Bd. Of Aeronautics v. Sims, 9903

Citation129 W.Va. 694
Decision Date11 February 1947
Docket NumberNo. 9903,9903
CourtSupreme Court of West Virginia
PartiesBoard of Aeronautics, etc., et al. v. Edgar B. Sims, Auditor of State of West Virginia
1. States

The advancement of aviation is a public purpose, and the control and regulation thereof, including airports, landing fields and other facilities, are vested in the Legislature, under the police power of the State.

2. States

The Legislature is vested with power to regulate and control aviation, and the airports, landing fields and other necessary facilities connected therewith; and may delegate its powers in respect thereto to the county courts and other governing bodies of the several counties of the State, and to municipalities, without surrendering its right to aid such counties and municipalities, in respect thereto by the appropriation of public funds therefor, except that it may not extend the credit of the State to, or assume or become responsible for the debts or liabilities of such counties or municipalities contracted in connection therewith.

3. Statutes

Section 2A of Article 2A of Chapter 14, Acts of the Legislature, 1943, is constitutional.

4. Mandamus

"A peremptory writ of mandamus will issue to require the discharge by a public official of a non-discretionary duty." Glover v. Sims, 121 W. Va. 407, Syllabus Point 4.

Original mandamus proceeding by the state, on the relation of West Virginia Board of Aeronautics, etc., and others, against Edgar B. Sims, Auditor of State of West Virginia, to compel the respondent to honor a requisition made by the Board of Aeronautics, by H. H. Stark, Di- rector and Approving Officer, for the sum of $11,500 apportioned, in varying amounts, among designated counties and municipalities throughout the state and to issue warrants therefor.

Writ awarded.

Dale G. Casto, J. Philip Clifford and H. William Lar- gent, for relators.

Thomas W. Moses and Charles M. Love, Jr., for respondent.

Fox, President:

The Legislature, at its 1945 Session, appropriated the sum of $37,500.00 for each of the fiscal years beginning July 1, 1945, and July 1, 1946, "for operation of the Board of Aeronautics and for State aid to county and municipal airports". The appropriation for each of said years was $9,000.00 for personal services; $3,500.00 for current expenses; $5,000.00 for equipment; and $20,-000.00 for airport development. On July 11, 1946, the Board of Aeronautics, by H. H. Stark, Director and Approving Officer, made a requisition on the State Auditor for the sum of $11,500.00, apportioned, in varying amounts, among designated counties and municipalities throughout the State, which requisition contains this statement: "Funds so allocated will be used in the furtherance and maintenance of high standards of safety and operation for the protection of the public, airmen and aircraft". The respondent, the State Auditor, refused to honor such requisitions, and to issue State warrants therefor, giving as his reason that "to distribute this money as proposed would be in direct violation of that constitutional provision which prohibits the extension of credit of the State to any county, municipality, etc. I recall that a similar requisition was rejected a year or more ago and I shall refuse to distribute State money according to any similar requisition". The basis of the Auditor's refusal to honor such requisition is Section 6 of Article X of the Constitution, which reads:

"The credit of the State shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the State ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person; nor shall the State ever hereafter become a joint owner, or stockholder in any company or association in this State or elsewhere, formed for any purpose whatever."

Thereupon the relators filed their petition in this Court against the Auditor, seeking, by writ of mandamus, to compel him to honor the requisition aforesaid. We awarded a rule against the Auditor, returnable on the first day of the present term, requiring him to show cause why the prayer of the relators' petition should not be granted. The respondent tendered, and there has been filed, his demurrer to the petition of the relators, relying on Section 6, Article X of the Constitution of this State, and the due process clauses of the State and Federal Constitutions.

As a background for the decision of the questions raised by the petition and demurrer aforesaid, it may be stated that the attention of the Legislature was first directed to the regulation of aviation in 1929, and Chapter 61, Acts of the Legislature, 1929, authorized counties, cities, towns and villages to establish airports and landing fields; authorized one or more counties, cities, towns and villages to join with other such bodies to establish joint airports and landing fields; and further authorized the laying of levies for the purpose of establishing, leasing, maintaining, constructing and operating airports and landing fields, and provided for the general supervision and control of aviation in this State. This statute was amended by Chapter 3, Acts of the Legislature, 1941, to authorize any municipal corporation to establish, lease, construct, maintain and operate an airport or landing field within ten miles of the corporate limits of such municipality, where such corporate limits were not more than ten miles distant from the boundaries of this State, and provided that the property acquired for such pur- poses should be exempt from taxation in the manner provided by Section 9, Article 3, Chapter 11 of the Code. It was further amended, in respects not important in this litigation, by Chapter 6, Acts of the Legislature, 1945.

