Kanawha County Public Library v. County Court of Kanawha County

• Decision Date: 25 March 1958
• Docket Number: No. 10941,10941
• Citation: 143 W.Va. 385,102 S.E.2d 712
• Parties: . Supreme Court of Appeals of West Virginia
• Court: West Virginia Supreme Court

Page 712

102 S.E.2d 712

143 W.Va. 385

KANAWHA COUNTY PUBLIC LIBRARY v. The COUNTY COURT OF KANAWHA COUNTY.

No. 10941.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1958.

Decided March 25, 1958.

Syllabus by the Court

Chapter 178, Acts of the Legislature, Regular Session, 1957, establishing the 'Kanawha County Public Library' and requiring the County Court of Kanawha County to contribute to the support thereof, is not invalid as in contravention of the provisions of Section 39, Article VI, or Section 24, Article VIII of the Constitution of this State.

Donald O. Blagg, A. G. Stone, Charleston, for relator.

D. Boone Dawson, Charleston, for respondent.

BROWNING, Judge.

Petitioner, Kanawha County Public Library, a corporation, seeks a writ of mandamus requiring respondent, the County Court of Kanawha County, to appropriate and pay over to the Board of Education of the County of Kanawha, for the support and use of petitioner, the sum of $83,800 as and when such amount shall be collected, and to lay a levy and make appropriation and payment for the same purpose in each succeeding fiscal year at the rates from time to time requested by petitioner.

Petitioner alleges its creation by Chapter 178, Acts of the Legislature, Regular Session, 1957, which provides:

Section 1: 'There is hereby created a public library, which shall be known as the 'Kanawha County Public Library,' which shall be supported by the board of education of the county of Kanawha, the county court of Kanawha county and the city of Charleston, as a joint endeavor of the three governing authorities in the manner hereafter prescribed.'

Section 2: 'There shall be a board of eighteen directors * * * [All appointed by Board of Education and removable by it.] The board of directors shall have all the powers necessary, convenient and advisable for the proper operation, equipment and management of the said library; * * *.'

Section 3: (Library Board to be a Corporation.)

Section 4: (Title to property now devoted to library purposes vested in Kanawha County Public Library.)

Section 5: 'In order to provide for the support, maintenance and operation of the public library hereby created, and any and all branches thereof, the supporting governing authorities shall, upon written request by its board of directors, levy annually as follows within the respective taxing districts of the governing authorities * * * amounts not exceeding * * *. Each year the board of directors shall request each of the three governing authorities to levy the same amount. * * *'

Section 6: 'All money collected or appropriated by the three governing authorities for library purposes shall be deposited in a special account of the board of education of the county of Kanawha, and shall be disbursed by it, as directed by the board of directors * * *.'

Section 7: (All employees of the public library deemed employees of board of education for certain purposes.)

Section 8: (Effect of future amendment of general laws.)

Section 9: (Severability provision.)

Petitioner then alleges that: Pursuant to the provisions of the above statute, it requested respondent, as well as the Board of Education of the County of Kanawha and the City of Charleston, to lay a levy for the current fiscal year within the maximum permitted; respondent included such item in its estimate, conditioned upon the above statute being held constitutional, otherwise the amount to be appropriated for other purposes, and duly and legally laid its levies, which the Sheriff of Kanawha County is now engaged in collecting.

Petitioner then avers that respondent has heretofore refused and still refuses to appropriate any part of the funds arising from the levy, or to pay the same to the Board of Education of the County of Kanawha for the use and benefit of petitioner as required by the statute and will continue to do so unless required by mandate of this Court, and prays for a writ of mandamus as hereinabove stated.

Pursuant to a rule to show cause why the writ of mandamus as prayed for should not be awarded against it, respondent appeared and demurred on the grounds that: (1) Chapter 178 is unconstitutional because in conflict with the provisions of Article VI, Section 39 of the West Virginia Constitution; (2) Chapter 178 is void because in conflict with Article VIII, Section 24, of the West Virginia Constitution; (3) Because it requires the county court to lay a levy, collect taxes and turn the same over to a library board created by the board of education, and completely under its supervision and control; (4) Because it takes from the county court funds allocated to it for its mandatory purposes and delegates them to an agency of the school board for expenditures for purposes for which the county court is not required to provide by law; and (5) Because it takes money provided for local government services and uses it for nongovernment service, to wit: a public library.

