State ex rel. Anderson v. Dailer
| Decision Date | 15 February 1955 |
| Docket Number | No. 10717,10717 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. Harold D. ANDERSON, v. August L. DAILER, Clerk, etc. |
Syllabus by the Court.
1. The Legislature by the enactment of Chapter 27, Acts of the Legislature, Second Extraordinary Session, 1933, has effectively delegated to the City of Wheeling and other municipalities in the State, the power to construct, maintain and operate highway toll bridges and approaches thereto, over and across any navigable or non- navigable river or stream, which is wholly within the State of West Virginia, or partly within the State, or between this State and any other state, 'from such a point within the corporate limits of such city, to such point on the opposite side of said river or stream, either within or without said city, as the said city, through its proper authorities, shall designate and select, for public use in travel, passage and transportation, over and accross such river or stream.'
2. Chapter 27, Acts of the Legislature, Second Extraordinary Session, 1933, having been enacted by the Legislature in the exercise of the police power of the State, and being remedial in its nature, should be liberally construed to effectuate the legislative intent.
3. The Legislature may delegate to a municipal corporation the exercise of its inherent police power, subject to the control of the courts, but only to the extent that the courts have the power to act.
4. The bridge and tunnel facility provided for in the ordinance adopted by the Council of the City of Wheeling on November 23, 1954, constitutes an approach to the Ohio River Bridge, now being constructed by the State Road Commission of West Virginia, spanning the Ohio River between Ninth and Market Streets, in the City of Wheeling, and Wheeling Island, within the meaning of Chapter 27, Acts of the Legislature, Second Extraordinary Session, 1933.
5. By virtue of Chapter 27, Acts of the Legislature, Second Extraordinary Session, 1933, the City of Wheeling is vested with power to adopt the ordinance of November 23, 1954, which provides for the construction of a bridge and tunnel facility, consisting of two bridges over Wheeling Creek, together with connecting tunnrls, and provides for the payment of the cost of the construction by the revenue bonds authorized by the ordinance, which bridge and tunnel facility, if and when constructed, will permit a direct flow of traffic from a point east of and beyond the business section of the City of Wheeling on United States Route No. 40 to the eastern terminus of the bridge, now being constructed by the State Road Commission of West Virginia, across the Ohio River at Ninth and Market Streets, in the City of Wheeling, it appearing that the construction of the proposed facility will alleviate traffic conditions in the City of Wheeling, and is reasonably necessary to the full use of the bridge, now being constructed, and the maximum safety in the use thereof.
6. The factual findings of a council of a municipal corporation, set forth in an ordinance, duly adopted, that the construction of a proposed bridge and tunnel facility, will be to the best interests of the residents of the municipality, and that the estimated net earnings from the proposed project, provided for in the ordinance over and above the necessary cost of operating and maintaining the same will be sufficient to pay the principal of and interest on the bonds issued pursuant to the ordinance, and make all reserve, sinking fund and other payments provided for in the ordinance, are legislative in their very nature, and are not subject to judicial inquiry.
7. The revenue bonds and interest coupons thereto, provided for by the ordinance adopted by the Council of the City of Wheeling on November 23, 1954, do not constitute an indebtedness of the City of Wheeling, County of Ohio, State of West Virginia, or the State Road Commission of West Virginia, and do not represent a direct indebtedness of the City of Wheeling, so as to come within the limitation contained in Section 8, Article X, of the Constitution of West Virginia.
8. The Clerk of the City of Wheeling has the mandatory duty to countersign the revenue bonds provided for in the ordinance adopted by the Council of the City of Wheeling on November 23, 1954, and to perform such other administrative acts as will bring about the issuance of the bonds provided for in the ordinance, which duty may be enforced by a writ of mandamus.
Chester R. Hubbard, Wheeling, for relator.
Charles P. Mead, Wheeling, for respondent.
In this proceeding in mandamus of the petitioner, State of West Virginia ex rel. Harold D. Anderson, against August L. Dailer, Clerk of the City of Wheeling, a municipal corporation, respondent, the relator, Harold D. Anderson, a citizen, resident and taxpayer of the City of Wheeling, on behalf of himself as a citizen, resident and taxpayer of the City of Wheeling and on behalf of all other citizens, residents and taxpayers, who join in this proceeding and agree to show cause therefor, seeks to require the respondent clerk, August L. Dailer, to countersign revenue bonds in the amount of twelve million dollars, as provided in the ordinance of the Council of the City of Wheeling adopted on November 23, 1954, the issuance of which revenue bonds was authorized for the purpose of financing the cost of the construction of a bridge and tunnel facility, designed to provide a direct connection with a point on United States Route No. 40, in the suburban section of the City of Wheeling, known as 'Glenwood', with the eastern terminal of a bridge, which is now under construction by the state road commission, from the intersection of U. S. Route No. 40 at Ninth and Market Streets in the City of Wheeling across the Ohio River to that part of the city known as 'Wheeling Island'.
On November 23, 1954, the Council of the City of Wheeling adopted an ordinance, hereinafter at times referred to as the 'ordinance', authorizing the construction of a bridge and tunnel facility, connecting U. S. Route No. 40 with Market Street at Ninth Street in the City of Wheeling; providing for a direct connection with the Ohio River Bridge, now under construction, at Ninth Street, and authorizing the issuance of revenue bonds of the City of Wheeling in the amount of twelve million dollars, under the provisions of Chapter 27, Acts of the Legislature, Second Extraordinary Session, 1933, hereinafter at times referred to as 'Chapter 27'.
By this ordinance the Council of the City of Wheeling made the following findings:
'(A) That it will be in the best interest of the inhabitants of the City of Wheeling, the County of Ohio, and State of West Virginia, for the City of Wheeling to construct and establish a bridge and tunnel facility connecting U. S. Route 40 with Market Street at 9th Street in the City of Wheeling and providing a direct connection with the Ohio River bridge currently under construction at 9th Street, together with the necessary approaches and appurtenances thereto, and all facilities and equipment for the operation thereof. (Hereinafter collectively referred to as 'Project'.)
'(B) That the estimated net earnings from said Project, over and above the necessary cost of operating and maintaining the same, will be sufficient to pay the principal of and interest on all of the Bonds issued pursuant to this ordinance and to make all reserve, sinking fund and other payments provided for in this ordinance.
'(C) That the principal of and interest on the Bonds to be issued pursuant to this ordinance and all of the reserve, sinking fund and other payments provided for in this ordinance, will be paid solely from the revenues derived from the operation of said Project by the City of Wheeling and the Bonds issued pursuant to this ordinance shall not constitute a debt or charge against the State of West Virginia, or the County of Ohio, or the City of Wheeling or any political subdivision of said State.
The petition alleges that on November 14, 1954, the City of Wheeling entered into a contract with North American Construction Corporation, a corporation, organized and existing under the laws of the State of Delaware, under the terms of which it was agreed that North American...
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