Board of Ed. of Wyoming County v. Board of Public Works

• Decision Date: 23 June 1959
• Docket Number: No. CC848,CC848
• Citation: 144 W.Va. 593,109 S.E.2d 552
• Court: West Virginia Supreme Court
• Parties: BOARD OF EDUCATION OF WYOMING COUNTY et al. v. BOARD OF PUBLIC WORKS et al.

Page 552

109 S.E.2d 552

144 W.Va. 593

BOARD OF EDUCATION OF WYOMING COUNTY et al. v. BOARD OF PUBLIC WORKS et al.

No. CC848.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1959.

Decided June 23, 1959.

Syllabus by the Court.

1. The validity of an order of The Board of Public Works reducing the expenditure of funds appropriated and allocated to a county board of education and the constitutionality of the statute upon which such order is based may be determined in a declaratory judgment proceeding.

2. The appropriation of public money is an exclusively legislative function but the expenditure of the money appropriated is an administrative function which, except as to money appropriated for the legislature and the judiciary, is to be exercised by the executive department of the government.

3. Any doubt as to the constitutionality of an act of the Legislature will always be resolved in favor of the validity of the statute.

4. Section 35, Article 5, Chapter 5, Code, 1931, as amended, does not attempt to authorize The Board of Public Works to instruct the director of the budget to reduce or alter the amount of an appropriation but to limit the expenditures from the appropriation to the revenue available for that purpose.

5. Section 35, Article 5, Chapter 5, Code, 1931, as amended, is not a delegation of legislative power to the executive department of the government, in violation of Article V, Section 1 of the Constitution of this State, is not violative of any constitutional provision, and is in all respects a valid legislative enactment.

6. The revenue derived from the consumers sales tax and the use tax is a part of the general revenue fund and as such is subject to the provisions of Section 35, Article 5, Chapter 5, Code, 1931, as amended.

Lively, Light & Francis, J. Henry Francis, Jr., Charleston, for plaintiffs.

W. W. Barron, Atty. Gen., Giles D. H. Snyder, Asst. Atty. Gen., for defendants.

HAYMOND, Judge.

This is a declaratory judgment proceeding instituted in the Circuit Court of Kanawha County in January 1959, upon due notice, in which the plaintiffs, The Board of Education of the County of Wyoming, a corporation, The Board of Education of the County of Wood, a corporation, The Board of Education of the County of Hardy, a corporation, and The Board of Education of the County of McDowell, a corporation, seek a declaration of the relative rights and obligations of the plaintiffs and the defendants, The Board of Public Works, a corporation, Cecil H. Underwood, Governor Joe F. Burdette, Secretary of State, Edgar B. Sims, Auditor, R. Virgil Rorhbaugh, State Superintendent of Free Schools, Orel J. Skeen, State Treasurer, W. W. Barron, Attorney General, and John T. Johnson, Commissioner of Agriculture, ex officio members of The Board of Public Works, the State Board of School Finance, and R. Virgil Rorhbaugh, State Superintendent of Free Schools, John A. Field, Jr., State Tax Commissioner, and George B. Vieweg, Jr., Commissioner of Finance and Administration, ex-officio members of the State Board of School Finance, relating to and arising from an other of The Board of Public Works, dated December 9, 1958, which required all accounts receiving appropriations from general revenue for the fiscal year 1958-1959 to be reduced to the extent of five per cent and caused the reduction of five per cent to be placed in a reserve account, pursuant to the provisions of Section 35, Article 5, Chapter 5, Code, 1931, as amended.

The petition of the plaintiffs contains, among other averments, the following material allegations which upon demurrer are to be regarded as true.

