Here It IL, 3ls4 II II N III "a,
Joseph! Button 81 .S f& VI
The X tate n Corporal ion Commission OF
M Virginia a{ Il 5t iE
u Opinion BY Judge STAFFORD @, Whtttlei
filed Richmond, Va, August i Z, 1906:
Il AT d special te nm OF this court, con 4
yened at the instance OF the Governor Of
the Commonwealth IN the cit OF Rich Il
Imond, July 81, 1905. 4 a peremptory writ
OF rnnndamus was award commanding
the State Corporation Commission TO al n
low Jdspeh B luton, who shad been chosen.
CommissionerGof Insurance for the Stntel
OF 'sVirginia by the General Assembly and
commissioned as such BY the Governor, I to-
qualify before them by taking the oathsi
Of Office and executing bond as REQUIRED
by law. III 3 Si
Constitution Quoted.
The commission had declined to- permit
the petitioner to qualify. ntertain!ng the
opinion that the provision In the act sofi
March 4 6. 81 1906. for the election Of d the
Commits sioner Of Insurance ]. by the Gen N
,eral "A sRenlbly was In nfllctF with SEQ
ton 1876 OF the State Constitution and
void The sole question, therefor re, s for our
wa 8 y the const ~
of. that a ct 9.
b The provisions Sof article ~ sectio ass, q
Of the Constitution, nvolYed In this con-
troversy. are as fol lows: RI a ,,3@ .5
iE'.The commit sson shall; annually elect
one Of their members chairman OF the
same, {, and shall have one u clerk, one
baiift, and d such other Jerks, onic ers,
assistants and subordinates as may be
provided by lazy, oil Of whom shall pc ,i''
appointed and subject to removal by the
commission 1t shall prescribe its own
rules Of order and proceed ures except $50
far5as the same are specified iflsthis Con
stitutl on, or X any amendment NJ thereof.
The III General Assembly may establish 'l /
within the department, and sui tect to the
supervision and control OF the commits
sion, subordinate divisions, or bureaus, y OF
insurance., banking or other g. special
bra nches OF the business OF that epart-3
ment. n TIL III I5 i
The commission denied the constitutions
3ality OF the statute in the part ioular
mentioned, maintaining that section loo
of the Constitution devolved the duty upon
them OF appointing the Insurance Com
missioner. ~ i5Ss y 81 4 K t$S9i53 3
The Main Question.
h Though the question before US lies In
-, k6oy ri
binary importance and in approaching
the consideration Of It there are certain
fundamental principles which must not
be lost sight OF. Thus. IN q government
such as ours, OF ssreserved powers the
Legislative department "a cknowle lodges no;
fsuperIors except the Federnl and State
Constitutions, and Its authority to enact
laws unless forbidden by; one or theHothers
OF those instruments'fn sexpress terms, or
by necessary plicat Ion, As paramount
Smith VI. Commonwealth. % .Va.,r1 9oi !;
Virginia Tennessee q. and Iii Co. w. Nc
EClelland, e8 Va, "a. Moreover, there ls5
an9 obvious distinction between the. con-
struction OF grants OF power by the = ed
eral Constitution tot Congress and grants
4 OF power: by 3 the State Constitution to
the General Assent bly,. IN the first case.
the grant is the sole source OF congress
.slonal power, and is, therefore. to & pc
construed strictly: while in the latter the
grant, being merely declaratory OF pre-
existent power, Ia to be construed lib
orally, In the one instance the EXPOSE
tor mus search for constitutional sane
tion authorizing the enactment;S$in the
other the question must be 3lfor constttu-t
tional Limitation forbidding It. he constt--1
K tuition Is in no sense q grant OF power TO-
the Legislature, but 1t Is a Limitation to
Its general powers Il Ks "a Il;
Lie at T Foundation. Is
So it has been said In the part!-
ton Of power between the three de-
partments OF government the power
OF making laws Is conferred on the
General Assembly; some laws they.
are compelled by mandate. TO MAXI;
other laws they are forbid den To-
powers; all subjects OF legislation not
affected by mandate, nor by prohibition.
are within the discretion OF the General
Assembly, K Common wealth v. Drewry,
Is Graft, ],
1t has also been held that the Con-
stitution OF the United States Is q source.
and grant OF power ID. ttse Congress OF
the United States, It ia an enAtAinK and
no., restraining instrument Congr essI
can do nothing except what the constit.-s
ton. either directly or by reasonable con-
struction. authorizes It to do. Tho Con-
stitution OF Virginia, however. Is a re-
strain.ng instrument, ana the Leg lsnture
OF the State possesses all legislative
power not prohibited by tho Constitu--
ton. Brown v.oIcpps. 81 Va. 72S.
Tbese propositions are automatic and
lie at the very foundation OF our instl-
tutIons. 5il
Often Excmplihed.
AZ corollaryfto the foregoing postulates
arises the rule OF construction.t tn In a
doubtful case It liz the province Eof the
courts To resolve all doubts In favor Of
the econstltutionallty OF the act OF the
Legislature. a. n # a.
ePlsnary power In the Legislature for