State ex rel. Bibb v. Chambers

• Citation: 77 S.E.2d 297,138 W.Va. 701
• Decision Date: 02 September 1953
• Docket Number: No. 10616,10616
• Parties: STATE ex rel. BIBB, v. CHAMBERS.
• Court: Supreme Court of West Virginia

Page 297

77 S.E.2d 297

138 W.Va. 701

STATE ex rel. BIBB, v. CHAMBERS.

No. 10616.

Supreme Court of Appeals of West Virginia.

Submitted July 29, 1953.

Decided July 30, 1953.

Opinion Filed Sept. 2, 1953.

Syllabus by the Court.

1. A municipal corporation has no inherent police power, and has only such regulatory power as has been expressly or impliedly conferred upon it by the Constitution, or delegated to it by the Legislature.

2. Section 1, Chapter 68, Acts of the Legislature, Regular Session, 1935, as amended by Section 1, Article 4-a, Chapter 90, Acts of the Legislature, Regular Session, 1945, and as amended and reenacted by Section 1, Article 4-a, Chapter 136, Acts of the Legislature, Regular Session, 1951, and Section 1-a, Article 4-a, Chapter 137, Acts of the Legislature, Regular Session, 1951, as amended and reenacted by Section 1-a, Article 4-a, Chapter 134, Acts of the Legislature, Regular Session, 1953, have as their underlying purpose the alleviation of congested parking conditions in the municipalities of the State, and were enacted in the exercise of the police power of the State.

3. Section 1-a, Article 4-a, Chapter 137, Acts of the Legislature, Regular Session, 1951, as amended and reenacted by Section 1-a, Article 4-a, Chapter 134, Acts of the Legislature, Regular Session, 1953, should be construed to mean that a municipality, which has appointed a commission to supervise and control automobile parking facilities, when constructed under the provisions of Chapter 68, Acts of the Legislature, Regular Session, 1935, as amended by Section 1, Article 4-a, Chapter 90, Acts of the Legislature, Regular Session, 1945, as amended and reenacted by Section 1, Article 4-a, Chapter 136, Acts of the Legislature, Regular Session, 1951, is empowered to pledge the revenues derived from on-street parking meters, unless such revenues are otherwise pledged, to help finance such off-street automobile parking facilities, including the payment of the principal and interest on revenue bonds issued for the purpose of financing the construction of the off-street automobile parking facilities.

4. It is a cardinal rule of construction governing the interpretation of statutes that the purpose for which a statute has been enacted may be resorted to by the courts in ascertaining the legislative intent.

5. The factual finding of the council of a municipal corporation that the existing parking facilities within a municipality are inadequate is not subject to judicial inquiry.

6. 'Under the police power of the State, the Legislature has the power to provide for the protection of the safety, health, morals, and general welfare of the public, and may delegate such powers to municipalities created by it.' Pt. 1 Syl., Hayes v. Town of Cedar Grove, 126 W.Va. 828 [30 S.E.2d 726, 156 A.L.R. 702].

7. A municipal corporation may not enact an excise tax in the absence of a legislative delegation of authority.

8. Though on-street parking meters were designed to aid in the control and regulation of traffic on the public streets of municipalities, and may be erected and maintained in the valid exercise of the police power, under Section 32, Article VIII, Chapter 40, Acts of the Legislature, First Extraordinary Session, 1933, and fees may be charged for using the parking meters to defray the expense of the regulatory service, a municipality may not devote the use of the meters to purely revenueraising purposes.

9. This Court in the exercise of its original jurisdiction in mandamus will not decide a nonjurisdictional question not raised by the pleadings.

10. In an original proceeding in mandamus, instituted for the purpose of compelling the mayor of a municipality to sign revenue bonds, provided for by a valid bond ordinance, to finance the construction of off-street parking facilities by the revenues derived from the off-street parking facilities and from on-street parking meters, this Court will not hold the ordinance to be invalid as being a revenue measure, in the absence of an affirmative showing that the combined revenues to be derived from the off-street parking facilities and on-street parking meters do not exceed the cost of constructing and operating the off-street parking facilities and the on-street parking meters, and the principal and interest on the revenue bonds issued for the purpose of financing the construction of the off-street parking facilities.

