City of Charleston v. Southeastern Const. Co., 769

• Decision Date: 17 April 1951
• Docket Number: No. 769,769
• Citation: 134 W.Va. 666,64 S.E.2d 676
• Parties: CITY OF CHARLESTON, v. SOUTHEASTERN CONST. CO. et al. C. C.
• Court: West Virginia Supreme Court

Page 676

64 S.E.2d 676

134 W.Va. 666

CITY OF CHARLESTON, v. SOUTHEASTERN CONST. CO. et al.

C. C. No. 769.

Supreme Court of Appeals of West Virginia.

Submitted Aug. 3, 1950.

Decided Aug. 7, 1950.

Opinions Filed April 17, 1951.

Syllabus by the Court.

1. The State Office Building Commission is a State agency, and, as such, is an arm of the State and under Section 35, Article VI of the Constitution of this State is immune from suit.

2. A building constructed by The State Office Building Commission, created by Chapter 43, Acts of the Legislature, 1939, on property purchased under the general appropriation Act, contained in Chapter 9, Acts of the Legislature, 1949, is a public building, and is not subject to the zoning ordinance or the building code of The City of Charleston.

3. The Legislature does not possess power, under Section 1, Article VI of the Constitution of this State, which provides that 'The legislative power shall be vested in a Senate and House of Delegates. * * *', to bind future Legislatures and to grant or delegate the right to exercise in perpetuity the police power of the State.

4. Though Code, 2-2-10, provides that 'The word 'person' and ' whoever' shall include corporations, societies, associations, and partnerships, if not restricted by the context', the word 'person' in a statute or ordinance, in the absence of an express provision contrariwise, does not include a State agency or a public corporation.

John C. Vance, John J. D. Preston, Charleston, for plaintiff.

William C. Marland, Atty. Gen., Eston B. Stephenson, Asst. Atty. Gen., Londo H. Brown, Asst. Atty. Gen., for defendants.

RILEY, Judge.

The City of Charleston, a municipal corporation, brought this suit in equity in the Circuit Court of Kanawha County, against Southeastern Construction Company, a corporation; The State Office Building Commission of West Virginia (sometimes hereinafter referred to as the 'building commission'; Honorable Okey L. Patteson, Governor; Honorable William C. Marland, Attorney General; Honorable D. L. Gainer, Director of the Budget; individually and as members of The State Office Building Commission of West Virginia; and Honorable Okey L. Patteson and Honorable D. L. Gainer, Secretary of The State Office Building Commission of West Virginia, for an injunction restraining the defendants from constructing a state office building upon premises purchased by the State of West Virginia from revenues appropriated by the Legislature for The State Office Building Commission, which premises are situate at the southeast corner of California Avenue and Washington Street in the City of Charleston. The basis of the injunctive relief is that the contemplated construction is in violation of the provisions of the Official Building Code of The City of Charleston of 1945, and the Building Zone Ordinance of the City, adopted on May 2, 1939, by the Municipal Planning Commission, and approved by ordinance of July 10, 1939. The circuit court upon joint motion of the parties, certified to this Court its rulings in overruling the demurrer to plaintiff's bill of complaint.

An order having been heretofore entered in this case, this opinion is written for the purpose of stating the conclusions which prompted the Court to enter the order.

The bill of complaint alleges that powers and duties of the plaintiff, The City of Charleston, were conferred and imposed by special charter, Acts of the Legislature of West Virginia, 1915, Municipal Charters, Chapter 1; Acts of the Legislature, 1919, Municipal Charters, Chapter 9; Acts of the Legislature, 1921, Municipal Charters, Chapter 4; Acts of the Legislature, 1923, Chapter 82; Acts of the Legislature, 1925, Municipal Charters, Chapter 12; Acts of the Legislature, 1927, Municipal Charters, Chapter 8; Acts of the Legislature, 1929, Municipal Charters, Chapter 4; Acts of the Legislature, 1933, Regular Session, Chapter 117; and by general municipal law of the State, Code, West Virginia, 8-5 and 8A-4-19 and 24; and then proceeds to set out verbatim the following excerpts from the foregoing statutory enactments, dealing with powers and duties:

'* * * to provide for and regulate the safe construction, inspection and repairs of all public and private buildings, * * * to regulate the height, construction and inspection of all new buildings hereafter erected, and the alteration and repair of any buildings already erected or hereafter erected in said city, and to require permits to be obtained for such buildings and structures, and plans and specifications thereof to be first submitted to the building inspector;' (Acts of the Legislature, 1929, Municipal Charters, Chapter 4, Section 7).