The respondent also answered, admitting the truth of the allegations of the petition of which it had knowledge, but further charging that the Board of Education of the County of Kanawha is the real plaintiff in this action, and that the sole purpose for which the act was passed was to compel respondent and the City of Charleston to pay out of their own funds to support an institution controlled, managed and operated by the board of education.

The constitutional provisions with which the act is alleged to conflict are as follows:

Article VI, Section 39: 'The Legislature shall not pass local or special laws in any of the following enumerated cases; that is to say, for

'Granting divorces;

'Laying out, opening, altering and working roads or highways;

'Vacating roads, town plats, streets, alleys and public grounds;

'Locating, or changing county seats;

'Regulating or changing county or district affairs;

'Providing for the sale of church property, or property held for charitable uses;

'Regulating the practice in courts of justice;

'Incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population of less than two thousand;

'Summoning or impaneling grand or petit juries;

'The opening or conducting of any election, or designating the place of voting;

'The sale and mortgage of real estate belonging to minors, or others under disability;

'Chartering, licensing, or establishing ferries or toll bridges;

'Remitting fines, penalties or forfeitures;

'Changing the law of descent;

'Regulating the rate of interest;

'Authorizing deeds to be made for and sold for taxes;

'Releasing taxes;

'Releasing title to forfeited lands.

'The Legislature shall provide, by general laws for the foregoing and all other cases for which provision can be so made; and in no case shall a special act be passed, where a general law would be proper, and can be made applicable to the case, nor in any other case in which the courts have jurisdiction, and are competent to give the relief asked for.'

Article VIII, Section 24: 'The county courts, through their clerks, shall have the custody of all deeds and other papers presented for record in their counties, and the same shall be preserved therein, or otherwise disposed of, as now is, or may be prescribed by law. They shall have jurisdiction in all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators, and the settlement of their accounts, and in all matters relating to apprentices. They shall also, under such regulations as may be prescribed by law, have the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, bridges, public landings, ferries and mills, with authority to lay and disburse the county levies. * * *. They shall, in all cases of contest, judge of the election, qualification and returns of their own members, and of all county and district officers, subject to such regulations, by appeal or otherwise, as may be prescribed by law. Such courts may exercise such other powers and perform such other duties, not of a judicial nature, as may be prescribed by law. * * *.' (Italics supplied.)

That this legislation is local in its nature cannot be challenged. Its provisions are applicable to one institution, a public library located in the City of Charleston, Kanawha County. That alone is not sufficient to make it invalid. This Court cannot concern itself with the wisdom of this legislation, but only with the question of whether the Legislature had the authority under the Constitution of this State to pass such an act. Section 2 of Article III of the Constitution of this State provides that: 'All power is vested in, and consequently derived from, the people. Magistrates are their trustees and servants, and at all times amenable to them.' Since Ex Parte Stratton, 1 W.Va. 305, the position that this section vests in the Legislature of this State almost plenary powers on every subject, not foreclosed by some other provision of the Constitution, has not been questioned. The powers of the Legislature of this State are not to be confused with those of the Congress of the United States. The Federal Constitution is a grant of power, while the Constitution of this State is a restriction of power. While we look to the Federal Constitution to see what Congress may do, we look to our Constitution to see what the Legislature may not do. In 1 Cooley's Constitutional Limitations, 8th Edition, Page 346, is this statement: '* * * The judiciary can only arrest the execution of a statute when it conflicts with the Constitution. It cannot run a race of opinions upon points of right, reason, and expediency with the law-making powers; * * *.' Although no such power is expressly granted by either the Federal or the West Virginia Constitution, the principle was long ago established that the determination of whether a legislative act was in...