11. Where the council of a municipal corporation by a valid ordinance or ordinances, enacted pursuant to Section 1, Chapter 68, Acts of the Legislature, Regular Session, 1935, as amended by Section 1, Article 4-a, Chapter 90, Acts of the Legislature, Regular Session, 1945, and as amended and reenacted by Section 1, Article 4-a, Chapter 136, Acts of the Legislature, Regular Session, 1951, and Section 1-a, Article 4-a, Chapter 137, Acts of the Legislature, Regular Session, 1951, as amended and reenacted by Section 1-a, Article 4-a, Chapter 134, Acts of the Legislature, Regular Session, 1953, has provided for the construction of a public automobile parking lot, to be financed by revenue bonds to be issued over the signature of the mayor of the municipality, such mayor has the mandatory administrative duty to sign the revenue bonds, and to perform such other administrative acts as will bring about the issuance of the bonds and the furtherance of the construction of the proposed parking lot, which duty will be enforced by this Court in an original proceeding in mandamus.

Scherer, Bowers & File and W. H. File, Jr., Beckley, W. Va., for petitioner.

W. T. O'Farrell, Charleston, W. Va., for respondent.

RILEY, Judge.

The relator, E. Earl Bibb, hereinafter designated as the 'petitioner', invoking the original jurisdiction of this Court, instituted this proceeding in mandamus of State of West Virginia ex rel. E. Earl Bibb against George B. Chambers, Mayor of the City of Beckley, to require the respondent mayor to sign and take such other steps as may be necessary for the issuance of public utility revenue bonds, as provided for in an ordinance adopted by the Common Council of the City of Beckley on July 1, 1953 which issue of revenue bonds was for the purpose of financing an extension of existing parking facilities in the City of Beckley by the construction of a municipal parking lot, and providing that the cost of construction be paid on a self-liquidating basis from the revenues derived from the operation of the parking facilities; and as further security for the cost of construction the ordinance provides for the pledge of the net revenues from on-street parking meters owned and maintained by the City of Beckley.

This Court on July 30, 1953, the return day of the rule herein, entered an order awarding the peremptory writ prayed for, and providing that at a later date the Court would file an opinion stating the reasons which prompted the entry of this order: accordingly, this opinion is filed.

The ordinance adopted by the Common Council of the City of Beckley on July 1, 1953, was entitled: 'An Ordinance providing for the acquisition, construction, operation and maintenance of additional automobile parking facilities in and for the City of Beckley, West Virginia, and for the issuance of revenue bonds in connection therewith, setting forth the terms and conditions upon which said bonds are to be issued and outstanding, and providing for the collection, segregation and distribution of income and revenues from the operation of such undertaking so as to pay said bonds and interest thereon'. Following its passage the ordinance was published once a week for four successive weeks in two newspapers of opposite political faiths of general circulation in the City of Beckley, namely, the Raleigh Register, a democratic newspaper, and the Beckley Post Herald, a republican newspaper. The publication gave notice that a public hearing on the ordinance would be available to all interested parties at 7:30 p. m., on Monday, July 20, 1953, at the City Hall in the City of Beckley, the time set for the hearing being not less than ten days after the first publication of the ordinance on July 6, 1953. At the public hearing held on July 20, 1953, pursuant to publication of the ordinance, all persons in interest had an opportunity to appear before the council and be heard on the question whether the ordinance should be put into effect. At the hearing no written protest, as required, was filed by more than thirty per cent of the owners of real estate situated in the City of Beckley, and no material opposition was made on the part of any substantial group of citizens; so that thereupon and thereby, as the petition alleges, the ordinance became and was in full and valid effect, and the council adopted a resolution declaring that the ordinance of July 1, 1953, was duly adopted by the Common Council of the City of Beckley, and was in full and valid effect.

The petition further alleges that on July 20, 1953, the Common Council of the City of Beckley, pursuant to Section 3, Chapter 68, Acts of the Legislature, 1935 (Michie's West Virginia Code of 1949, Anno., 8-4A-3), adopted an ordinance entitled 'An Ordinance providing for the management, control and operation of the municipal public automobile parking facilities of the City of Beckley.', which ordinance created a board of commissioners for the purpose of managing, controlling and operating the municipal public automobile parking facilities, provided for in the bond ordinance of July 1, 1953.

The petition alleges that for approximately three years the City of Beckley has been engaged in a proceeding in eminent domain for the purpose of acquiring a large piece of unimproved property, situated adjacent to the principal business section of the City of Beckley, owned by various persons. The purpose of the proposed taking of the property was the construction of a three hundred fifty-car parking lot at an estimated total cost of $465,000, and...