Hogan v. City of South Charleston
| Decision Date | 18 December 1979 |
| Docket Number | No. 14275,14275 |
| Citation | 260 S.E.2d 833,164 W.Va. 136 |
| Parties | Herman L. HOGAN, Jr., et al., etc. v. CITY OF SOUTH CHARLESTON, etc., et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. One of the principal purposes of our State municipal law set out in W.Va.Code, 8-1-1, was to provide a degree of uniformity to the type of powers granted to municipalities by the Legislature.
2. In recodifying the State municipal law in 1969 in order to achieve uniformity in the powers granted to municipalities, the Legislature intended that the provisions of the State municipal law should have primacy over conflicting provisions in a municipal charter. W.Va.Code, 8-1-6.
3. W.Va.Code, 8-21-7, authorizes the board of park and recreation commissioners of a city to hire all employees of its park and recreation system, including its chief administrative officer.
Charnock & White, John N. Charnock, Jr., Charleston, for appellants.
Larry G. Kopelman, South Charleston, for appellees.
Herman L. Hogan, Jr., and other members of the South Charleston Board of Park and Recreation Commissioners (hereinafter Board) seek a determination of whether the right to appoint the Recreation Director of the City of South Charleston lies with its Mayor or with the Board. The Board claims the right pursuant to W.Va.Code, 8-21-7. The Mayor asserts the right to appoint under the provisions of the South Charleston City Charter which became effective on July 1, 1963.
The Board was created by means of a July 1, 1973, City ordinance pursuant to W.Va.Code, 8-21-1, Et seq., which provides for the establishment of boards of park and recreation commissioners. At that time, the City Recreation Director was Robert T. Anderson, who was appointed to the position by a former mayor and who was retained by the Board after its creation.
It appears that Mr. Anderson functioned as the full-time chief administrative employee of the Board. On July 6, 1977, he tendered his resignation to the Board, effective as of July 22, 1977. At a special meeting of the Board held on July 11, 1977, the Assistant Recreation Director, Robert Goff, was appointed by the Board as the Acting Recreation Director.
On July 21, 1977, Mr. Anderson by letter resigned his position as of that date, and on the same day the Mayor by letter appointed David Pentz as Recreation Director. Mr. Pentz accepted the appointment. In response to the Mayor's action, the South Charleston City Council passed a resolution on July 21, 1977, declaring that in creating the Board, it was their intention that it have exclusive control over the City's park and recreation system. A more resolute position by the Council followed, when by an ordinance adopted August 4, 1977, it sought to abolish the salary of the Recreation Director.
When this impasse between the City's executive, legislative and administrative branches had been reached, the Board instituted this declaratory judgment action. The Circuit Court of Kanawha County held that the charter provisions prevailed and that the right to make the appointment was therefore vested in the Mayor.
In 1969 the Legislature made an extensive revision of Chapter 8 of the West Virginia Code. One of the principal purposes of our State municipal law set out in W.Va.Code, 8-1-1, 1 was to provide a degree of uniformity to the type of powers granted to municipalities by the Legislature. Prior to 1969, the powers of a given municipal corporation were embodied in several scattered and sometimes conflicting sources, Viz., special legislative charters, the general municipal statutes found in former Chapter 8 of the W.Va.Code and powers granted under the home rule provisions of former Chapter 8A of the Code. 2
The new State municipal law did not abolish existing municipal charters, W.Va.Code, 8-1-5, but did provide a set of specific interpretive guidelines to resolve conflicts or dissimilarities between the provisions of the new municipal law and existing charter provisions, W.Va.Code, 8-1-6. This latter Code section makes clear that where there is an ambiguity, or possible conflict between the State municipal law and a charter provision, the State municipal law controls. 3
It is significant that prior to the adoption of the 1969 recodification of our State municipal law, a provision of W.Va.Code, 8-1-2 (1931), conferred the right on municipalities having special charters to adopt the general powers contained in Chapter 8 of the Code, but, by an express proviso in this Code section, a provision of the State municipal law which was inconsistent with a charter provision would not be controlling unless the municipality had adopted that statutory provision. 4 Before this proviso was written into our law in 1931, it appears that the Court was of the view that a municipality could not exercise powers conferred by the general municipal law which were inconsistent with a charter provision. City of St. Marys v. Locke, 73 W.Va. 30, 80 S.E. 841 (1913).
From the foregoing, it is apparent that in recodifying the State municipal law in 1969 in order to achieve uniformity in the powers granted to municipalities, the Legislature intended that the provisions of the State municipal law should have primacy over conflicting provisions in a municipal charter. W.Va.Code, 8-1-6.
Here, there can be no dispute that prior to July 1, 1973, the charter provision controlled and the Mayor had the right to appoint the Recreation Director. Once the Board was created, however, it obtained all of the powers provided by W.Va.Code, 8-21-1, Et seq., among which are those set out in W.Va.Code, 8-21-7:
"Any board operating under the provisions of this article shall have complete and exclusive control and management of all of the properties which shall be operated in connection with the public park and recreation system for the city, and shall have power to employ such persons as, in its opinion, may be necessary for the establishment, construction, improvement, extension, development, maintenance or operation of the property under its control, at such wages or salaries as it shall deem proper, and shall have full control of all employees."
We cannot conceive a clearer expression of legislative intent to place in such a board control of the entire administration of the park and recreation system, once a city elects to operate its park and recreation system under W.Va.Code, 8-21-1, Et seq. 5
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State ex rel. Hill v. Smith
...are legislative creatures and their powers derive directly and solely from those granted to them by state law. Hogan v. South Charleston, 164 W.Va. 136, 260 S.E.2d 833 (1979); Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581, 584 (1979). Accord, 56 Am.Jur.2d Municipal Corporations § 194; 62 C.J......
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Peyton v. City Council of City of Lewisburg
...statute. This language survived the extensive statutory municipal reorganization made in 1969. 14 See Hogan v. City of South Charleston, 164 W.Va. 136, 260 S.E.2d 833 (1979). Perhaps the legislature, like the Court in the Wiseman case, had difficulty understanding the complexity of municipa......