State ex rel. City of Charleston v. Coghill

• Decision Date: 24 July 1973
• Docket Number: No. 13355,13355
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. the CITY OF CHARLESTON, etc. v. Kenneth L. COGHILL, Clerk, etc.

Page 113

207 S.E.2d 113

156 W.Va. 877

STATE ex rel. the CITY OF CHARLESTON, etc. v. Kenneth L. COGHILL, Clerk, etc.

No. 13355.

Supreme Court of Appeals of West Virginia.

Submitted May 16, 1973.

Decided July 24, 1973.

Syllabus by the Court

Chapter 8, Article 16, Section 4a of the Code of West Virginia, 1931, authorizing the creation of municipal parking authorities is not in contravention of Sections 1 and 5 of Article X or Sections 9 and 10 of Article III of the Constitution of West Virginia or of the Fourteenth Amendment to the Constitution of the United States.

Jackson, Kelly, Holt & O'Farrell, James K. Brown, Lee O. Hill, Scott L. Messmore, Charleston, for relator.

Robert R. Harpold, Jr., City Sol., Charleston, for respondent.

NEELY, Justice:

This is an original action in mandamus in which the City of Charleston, a municipal corporation of the State of West Virginia, seeks to require its clerk, Kenneth L. Coghill, to publish a certain notice inviting proposals from all persons interested in purchasing or leasing space included in a proposed off-street parking facility in Charleston. Respondent Coghill was authorized and directed to perform this duty by resolution No. 228--73 which was adopted by the Charleston City Council on April 2, 1973.

The respondent clerk has refused to publish the notice upon the ground that Chapter 8, Article 16, Section 4a of the Code of West Virginia, 1931, which gives authority to municipal corporations to construct motor vehicle parking facilities, is unconstitutional. If Code, 8--16--4a is constitutional, then the City Clerk has a nondiscretionary legal duty to publish the notice as directed by the council. The purpose of this litigation is to test the validity under the State and Federal Constitutions of the enabling legislation, Code, 8--16--4a, in order to facilitate the preparation of plans and orderly financing for a project in Charleston. In similar cases this Court has permitted an action in mandamus to be used as a vehicle for testing the constitutionality of a statute. State ex rel. State Building Commission v. Moore, W.Va., 184 S.E.2d 94 (1971); State ex rel. County Court v. Demus, 148 W.Va. 398, 135 S.E.2d 352 (1964); State ex rel. County Court v. Bane, 148 W.Va. 392, 135 S.E.2d 349 (1964).

The respondent clerk first maintains that the Legislature's delegation of authority to a municipal corporation to determine the amount of space in a public parking facility which will be leased or sold for private business, commercial, or charitable uses is an unconstitutional delegation of legislative power. While noticing that respondent's position finds its source in the well known constitutional principle that a legislature may not abdicate its legislative power, it has also long been established law that a legislature may delegate legislative powers to municipal corporations as to matters of purely local concern. 16 Am.Jur.2d, Constitutional Law § 251. This Court said in Syllabus pt. 1 of West Virginia Water Service Company v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957):

"Under the police power of the State, the Legislture has power to provide for the protection of the safety, health, morals, and general welfare of the public, and may delegate such powers to municipalities created by it' (Pt. 1 Syllabus, Hayes v. The Town of Cedar Grove, 126 W.Va. 828, 30 S.E.2d 726), State ex rel. Bibb v. Chambers, Mayor, etc., 138 W.Va. 701, pt. 6 syl., 77 S.E.2d 297.'

This Court, therefore, holds that the Legislature is entitled to delegate power to a municipal corporation to determine the appropriate mix of public and private uses of a public parking facility, subject to the constitutional limits on the municipality's discretion which will be further discussed in this opinion.