The Legislature of West Virginia, at its regular 1958 session, appropriated the sum of $52,005,220.00 for state aid for schools for the fiscal year beginning July 1, 1958 and ending June 30, 1959 to be distributed as provided in Account No. 295, Chapter 1, Acts of the Legislature, 1958, Regular Session. Pursuant to Article VI, Section 51 of the Constitution of West Virginia, the foregoing appropriation was based upon estimates of revenue for the fiscal year made by The Board of Public Works and set forth in the budget prepared by it and submitted to the Legislature and also included in the budget document for the fiscal year. Subsequently the State Board of School Finance, pursuant to Chapter 18, Article 9A, Code, 1931, as amended, determined the total school foundation program for each county in the State and allocated and certified to each county its share of the total funds available for state aid for schools during that fiscal year. The amount allocated and certified to the plaintiff The Board of Education of the County of Wyoming was $1,515,588.00, to the plaintiff The Board of Education of the County of Wood was $1,671,653.00, to the plaintiff The Board of Education of the County of Hardy was $398,475.00, and to the plaintiff The Board of Education of the County of McDowell was $3,235,741.00. After the allocation of the foregoing amounts each plaintiff prepared and filed with the State Board of School Finance a schedule of payment of the state aid allocated to it by the State Board of School Finance. Each schedule was approved by the State Board of School Finance and payment of state school aid was made by it to each of the plaintiffs in accordance with the approved schedules until the issuance of the order of The Board of Public Works on December 9, 1958, requiring a reduction of five per cent in allaccounts receiving appropriations from general revenue for the fiscal year.

On December 8, 1958, the Governor of this State informed the members of The Board of Public Works that receipts for the general revenue fund for the first five months of the fiscal year were $3,500,000.00 less than the estimated needs for appropriations from that fund and recommended that the board invoke the provisions of Section 35, Article 5, Chapter 5, Code, 1931, as amended, and reduce equally and pro rata all appropriations from general revenue in the amount of five per cent; and pursuant to that recommendation The Board of Public Works by order adopted December 9, 1958, required that all accounts receiving appropriations from general revenue for the fiscal year be reduced to the extent of five per cent and that the reduction of five per cent be placed in a reserve account.

Pursuant to the order of The Board of Public Works the State Board of School Finance established a reserve of five per cent of the general revenue fund in the account of state aid for schools in the sum of $2,591,511.00 and notified each county board of education in the State, including the plaintiffs, that in the absence of any later adjustment the amount of state aid for schools to be distributed to each county during the remainder of the fiscal year would be less than the amount previously allocated and certified to each county and fixed the amount by which each allocation would be reduced. The reduction for the plaintiff The Board of Education of the County of Wyoming was $67,929.00, for the plaintiff The Board of Education of the County of Wood was $74,925.00, for the plaintiff The Board of Education of the County of Hardy was $17,860.00, and for the plaintiff The Board of Education of the County of McDowell was $145,027.00. After the original allocations of state aid for schools were certified to the plaintiffs by the State Board of School Finance each plaintiff determined and fixed the school terms for its county, entered into binding contracts for teachers and other personnel, budgeted supplies, equipment, transportation and other necessities, and fixed the curriculum and the activities to be provided in accordance with the original allocation.

Since notified of the orders of The Board of Public Works and the State Board of School Finance requiring reduction in the allocations of state aid for schools each plaintiff has reviewed its budget in an effort to set up the reserve required by the State Board of School Finance and has found that such reduction necessarily requires a shorter term of school than that previously fixed, or a decrease in the salaries of teachers provided by contract, or in the teaching force and other personnel, or elimination of essential parts of the prescribed curriculum and activities, or loss of irreplacable teaching personnel, or possible loss of accreditation, and will result in uncertainty and confusion and in irreparable harm and injury to the administration, control and management of all the schools in each county.

The petition further alleges that Section 35, Article 5, Chapter 5, Code, 1931, as amended, and the order of The Board of Public Works based upon that statute, are unconstitutional and void particularly to the extent that they apply to appropriations by the Legislature for state aid for schools; that the statute is an unconstitutional delegation of legislative power in violation of Article V, Section 1, Article VI, Section 51, and Article XII, Section 5 of the Constitution of West Virginia; and that if the provisions of the statute are valid they do not extend or apply to appropriations made by the Legislature for state aid for schools. The petition further alleges that the plaintiffs have urged and requested the defendants to rescind or modify the order of The Board of Public Works and their action taken pursuant to it insofar as they apply to appropriations made by the Legislature for state aid for schools and the allocation of such appropriations to each plaintiff but that the defendants have failed and refused so to do.

The prayer of the petition is that it be filed and the defendants be required to answer it; that the Court determine the question of the validity and effect of Section 35, Article 5, Chapter 5, Code, 1931, as amended, and the rights of the parties under that statute; that the Court hold that the provisions of the statute and the order of The Board of Public Works do not apply to appropriations...