State ex rel. Greenbrier County Airport Authority v. Hanna

• Decision Date: 10 March 1967
• Docket Number: Nos. 12627,12629,s. 12627
• Citation: 153 S.E.2d 284,151 W.Va. 479
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. GREENBRIER COUNTY AIRPORT AUTHORITY, a public corporation v. Sam HANNA, Secretary of Greenbrier County Airport Authority, a publiccorporation. Cooper P. BENEDICT v. GREENBRIER COUNTY AIRPORT AUTHORITY, a public corporation et al.

Page 284

153 S.E.2d 284

151 W.Va. 479

STATE ex rel. GREENBRIER COUNTY AIRPORT AUTHORITY, a public corporation v. Sam HANNA, Secretary of Greenbrier County Airport Authority,

a publiccorporation.

Cooper P. BENEDICT v. GREENBRIER COUNTY AIRPORT AUTHORITY, a public corporation et al.

Nos. 12627, 12629.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 29, 1966.

Decided March 7, 1967.

Dissenting Opinion March 10, 1967.

Syllabus by the Court

1. Chapter 62, Acts of the Legislature, Regular Session, 1966, a special act authorizing the County Court of Greenbrier County to create an airport authority to construct, maintain and operate a public airport and appurtenances and facilities in that county, is unconstitutional, null and void in its entirety as violative of the provision of Article VI, Section 39, of the Constitution of West Virginia that 'in no case shall a special act be passed, where a general law would be proper, and can be made applicable to the case,'.

2. The provision of Section 14 of Chapter 62, Acts of the Legislature, Regular Session, 1966, that the County Court of Greenbrier County may levy taxes as provided by law for the purpose of paying rent for the airport and its facilities is unconstitutional, null and void because violative of the provisions of Article X, Section 8, of the Constitution of West Virginia, that 'no debt shall be contracted under this section, unless all questions connected with the same, shall have been first submitted to a vote of the people, and have received three-fifths of all the votes cast for and against the same.'

3. Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.

4. He who seeks relief by mandamus must show a clear legal right to the remedy.

C. Donald Robertson, Atty. Gen., Thomas B. Yost, Asst. Atty. Gen., Charleston, Edgar L. Smith, Lewisburg, for relator (No. 12627).

Jackson, Kelly, Holt & O'Farrell, Homer A. Holt, James K. Brown, Charleston, Haynes & Ford, Sheldon E. Haynes, Lewisburg, for appellant (No. 12629).

Fred M. Frish, Jr., Asst. Atty. Gen., Charleston, E. D. Knight, Jr., Lewisburg, for respondents (No. 12627).

Edgard L. Smith, Lewisburg, Thomas B. Yost, Asst. Atty. Gen., Charleston, for appellees (No. 12629).

HAYMOND, Judge.

The controlling question in these two companion cases which, though not consolidated, were argued together and submitted for decision upon the record and the briefs and the oral arguments of counsel, relates to the constitutionality of a statute which authorizes the creation by the County Court of Greenbrier County of an airport authority and empowers the authority to construct, maintain and operate an airport in that county. The statute in question is Chapter 62, Acts of the Legislature, Regular Session, 1966, known as Senate Bill No. 66, and the proceedings in which its constitutional validity or invalidity must be determined are an original proceeding in mandamus, in which this Court issued a rule returnable on a former day, and a civil action, instituted in the Circuit Court of Greenbrier County on May 31, 1966 and now pending in this Court upon appeal from the final judgment of the circuit court rendered July 26, 1966.

On February 21, 1967, this Court, by order, refused to grant the writ prayed for by the petitioner in the mandamus proceeding and dismissed that proceeding; and on the same day this Court, by order, reversed the judgment of the circuit court rendered July 26, 1966 denying a motion of the plaintiff to vacate and set aside its judgment of July 9, 1966, and reversed the judgment rendered July 9, 1966 insofar as it held and declared Senate Bill No. 66, Chapter 62, Acts of the Legislature, Regular Session, 1966, to be constitutional and valid, except as to Section 14 of that Act, and reversed that judgment insofar as it denied the plaintiff the injunctive relief sought in his complaint and affirmed the judgment of July 9, 1966 insofar only as it held and declared Section 14 of the Act to be unconstitutional; and by its order of February 21, 1967, this Court remanded the foregoing civil action to the Circuit Court of Greenbrier County with directions that it grant to the plaintiff the relief prayed for in his complaint.

