Mountaineer Disposal Service, Inc. v. Dyer
| Decision Date | 19 June 1973 |
| Docket Number | No. 13278,13278 |
| Citation | 197 S.E.2d 111,156 W.Va. 766 |
| Court | West Virginia Supreme Court |
| Parties | MOUNTAINEER DISPOSAL SERVICE, INC. v. N. H. DYER, State Director of Health. |
Syllabus by the Court
1. The operation of any business affecting the public health is subject to regulation through the legitimate exercise of police powers by the State.
2. The Legislature may, in the exercise of the police powers, enact laws for the protection of property and the promotion of the public health of a community, and these powers may be lawfully delegated to an administrative agency to see to their faithful execution.
3. Administrative agencies and their executive officers are creatures of statute and delegates of the Legislature. Their power is dependent upon statutes, so that they must find within the statute warrant for the exercise of any authority which they claim. They have no general or common-law powers but only such as have been conferred upon them by law expressly or by implication.
4. The health director's discretion under Code, 1931, 16--1--9, as amended, to regulate the operation of sanitary landfills operates prospectively, that is, he has the right to control, suspend or terminate non-complying landfill operations conducted subsequent to the approval of the permit. The director has no right to prevent the commencement of business by an otherwise qualifying applicant based upon the past experience of the health department with an employee of the applicant.
5. Where the duty of the health director to issue an approval is so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of its performance, such duty is ministerial, and a writ of mandamus is proper to compel its performance.
6. 'Mandamus will lie to compel performance of a nondiscretionary duty of an administrative officer though another remedy exists, where it appears that the official, under misapprehension of law, refuses to recognize the nature and scope of his duty and proceeds on the belief that he has discretion to do or not to do the thing demanded of him.' Syllab. point 4, Walter v. Ritchie, W.Va., 191 S.E.2d 275 (1972).
Walter L. Wagner, Jr., Dunbar, for relator.
Chauncey H. Browning, Jr., Atty. Gen., George H. Mitchell, Asst. Atty. Gen., Charleston, for respondent.
This is an original application by petitioner, Mountaineer Disposal Service, Inc., a corporation, for a writ of mandamus to compel the Honorable N. H. Dyer, State Director of Health, hereinafter referred to as 'Director', to issue the petitioner a permit to operate a sanitary landfill, which permit is a precondition required by West Virginia Code, Chapter 16, Article 1, Section 9 (Michie's 1931), as amended.
In March 1972, the petitioner filed plans and a request for approval of a sanitary landfill operation to be located in Kanawha County, West Virginia, adjacent to State Local Service Road 12/2. The plans, specifications and other papers were filed pursuant to the requirements of Code, 1931, 16--1--9, as amended, and the regulations of the State Department of Health on file with the office of the secretary of state, designated as 'Department of Health Adm. Reg. 16--1 Series II, Section 6' et seq. (July 1, 1967). On March 17, 1972, Mr. Raymond R. Smith, president of petitioner corporation, received a letter from the Director denying the approval of the application for the reason that past difficulties encountered by the health department in securing Smith's previous compliance as an individual with State law and departmental regulations in the operation of a pre-existing landfill known as the Smith Creek Dump, indicated that Smith, and presumably a corporation of which he was president, was incapable of properly operating a lawful sanitary landfill. Subsequent oral communication between the parties produced no change in the Director's position, and the Director refuses to this day to issue the permit requested by petitioner.
The application for mandamus was filed in this Court on November 3, 1972. It alleged the petitioner's compliance with the statute and regulations; the Director's general authority to issue approval; and the Director's arbitrary and capricious denial or refusal to issue the permit. The relief sought in the petition is in the alternative: either an outright approval of the permit by the Director, or a specification by the Director of what additional information he will require in order to grant approval to petitioner to operate.
The rule granted by this Court on November 20, 1972, was returnable January 10, 1973, at which time the case was submitted for decision upon the pleadings and briefs on behalf of the parties.
The Director demurred to the petition for the reason that the petitioner had failed to exhaust other administrative remedies. In addition, the answer of the Director denies that his disapproval of the permit was arbitrary and caprious and, by implication, alleges that he has not abused the discretion given him by the statute.
Under the accepted rules of pleading, all other allegations of the parties not denied are to be taken as true.
The question for decision is: Does the State Director of Health have discretion under the statute and regulations, to deny a properly executed and submitted application to operate a sanitary landfill, when his refusal is based upon past unsatisfactory operations of applicant's president in the same regulated business?
The Director does not deny that petitioner has complied with the requirements of the statute and regulations, in that petitioner has submitted a properly executed application for the permit. The Director's purported application of the police power of the State is manifested in his refusal to grant an otherwise proper application to operate a sanitary landfill due to the noncompliance with the statute and regulations in other similar operations conducted by petitioner's president and chief executive officer.
The operation of a sanitary landfill, formerly known by its more prosaic name as a garbage dump, was a legitimate business enterprise at common law. On the other hand, the operation of a sanitary landfill does affect the public health. This has been implicitly recognized by the Legislature in its delegation of power to the State Department of Health and the Director of Public Health as the department's chief executive...
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