By Chapter 4, Acts of the Legislature, 1931, a Board of Aeronautics was established, with general authority in such board to supervise and control commercial and public airports, landing fields, and schools of aviation; to provide for the enforcement of the rules and regulations adopted by the board governing the regulation of airports, aircraft and aviation within the State; to provide for the licensing of airports and schools of aviation; and to provide funds to carry out the provisions of the act.

This act was amended by Chapter 72, Acts of the Legislature, 1935, as to Sections 1 and 5, and by Chapter 14, Acts of the Legislature, 1943, by adding thereto Section 2A, and which now appears as Section 2A, Article 2A, Chapter 29, Michie's Code, 1943, and reads as follows:

"Such board, out of any appropriations made to it by the Legislature or out of any funds at its disposal, may make funds available by grant or otherwise to counties and municipalities for the construction, improvement or maintenance of airports or landing fields owned or operated by such counties or municipalities, and the removal or correction of hazards dangerous to flying to meet the requirements of the several agencies of the United States government in aid of the prosecution of World War II. Acceptance of any moneys so made available to any county or municipality shall constitute the consent by the recipient that such airport or landing field may be used by the United States government, the state or any of their respective agencies, including the state board of aeronautics and the national guard of West Virginia for state purposes related or incidental to aeronautics."

It is this section that is challenged in this proceeding as unconstitutional. It is contended by the respondent that the effect of such section is to authorize the Board of Aeronautics to extend the credit of the State to the various counties and municipalities of the State which have established airports, and, in effect, amounts to an assumption by the State of the debts or liabilities of such counties or municipalities in violation of Section 6 of Article X of our Constitution, quoted above; that it comes within the inhibition of Section 10, Article III of the Constitution of this State, which provides that "No person shall be deprived of life, liberty, or property, without due process of law, and the judgment of his peers."; and the provision of Section 1, Article 14 of the Federal Constitution, which, among other things, provides: "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its...

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17 cases
  • Allen v. State, Human Rights Com'n, 16303
    • United States
    • Supreme Court of West Virginia
    • December 6, 1984
    ......pt. 4, Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612 (1939). .         4. "The word 'shall' in the absence of ...Sims, 135 W.Va. 257, 63 S.E.2d 524 (1951); Syl. pt. 4, State ex rel. Board of Aeronautics v. Sims, 129 W.Va. 694, 41 S.E.2d 506 (1947); Syl. pt. 1, Draper v. Anderson, 102 W.Va. 633, 135 ......
  • State ex rel. C & D Equipment Co. v. Gainer, 12920
    • United States
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    • April 14, 1970
    ...... Article X, § 3 of the Constitution of West Virginia; Slack v. Jacob, 8 W.Va. 612; Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612; State ex rel. Vincent v. Gainer, 151 W.Va. 1002, 158 S.E.2d 145. In ...Sims, 135 W.Va. 257, 63 S.E.2d 524; State ex rel. The West Virginia Board of Aeronautics v. Sims, 129 W.Va. 694, 41 S.E.2d 506; Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612. In all those ......
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    • May 28, 1957
    ......Board of Governors of West Virginia University v. Sims, 140 W.Va. 64, 82 S.E.2d 321; State ex rel. West Virginia Commission on Interstate Cooperation v. ims, 135 W.Va. 257, 63 S.E.2d 524; State ex rel. The West Virginia Board of Aeronautics v. Sims, 129 W.Va. 694, 41 S.E.2d 506; Glover v. Sims, 121 W.Va. 407, 3 S.E.2d 612. ......
  • Van Gilder v. City of Morgantown, CC746
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    • February 4, 1952
    ...... operated by a municipality under the control and supervision of The West Virginia State Aeronautics Commission as provided by Section 3 of Chapter 12 of the Acts of 1947 is the performance of a ... State ex rel. Board of Aeronautics v. Sims, 129 W.Va. 694, 41 S.E.2d 506. .         It appearing that airports are operated under the ......
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