'For the purpose of promoting health, safety, morals, or the general welfare of the city and community, * * * to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residents or other purposes. * * * [With a specific exemption as to buildings or structures used by a public service corporation].' (Section 102, Acts of the Legislature, 1929, Municipal Charters, Chapter 4).

'* * * the council may divide the city into districts of such number, shape and area as may be deemed best suited to carry out the purpose of this and the four succeeding sections, and within such districts it [council] may regulate and restrict the erection, construction, alteration, repair or use of buildings, structures, or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.' (Section 102-a, Acts of the Legislature, 1927, Municipal Charters, Chapter 8.)

'Such regulations shall be made in accordance with a comprehensive plan, and designed to lesson congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; or to facilitate the adequate provision of transportation, water, sewerage, schools, parks, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city.' (Section 102-b, Acts of the Legislature, 1927, Municipal Charters, Chapter 8).

The bill of complaint alleges that Code, 8-5, and specifically Sections 1, 2, and 3 thereof, grants to municipalities the power to zone for the health, safety, morals and general welfare of the respective communities; and that Acts of the Legislature, 1937, by Chapter 56, 8A-4-19, 24, empowers cities to 'Regulate the erection, construction, repair and alteration of structures of every kind within the city'; and further provides that 'A city may provide for city planning and zoning in accordance with * * * [Code, 8-5]'.

It is further alleged in the bill of complaint that, pursuant to the foregoing statutory authority, The City of Charleston adopted the building zone ordinance of July 10, 1939, and by ordinance passed on March 9, 1936, filed as Exhibits Nos. 1 and 2, respectively. From Exhibit No. 1, it appears that the parcel of land in question lies in a zoned district, designated as 'Residence 'C' District', the maximum height of buildings within which district is not to exceed four stories or fifty feet, except in case of public or semi-public buildings the maximum height shall not exceed seventy-five feet or more than six stories. Sections 36, 37 and 38 provide the maximum width for front, side and rear yards. The building code (Exhibit No. 2) provides that 'no person shall erect or construct any building or structure whatever, * * * without first obtaining a building permit from the [City] Building Inspector', after filing written application therefor.

The building commission by its secretary submitted the plans and specifications for the proposed building to the building inspector of the city of Charleston, and made application for a building permit, pursuant to the building code, which application was refused. Nevertheless, the State Office Building Commission, by letter dated May 3, 1950, notified the city of its intention to award the contract to the successful bidder, Southeastern Construction Company; and on May 19, 1950, the building inspector served a 'Stop Order' in respect to the work preparatory to the construction of the building. This suit then followed.

From the bill of complaint it appears that the lot in question fronts one hundred twenty feet on California Avenue, with a depth of one hundred forty-four feet on Washington Street and is bounded on the east by a fourteen-foot alley. The proposed building will be set back twenty feet from the property line of California Avenue, a one-foot setback on the alley, and no setback from the property line of Washington Street.

So if a building permit is required of the building commission and the zoning ordinance applies, the proposed building would be in violation of both the building code and the zoning ordinance.

In the appraisement of the foregoing question, it becomes necessary to consider the provisions of Chapter 43, Acts of the Legislature, 1939, creating and defining the powers and duties of The State Office Building Commission, whereby it is empowered: 'To sue and be sued, plead and be impleaded' (Sec. 3, Subsection 1), and 'To construct a building or buildings on real property, which it may acquire, or which may be owned by the state of West Virginia, in the city of Charleston, as convenient as may be to the capitol...