State v. Elder

Citation152 W.Va. 571,165 S.E.2d 108
Decision Date24 September 1968
Docket NumberNo. 12725,12725
CourtSupreme Court of West Virginia
PartiesSTATE of West Virginia v. Wayne ELDER d/b/a Black Rock Coal Company and National Surety Corporation, a corporation.

Syllabus by the Court

1. Courts always endeavor to give effect to the legislative intent, but a statute that is clear and unambiguous will be applied and not construed.

2. Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation.

3. Where a bond is given to a public body as a condition of license or other privilege, or conditioned upon compliance with law, the full penalty of such bond may be recovered as in the nature of liquidated damages for its breach, in the absence of express or implied provisions to the contrary in the statute which prescribes the bond, or in the bond itself.

C. Donald Robertson, Atty. Gen., Fred M. Frisk, Jr., Asst. Atty. Gen., Charleston, for appellant.

Kay, Casto & Chaney, George S. Sharp, Charleston, for appellees.

CAPLAN, Judge.

This is an appeal from a final judgment of the Circuit Court of Upshur County. That judgment resulted from an action instituted by the State of West Virginia against Wayne Elder d/b/a Black Rock Coal Company and National Surety Corporation for the recovery of the amounts of four performance bonds executed by the defendants as principal and surety to insure the proper reclamation following surface mining operations conducted under four separate surface mining permits. The judgment of the trial court, based upon stipulations and pleadings of the parties, awarded to the state the full amount of the bond executed under Permit No. 4797 in the sum of $6,000.00 and denied recovery on the other three bonds. From this judgment the state prosecutes this appeal. The appellees, contending that the court erred in entering judgment in the sum of $6,000.00 in favor of the plaintiff, assign cross-error.

Wayne Elder, d/b/a Black Rock Coal Company, obtained four surface mining permits from the State Department of Mines. Permit No. 4374 was issued on July 22, 1957. As required by law, prior to the issuance of the permit, a bond in the amount of $1,500.00 was posted to insure proper reclamation of the land. The defendant, National Surety Corporation, was surety on this bond. In addition to this permit, Elder obtained Permit No. 4482 and posted a bond of $1,000.00; Permit No. 4536 and posted a bond in the amount of $3,500.00; and Permit No. 4797 with a bond in the amount of $6,000.00. National Surety Corporation was the surety on all said bonds.

After the mining operation was completed under Permit No. 4797, defendant Elder failed to perform any reclamation work on the tract of land subjected to surface mining. Thereafter defendant Elder was notified by the plaintiff by registered mail that he had not complied with the statutory reclamation requirements. There being no response from defendant Elder, the Department of Natural Resources of the State of West Virginia forwarded a registered letter to Wayne Elder revoking surface mining Permit No. 4797 and declaring the bond posted thereunder forfeited. By the same letter, Permits Nos. 4536, 4482 and 4374 were also revoked and the bonds posted thereunder were declared forfeited.

According to the order of the trial court the parties stipulated that in relation to Permit No. 4797, Elder 'never performed any reclamation work upon said tract of land'; in relation to Permit No. 4536 it was stipulated that 'no reclamation work remained to be done upon said tract of land'; concerning Permit No. 4482 the parties stipulated that 'no reclamation work was required to be done upon said tract at the present time'; and that on Permit No. 4374 it was stipulated that 'reclamation work was carried out upon the said tract of land except for some reseeding that was to be done * * *'.

Upon the failure of the defendant and it surety to make payment in accordance with the demand of the state this action was instituted.

It is the position of the state that the trial court erred in holding that the state had not properly forfeited and could not recover the amounts of the bonds posted under Permits Nos. 4536, 4482 and 4374. The plaintiff asserts that notice of forfeiture complied with the requirements of Code, 1931, 22--2A--5, as amended by Chapter 99, Acts of the Legislature, 1959, the pertinent part of which reads as follows:

'For failure to do all the things required of the operator within one year after the completion of the mining operation on the land covered by the permit, and after receipt of a thirty-day notice in writing from the director of the department of mines, which notice may be sent by registered or certified mail, that any one or more of such things have not been done, the permit covering the particular operation and any other surface mining permits that may have been issued to the operator involved, shall be revoked by the director of the department of mines, and the performance bond shall be forfeited, unless such operator shall comply with the provisions of this section within said thirty-day period.'

The plaintiff takes the position that a proper interpretation of the above quoted statute would permit the words 'and the performance bond shall be forfeited' to mean and the performance bonds shall be forfeited. The trial court in its opinion said that where the statute provided 'the performance bond shall be forfeited', it meant just what it said, that only one bond would be forfeited. Furthermore, said the court, the plaintiff could not recover on the other three bonds because it failed to give the thirty-day notice required by the statute.

While the defendants agree with the aforesaid holding relative to the forfeiture of the bonds, they contend that the court erred in permitting recovery of the full amount of the bond posted under Permit No. 4797. They reason that such recovery was improper in the absence of proof of damages and cite in support of their contention Code, 1931, 56--6--30.

In order to consider the propriety of the action of the trial court in holding that only one bond was properly forfeited it is necessary to examine the statute then in effect, Code, 1931, 22--2A--5, as amended by Chapter 99, Acts of the Legislature, 1959. Basically, that statute provided that if the operator failed to reclaim the land covered by the permit, upon his receipt of a thirty-day notice from the director of the department of mines that such reclamation had not been performed, that surface mining permit and any other such permits issued to him shall be revoked and the performance bond shall be forfeited, unless the operator shall reclaim the land within the said thirty-day period.

By stipulation of the parties it was agreed that Elder had completed his strip mining operation under Permit No. 4797; that more than one year had passed since the completion of such work; that no reclamation work had been performed on said land; that the director of the department of mines had forwarded to Elder the thirty-day notice required by statute and that such notice had been received by Elder; that during said thirty-day period the operator failed to comply with the pertinent provisions of the surface mining statute; and that as a result of such noncompliance, Elder's permit was revoked and the bond posted thereunder was forfeited....

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