714 F.2d 308 (4th Cir. 1983), 81-2231, West Virginia Mfrs. Ass'n v. State of W. Va.

Docket Nº:81-2231(L), 82-1701 and 82-1729.
Citation:714 F.2d 308
Party Name:WEST VIRGINIA MANUFACTURERS ASSOCIATION, a nonprofit West Virginia Corporation, Appellant, v. STATE OF WEST VIRGINIA and Lawrence Barker, Commissioner of Labor of the State of West Virginia, and United Steelworkers of America, AFL-CIO-CLC and Paul Rusen, Director District 23, United Steelworkers of America, AFL-CIO-CLC, Appellees. WEST VIRGINIA MAN
Case Date:August 03, 1983
Court:United States Courts of Appeals, Court of Appeals for the Fourth Circuit
 
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Page 308

714 F.2d 308 (4th Cir. 1983)

WEST VIRGINIA MANUFACTURERS ASSOCIATION, a nonprofit West

Virginia Corporation, Appellant,

v.

STATE OF WEST VIRGINIA and Lawrence Barker, Commissioner of

Labor of the State of West Virginia, and United Steelworkers

of America, AFL-CIO-CLC and Paul Rusen, Director District

23, United Steelworkers of America, AFL-CIO-CLC, Appellees.

WEST VIRGINIA MANUFACTURERS ASSOC., a nonprofit West

Virginia corporation, Appellant,

v.

STATE OF WEST VIRGINIA and Lawrence Barker, Commissioner of

Labor of the State of WV, Appellees,

and

United Steelworkers of America, AFL-CIO-CLC and Paul Rusen,

Director District 23, United Steelworkers of

America, AFL-CIO-CLC, Appellees.

WEST VIRGINIA MANUFACTURERS ASSOC., a nonprofit West

Virginia corporation, Appellee,

v.

STATE OF WEST VIRGINIA and Lawrence Barker, Commissioner of

Labor of the State of WV, Appellants,

and

United Steelworkers of America, AFL-CIO-CLC and Paul Rusen,

Director District 23, United Steelworkers of

America, AFL-CIO-CLC, Third-Party Defendants.

Nos. 81-2231(L), 82-1701 and 82-1729.

United States Court of Appeals, Fourth Circuit

August 3, 1983

Argued Feb. 7, 1983.

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Robert B. King, Charleston, W.Va. (King, Betts & Allen; George G. Guthrie, Spilman, Thomas, Battle & Klostermeyer, Charleston, W.Va., on brief), for appellant.

Leonard B. Knee, Asst. Atty. Gen., Charleston, W.Va. (Dennis M. Abrams, Deputy Atty. Gen., Charleston, W.Va., on brief) and Mary-Win O'Brien, Pittsburgh, Pa., for appellee.

Before ERVIN and CHAPMAN, Circuit Judges and BRYAN, Senior Circuit Judge.

ALBERT V. BRYAN, Senior Circuit Judge:

The West Virginia Manufacturers Association (the Association) urges us to disapprove, on State and Federal grounds, a statute duly enacted by the legislature of the State of West Virginia. We decline to do so, finding no fault in the enactment in any respect.

I

The West Virginia Hazardous Chemical Substances Act, W.Va.Code § 21-3-18 (1981) (the Act), requires "[a]ny employer of ten or more employees using or producing any ... listed hazardous chemical substance ..." to post conspicuously in the work area where the chemical is used a warning notice which gives the name of the chemical and the common symptoms of overexposure. The Act directs the Commissioner of Labor to select the chemical substances he deems hazardous from a list compiled pursuant to Federal law and published at 29 C.F.R. § 1910.1000 (1982). His choice is to be guided by the frequency of use, frequency of exposure or overexposure, the seriousness of the effects of such exposure or overexposure, or other reasons which the Commissioner deems significant. He also is empowered to adopt all necessary rules and regulations. Proposed regulations were put forward for public comment and, after revision and a public hearing, were scheduled to become effective on December 16, 1981.

On November 18, 1981 the Association filed this civil action in the Federal Court for the Southern District of West Virginia seeking declaratory and injunctive relief against the State and Lawrence Barker, her Commissioner of Labor. The complaint sought a declaration that the Act and the regulations promulgated thereunder were unconstitutional and void, it sought too an injunction prohibiting their enforcement. After an evidentiary hearing, the Court entered a temporary restraining order enjoining

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enforcement of the Act and regulations. However, on December 18 the Court dissolved the TRO, and denied all further injunctive relief. The Association noted an appeal (No. 81-2231) and moved for an injunction pending appeal which Judge Hall of this Court granted.

Thereafter, in accordance with and as permitted by Judge Hall's order, the District Court proceeded to consider the remaining aspects of the Association's grievance. On July 1, 1982, the Court upheld the Act save for a provision permitting adoption of future regulatory amendments. 1 It also struck down the administrative regulations on grounds that they had been improperly promulgated under West Virginia law. 2 On July 27, 1982, the Association noted its appeal, (No. 82-1701) and, on August 9, the State filed a cross appeal (No. 82-1729). By order of this Court entered October 1, 1982, the three causes were consolidated. 3

In our Nos. 81-2231 and 82-1701 the Association challenges the validity of the Act on the ground it fails to meet the requirements of West Virginia law and the Federal constitution. On cross appeal, No. 82-1729, the State seeks reversal of those aspects of the District Court's decision that were adverse to it. We now turn to these contentions in more specificity.

II

A. Title defects

Primary among the objections based on State law is the assertion that the statute is unconstitutional because its title does not reveal that violators may be subject to criminal penalties. The questioned title reads: "Hazardous Chemical Substances; notice to employees; reports to commissioner; penalties." Defect is laid to the word "penalties" which the Association deems insufficient to advise that the sanctions are criminal.

The West Virginia Constitution, on which this attack is grounded, provides, in part, that

[n]o act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. But if any object shall be embraced in an act which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed....

W.Va. Const. art. 6, § 30. The Supreme Court of Appeals of West Virginia has declared that the purpose of this section is to prevent concealment of the content of legislation. 4 Consequently, the dispositive question is whether "the title of the act was such that it should have provoked a reading of the act by a person interested in its subject matter." State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886, 892 (1958). West Virginia courts follow a rule of liberal construction when statutes are assailed for title deficiencies, resolving all doubts in favor of the questioned enactment. Chesapeake & Ohio Railroad v. Patton, 9 W.Va. 648 (1876).

Mindful of these principles, we agree with the District Court that the title under scrutiny here plainly advises of the Act's import and purpose. 542 F.Supp. at 1250. The word "penalties" connotes sufficiently that penal sanctions are contemplated and, as a whole, the title will induce any interested party to read the text of the statute.

B. Delegation problems

...

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