The respondent's most serious challenge to the enabling legislation is that it does not fulfill a public purpose because it authorizes the allocation of space within a public faicility for sale or lease to private individuals. In Code, 8--16--4a(a) the Legislature set forth certain findings of fact which reasonably lead to the conclusion that government intervention is necessary and proper to alleviate the problems found by legislative investigation. Code, 8--16--4a(a) says in relevant part:

'. . . That the lack of adequate planning and supervision of the location of parking facilities, the parking of motor vehicles of all kinds and the lack of adequate parking facilities for motor vehicles of all kinds substantially impede the free circulation of traffic in, through and from many municipalities in this State, impede the rapid and effective fighting of fires and disposition of police officers therein, contribute to the location and relocation of commercial and business enterprises outside of urban areas and retard the development of commerce and business within many municipalities in this State, thereby giving rise to urban blight and adversely affecting or threatening to adversely affect the tax base of such municipalities; that such parking crisis can be reduced by such municipalities providing adequate motor vehicle parking facilities strategically located there; that providing properly located terminal space for motor vehicles is a public responsibility; that fostering the development of commerce and business within municipalities, with the increased tax revenues resulting therefrom, is a public purpose . . ..'

Courts are bound, except in extraordinary cases, by the findings made by the Legislature, and, '(a) fact once determined by the legislature, and made the basis of a legislative act, is not thereafter opened to judicial investigation.' State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).

Prior decisions of this Court have continuously enlarged the sphere of permissible government action in what was formerly considered exclusively the private sector. In Chapman v. Housing Authority, 121 W.Va. 319, 3 S.E.2d 502 (1939) this Court held valid the West Virginia Housing Act which had as its primary purpose slum clearance. In State ex rel. West Virginia Housing Development Fund v. Copenhaver, Supra, this Court held constitutional Chapter 31, Article 18, Section 1 et seq. of the Code of West Virginia, 1931, as amended, which provided for the West Virginia Housing Development Fund. The Fund had as its purpose an increase in the amount of housing available to West Virginia residents. Similarly in County Court v. Demus, Supra, this Court reviewed the Industrial Development Bond Act, Chapter 13, Article 2C, Section 1 et seq. of the Code of West Virginia, 1931, as amended, which permitted a county or municipality to acquire property for the purpose of leasing it for industrial purposes, and this Court again found the legislation to be without constitutional infirmities. These cases clearly establish the broad sphere of permissible governmental activity in areas where the Legislature determines that government action is a necessary supplement to private enterprise to alleviate social problems. Public parking is among the public purposes on which the Legislature may direct or authorize government action. Wilmington Parking Authority v. Ranken, 34 Del.Ch. 439, 105 A.2d 614 (1954).

The constitutionality of the enabling legislation would be easily determined if it only authorized cosntruction of facilities to be used exclusively for public parking. However, Code, 8--16--4a(b) expressly provides that a municipality may sell or lease to private individuals space for commercial, business, or charitable purposes within the public parking facility. The question with reference to this provision is whether the enabling legislation establishes sufficiently definite constitutional standards of public purpose to sustain the statute.

Under the cases cited above in connection with the permissible sphere of governmental activity and the public purpose requirements, it is clear that most governmental activity has ancillary private benefits which are enjoyed by some private individuals more than other private individuals. For instance, in Chapman v. Housing Authority, Supra, the West Virginia Housing Act was found to have as its primary purpose slum clearance and as an ancillary purpose, low cost housing. This Court ruled that slum clearance and low cost housing did not deprive any person of the equal protection of the laws, although there was a private benefit conferred upon those occupants of low cost housing which could not be enjoyed by all other persons similarly placed. Th Court ruled such benefits were ancillary and incidental to the public purpose of promoting and protecting, health, morals, safety, and the public welfare. Hypothetically the owners of private motor vehicles who park their vehicles in the parking facility will enjoy a private benefit over those who, due to space limitations within the parking facility, cannot park their motor vehicles there. This result, however, does not detract from the public purpose of the parking facility. Similarly, the private commercial and business occupants within the public parking facility will enjoy a private benefit over those who, due to space limitation, cannot locate their businesses within the parking facility. Again, this result, in the abstract, does not detract from the public purpose of the parking facility unless the private benefits to the private business occupants are so overwhelming, compared with the public benefits, that the nature of the government's project changes from a public purpose with private ancillary benefits to a private purpose with public ancillary benefits.

It is argued by respondent that adequate standards are not established by Code, 8--16--4a to assure that any private use of a municipal parking facility will be ancillary and incidental to the underlying public purpose. There is some merit to this argument as Code, 8--16--4a grants broad statutory authority to a...