This opinion, which applies to both proceedings, is now filed for the purpose of stating the reasons which caused this Court to deny the relief sought in the mandamus proceeding and to dismiss that proceeding, and to reverse, as indicated, the judgments in the civil action and to remand that action to the Circuit Court of Greenbrier County with the specified directions.

The statute under consideration in these proceedings, the constitutionality of which is challenged in the civil action of Benedict v. Greenbrier County Airport Authority and others here on appeal and is asserted and defended in the mandamus proceeding, contains twenty separate sections, was passed by the Legislature of West Virginia on February 4, 1966, and has been in effect since its passage. To the extent here pertinent it provides that the County Court of Greenbrier County is authorized to create an airport authority and to provide for its membership and the purposes for which it is created; for the appointment and removal of the members of the authority; for its acquisition of real estate and personal property, and the acquisition, construction, improvement, maintenance and operation of a public airport; for the corporate existence of the authority; for the issuance of mortgage bonds, revenue bonds, other bonds, debentures, notes and securities and security for their payment; for the exercise of the power of eminent domain by the authority; for tax exemption for its property, funds and obligations; for the authority to lease the airport and for the County Court of Greenbrier County to become the lessee of such airport and pay rental for its use and operation; for contributions to the fund of the authority by the County Court of Greenbrier County and other persons; for keeping the funds and accounts of the authority; for the disposition of its surplus funds; for covering its employees by Workmen's Compensation; and for the dissolution of the authority.

Section 1 of the Act provides that the County Court of Greenbrier County is authorized to create and establish a public agency to be known as 'The Greenbrier County Airport Authority' for the purpose mentioned in the statute.

Section 2 provides that the authority is authorized and empowered to acquire, equip, construct, improve, maintain and operate a public airport with all usual and convenient appurtenances and facilities in Greenbrier County.

Section 3 provides that the management and control of the airport, its property, operations, business and affairs shall be lodged in a board of five persons who shall be known as 'Members of the Authority' and that such members shall be appointed by the County Court of Greenbrier County; that one of such members shall be a member of the county court of that county and that of the remaining four members no more than two shall be members of the same political party.

Section 9 provides that the airport authority shall have power and authority, among others, to acquire lands and hold title to such lands in its own name; to purchase, own, hold, sell and dispose of personal property and to sell, lease or otherwise dispose of any real estate which it may own; to borrow money and execute and deliver negotiable notes, mortgage bonds, other bonds, debentures, and other evidences of indebtedness, and to give security for their payment by mortgage, deed of trust, or other security agreement with respect to its airport property and facilities in connection with the issuance of mortgage bonds, and to raise funds by the issuance and sale or revenue bonds in the manner provided by the applicable provisions of Article 4A, Chapter 8, Code, 1931, as amended.

Section 14, the validity of which is also involved in these proceedings, provides that the airport authority may lease its airport and facilities to the County Court of Greenbrier County or other available lessee at such rental and upon such terms and conditions as the authority shall deem proper but preference is given to the county court to act as such lessee; and the County Court of Greenbrier County is authorized to enter into such lease at such rental and upon such terms and conditions as it shall deem proper and to levy taxes as provided by law for the purpose of paying the rent for such airport and its facilities.

In the mandamus proceeding the petitioner alleges that it is presently engaged in the construction of the airport authorized by the foregoing statute at Maxwelton, in Greenbrier County, and requires money to be raised by the sale of revenue bonds to meet the construction costs of the airport; that by proper action of its members a resolution was adopted July 21, 1966 authorizing the issuance and sale of $400,000.00 in airport revenue bonds and that by a subsequent resolution adopted September 13, 1966 the chairman and the secretary of the authority were directed to issue, under their signature and the seal of the authority, an interim certificate in the amount of $50,000.00 to be offered for sale to a designated bank in East Rainelle, West Virginia, whose officers had indicated an interest in the purchase of such certificate; that the secretary of the authority, who has the mandatory and nondiscretionary statutory duty to affix the seal of the authority and to place his signature upon the certificate, has refused and continues to refuse to affix the seal of the authority and place his signature upon the certificate because he entertains the belief that the statute is unconstitutional, and the petitioner seeks a writ to require him to execute the certificate in the manner indicated and demanded by the petitioner.

The answer of the defendant in the mandamus proceeding admits the allegations of the petition and by his...