Plaintiff v. County Court Of Kanawha County.

• Citation: 80 W.Va. 612
• Court: Supreme Court of West Virginia
• Decision Date: 22 May 1917
• Parties: Lawson et als. v. County Court of Kanawha County.

80 W.Va. 612

Lawson et als.

v.County Court of Kanawha County.

Supreme Court of Appeals of West Virginia.

Submitted May 8, 1917.

Decided May 22, 1917.

1. Counties Indebtedness Constitutional Provisions.

In the formulation and adoption of the Constitution of this state, the people, marking the distinction between public expenses and public debts, vested ultimate and complete discretion as to the creation of county, district and municipal indebtedness and also as to the purposes for which the same shall be incurred, in the people of the respective fiscal sub-divisions of the state, by sec. 8 of Art. X of said constitution, inhibiting the creation of such debts in excess of amounts ascertainable by a rule therein prescribed; requiring provision for payment of interest thereon annually and discharge of the principal within a specified period when such indebtedness is created; and also inhibiting the creation of any such debt in any amount, without the assent of the people expressed in a certain and definite manner. (p. 619).

2. Same Indebtedness Conditions Fixed by Voters Constitutional

Provisions.

Within the limits fixed by law, the power and discretion of county courts, boards of education and municipal authorities, as to funds they legally provide themselves with for public expenses and improvements, by taxation, are supreme and uncontrollable by citizens and tax-payers, and, in the case of county courts, such funds are within the broad fiscal jurisdiction conferred upon them by sec. 24 of Art. VIII of the Constitution; but funds legally provided for public improvements and other lawful purposes and placed in their hands, by means of the creation of public debts, are popular grants of money, made upon the conditions prescribed in the propositions for creation of such debts, submitted to the people and assented to by them, in the manner prescribed by said sec. 8 of Art. X of the Constitution. (p. 619).

3. Same Public Improvements Conditions of Vote Constitutional

Provisions.

The limitation in said section 8 of Art. X, inhibiting creation of indebtedness, without having first submitted '' all questions connected with the same" to a vote of the people and obtained their assent thereto by three-fifths of all the votes cast for and against the proposition, authorizes expression and enforcement of the popular will, not only as to the character, amount and purpose of the proposed debt, but also as to the character of any public improvement for the making of which money is raised by a bond issue, and the administration and application of the fund so raised therefor; and, if measures, not inconsistent with law nor transgressive of any principle of public policy, limiting the discretion and powers of a county court, board of education or municipal authorities, seeking assent to a bond issue, as to any of such matters, or providing for representation by the tax-payers in the administration and use of such money, are incorporated in the order of submission, they are valid and binding, as conditions annexed to the grant of the fund, and must be observed and complied with by the contracting and disbursing public authorities to whom the law gives the fund for execution of the purpose for which it was provided. (p. 619).

4. Same Road Improvement Expenditures Injunction.

A provision in an order of a county court submitting to the voters of a magisterial district, a bond issue proposition for a public road improvement, appointing an advisory committee and requiring the engineers in charge of the work, the plans and specifications and the contracts for construction of the work, to be such as are approved by such advisory committee and the State Eoad Engineer, is valid and binding upon the county court, and tax-payers of such district may enjoin the performance and carrying out of a contract for the work, entered into by the county court without the approval of such committee and over its protest, (p. 624).

5. Constitutional Law General and Special Terms.

General and indefinite terms of one provision of a constitution, literally embracing numerous subjects, are impliedly limited and restrained by definite and specific terms of another, necessarily and inexorably withdrawing from the operation of such general terms, a subject which, but for such implied withdrawal, would be embraced and governed by them. (p. 624).

6. Same Construction.

A subject or matter which, in the abstract, belongs to a certain class or species, jurisdiction over which is vested generally in a certain tribunal, may be impliedly detached or segregated therefrom, or assigned to a jurisdiction other than that to which such class or species is subjected in general terms, by a special constitutional or statutory provision assigning it to a different jurisdiction, or the jurisdiction over the class msy be impliedly limited or qualified by conditions provided for or imposed by such special provision. (p. 618).

