Russell Transfer, Inc. v. Moore, 13551

• Decision Date: 11 March 1975
• Docket Number: No. 13551,13551
• Citation: 212 S.E.2d 433,158 W.Va. 534
• Parties: RUSSELL TRANSFER, INC. v. Arch A. MOORE, Jr., Governor of the State of West Virginia.
• Court: West Virginia Supreme Court

Page 433

212 S.E.2d 433

158 W.Va. 534

RUSSELL TRANSFER, INC. v. Arch A. MOORE, Jr., Governor of the State of West Virginia.

No. 13551.

Supreme Court of Appeals of West Virginia.

March 11, 1975.

Syllabus by the Court

1. The provisions of Code, 1931, 14--2--23, as amended, relating to the manner in which claims against the State are certified by the clerk of the court of claims for inclusion in the budget bill, contemplate an annual certification prior to the next succeeding legislative session.

2. Once a claim against the State has been approved and becomes law by the exercise of legislative and executive powers, it is a debt of the State, unless subjected to a successful judicial attack, and the Governor is constitutionally mandated, under the provisions of Article VI, Section 51, subsec. B(3)(d), of the Constitution of West Virginia, to include such a claim within his budget bill.

Robert E. Douglas, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., James A. Swart, Asst. Atty. Gen., Charleston, for respondent.

SPROUSE, Justice:

This is a mandamus proceeding in which the petitioner, Russell Transfer, Inc., asks that the respondent, Arch A. Moore, Jr., Governor of the State of West Virginia, be required to include the sum of $44,825.17 within the section of his 1975--76 budget bill, entitled 'Awards for Claims Against the State'.

The Court of Claims of this State on December 4, 1973, granted an award of $44,825.17 to the petitioner. The facts surrounding the award, while not important for resolution of the issues presented here, provide a background for an understanding of the case. The claim was based upon the refusal of the State to honor a one-year contract for the transportation and warehousing of all alcoholic beverages by the petitioner, a nonresident common carrier. Although the petitioner was the successful bidder for the duly executed contract, evidence before the Court of Claims indicated that the contract was unilaterally cancelled because of the Governor's policy favoring West Virginia bidders. No statutory authority nor written rules or regulations articulated such a policy, nor had the policy been formally communicated to the employees in charge of purchase procedures. The contract was subsequently awarded to another company after different specifications for new bids made the petitioner ineligible to bid.

The petitioner in the Court of Claims sought damages in the amount of $183,496 and was awarded $44,825.17. The Court of Claims found: 'The evidence is uncontradicted in this unusual situation and clearly brings us to a legal conclusion that a valid contract was executed between the parties, enforcible in any court of law, signed and approved in compliance with the statutes of the State of West Virginia * * *.'

The procedures followed for including the award in the budget created the issues to be determined on appeal. The clerk of the Court of Claims certified the award to the Department of Finance and Administration on December 18, 1973, as required by Code, 1931, 14--2--23, as amended. The Legislature thereafter in the 1974 Session, following the statutory scheme for declaring a moral obligation of the State, passed a claims bill which included petitioner's claim. This bill was signed into law by the Governor. In the same Session, the Legislature passed the budget bill which included an amount for the petitioner's award. The Governor vetoed this item of the budget.

In November, 1974, and January, 1975, the clerk of the Court of Claims again certified to the Department of Finance and Administration claims awarded by the court, but the petitioner's award was not included in this certification. No amount representing the petitioner's award was included in the budget bill submitted by the Governor to the 1975 Legislative Session. The petitioner, thereafter, filed a petition in this Court for a writ of mandamus requiring the governor to include that amount in the budget bill.

There are two principal issues presented by this mandamus proceeding: (1) Whether it was necessary for the petitioner's claim to have been recertified in 1974 in order to be included in the 1975 budget; and (2) whether an amount awarded by the Court of Claims and approved by an act of the Legislature becomes a part of the Legislative Budget which must be submitted as a part of the budget bill prepared by the Governor regardless of certification.

Code, 1931, 14--2--23, as amended, provides:

'The clerk shall certify to the department of finance and administration, on or before the twentieth day of November of each year, a list of all awards recommended by the court to the legislature for appropriation. The clerk may certify supplementary lists to the governor to include subsequent awards made by the court. The governor shall include all awards so certified in his proposed budget bill transmitted to the legislature.'

The claim in 1973 was certified to the Department of Finance and Administration after the last date allowed by statute for that year, i.e., in December, 1973. However, the question whether there was substantial compliance with the requirements of the statute in 1973 to permit consideration of the claim in the 1974 Legislative Session is not before us. The Legislature, treating it as appropriate for that year, passed the act creating the State obligation and made a parallel appropriation in the budget bill. The budget item was vetoed by the Governor. The question that arises is whether the single 1973 certification by the Court of Claims has a continuing effect requiring the Governor to submit the award as a part of the budget bill in succeeding years.

We think this would be an unwarranted and strained interpretation of Code 14--2--23. When a statute is clear and unambiguous and the legislative intent is plain, it is the duty of the Court to apply the statute in accordance with the legislative intent therein expressed without resort to interpretation. Canyon Public Service District v. Tasa Coal Company, W.Va., 195 S.E.2d 647; State v. Bragg, 152 W.Va., 372,163 S.E.2d 685. If the intention of the Legislature is to make compliance with the provision of a statute essential, the statute is mandatory in its requirements; but where compliance is not essential, the provision is directory. State ex rel. Kennedy v. Boles, 150 W.Va. 504, 147 S.E.2d 391. Frequently, provisions relating to the time when an act is to be accomplished are not regarded as the essence of a statute and are held to be directory. Canyon Public Service District v. Tasa Coal Company, Supra; 73 Am.Jur.2d, Statutes, Section 18, page 279. Here, however, the provisions of Code, 14--2--23, have not been satisfied, whether they be considered mandatory or directory. The statute provides in part that: 'The clerk shall certify to the department of finance and administration, on or before the twentieth day of November Of each year, * * *.' Even if the time provisions were directory, the plain and unambiguous meaning of this language...