Appeal from Court of Common Pleas, Kanawha County.

Suit for injunction by W. A. Lawson and others against the County Court of Kanawha County and others. From a decree overruling a motion to dissolve an injunction, defendants appeal. Decree affirmed.

McClintic, Mathews & Campbell and T. C. Townsend, for appellants.

Price, Smith, Spilman & Clay and C. Beverly Broun, for appellees.

poffenbarger, judge:

The principal questions raised by this appeal from a decree overruling a motion to dissolve an injunction restraining the County Court of Kanawha County, the R. M. Hudson Paving and Construction Company and the Atlantic Bitulithic Company, assignee of the R. M. Hudson Paving and Construction Company, from performing and carrying into execution a contract for permanent improvement of a certain road in Loudon District of said county, involving the expenditure of $90,000.00 provided for the purpose by a bond issue, on the ground of an alleged violation of a condition upon which the bond issue was authorized by the voters of the district, namely, that the plans, specifications and contract for such improvement should be approved by an advisory committee named in the order submitting the bond issue proposition to the voters, are; (1), whether the order, properly construed, makes approval of the contract by the advisory committee a condition precedent to the right of the county court to enter into a contract for the work; and (2), if so, whether such a provision or condition is valid. The letting of the contract without approval of the advisory committee is admitted, although the members thereof had notice of the letting and an opportunity to be heard on the question of acceptance or rejection of the contract, as submitted or proposed, and two of them were present and, speaking for the others as well as themselves, protested against the award of the contract. The order of submission also provided for approval of the contract by the State Road Engineer. He did not approve the particular contract made, but did approve plans, specifications, rules, regulations and forms of proposal and contract under and in conformity with which the award was made and the agreement entered into.

To have made the committee merely advisory and stopped short of any limitation upon the powers of the court or regulation of the exercise of its powers, by such a provision, would not have been a vain, useless or idle arrangement. An intelligent, honest and faithful court may be greatly aided by the advice of men who are giving special attention and study to a particular matter falling within its jurisdiction. But, if the voters had power and authority to impose a positive check upon the court's action, by a requirement of the approval by the committee of proposed action, and have effectively expressed their intention to do so, their purpose cannot consistently be limited or curtailed to a more moderate and conservative one, because it might be productive of highly meritorious results or even those contemplated. As in all other cases of interpretation, the terms and provisions of the order are controlling on the question of intention.

The provision in question is an addition to what otherwise would have amounted to a complete order of submission. In other words, it follows other provisions that would have been adequate for legal ascertainment of the will of the voters as to the question submitted, including a recital, ipsissimis verbis, of a petition praying that the proposition be submitted and that the proceeds of the bonds '' be by the said court used in the permanent improvement of such roads by the use of asphaltum, brick, stone, granite block, or by macadamizing, or other process of equal merit, and in such manner as is prescribed by law." The order declares the proceeds of the bonds, when authorized and issued, "shall be used for the purpose set out in said petition.'' THese clauses are to be considered in connection with the provision for approval etc. by the State Road Engineer and the advisory committee, which reads as follows:

"It is further ordered by the Court that in the event the said bond election shall carry that the engineer or engineers employed upon the survey and supervision of the said roads be such as are approved by the State Road Engineer and by the State Road Bureau and the advisory committee, herein- after provided for; and that the plans and specifications and the contract for said work be snch as are approved by the State Road Engineer and by the advisory committee as hereinafter provided for; and that the work shall not be paid for until inspected and approved by said advisory committee. It is further ordered that in the event said bond issue shall carry, that the following named men, voters and freeholders in said Kanawha County, namely: W. A. Lawson, J. E. Finnegan, W. A. MaeCorkle, C. H. Fink and S. II. Campbell, be and they are hereby appointed by this Court to act as an advisory committtee to this Court in all matters relating to said road improvement, including...