State ex rel. City of Charleston v. Bosely

Decision Date15 July 1980
Docket NumberNo. 14031,14031
Citation165 W.Va. 332,268 S.E.2d 590
PartiesSTATE ex rel. CITY OF CHARLESTON, etc. v. Hugh BOSELY, City Mgr., etc.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. The legislature is free to delegate authority to municipal corporations on matters of purely local concern.

2. When the principal object of an act of the legislature is expressed in the title, and the act embraces, along with such principal object other incidental or auxiliary objects germane to the principal object, the act is not repugnant to section 30, art. 6, of the constitution, and is valid as to such principal and auxiliary or incidental object. Syl. pt. 4, City of Huntington v. Chesapeake and Potomac Telephone Co., 154 W.Va. 634, 177 S.E.2d 591 (1970); Syl. pt. 10, State v. Mines, 38 W.Va. 125, 18 S.E. 470 (1893).

3. "A legislative determination of what is a public purpose will not be interfered with by the courts unless the judicial mind conceives it to be without reasonable relation to the public interest." Syl. pt. 2 State ex rel. Kanawha County Building Commission v. Paterno, W.Va., 233 S.E.2d 332 (1977); Syl. pt. 2 State ex rel. West Virginia Housing Development Fund v. Waterhouse, W.Va., 212 S.E.2d 724 (1974).

4. The restriction of tax authority to specific political subdivisions based on population levels, to the detriment of the remainder of the State, is an arbitrary, unreasonable and inappropriate means by which to implement a general statewide program of civic and economic development, and is therefore void under W.Va.Const. art. 6, § 39, prohibiting "special legislation."

Robert R. Harpold, Jr., City Atty., Charleston, for plaintiff in error.

Jackson, Kelly, Holt & O'Farrell, James K. Brown, Lee O. Hill, Michael A. Albert, Charleston, for defendant in error.

McGRAW, Justice:

This case is here on petition for writ of error filed by Mr. Hugh Bosely, City Manager of Charleston, West Virginia. Mr. Bosely represents that he is aggrieved by a final order of the Circuit Court of Kanawha County whereby a writ of mandamus was awarded upon petition of the City of Charleston, ordering Mr. Bosely to comply with certain directions of the City Council of Charleston. Mr. Bosely appeals to this Court to set aside the writ granted below, claiming that compliance with the order would run contrary to principles of the fundamental law of our state.

Briefly, the case has arisen as follows. The petitioner below, the City of Charleston, is a "Class I city" as defined by state law. 1 Under W.Va.Code §§ 8-16-1 and 8-16-2, the City is authorized to construct certain facilities referred to as "public works," and to issue revenue bonds for the payment of costs incurred in such projects. Additionally, W.Va.Code §§ 8-13-3 and 8-16-18a authorize any Class I city to levy and collect an excise tax upon the occupancy of hotel rooms within the corporate limits, and to pledge and expend the revenues therefrom for the payment of bonds which have been issued to construct convention facilities.

The City Council of Charleston, by ordinance, authorized the imposition of a hotel occupancy tax in June, 1975. Slightly more than one year later, in August, 1976, the City Council determined that there was a need in the city for the development of "additional convention facilities," and that such facilities would serve a public purpose. An ordinance was passed directing the respondent, Mr. Bosely, to execute a contract with a firm known as Economics Research Associates. This contract was to provide for an independent analysis of revenues to be generated from the hotel occupancy tax and the amount of bonds which could be issued, payable from these revenues, to finance development of the proposed convention facilities.

Mr. Bosely, in his capacity as city manager, refused to execute the contract, stating that he considered execution of such a project to be improper under certain provisions of the West Virginia Constitution. It was Mr. Bosely's position that the city would be paying for unnecessary services if the bonds could not be sold due to constitutional limitation.

Following Mr. Bosely's refusal to act, the City Council directed the mayor to secure proper determination of the legal issues involved. A petition for a writ of mandamus was then filed in Kanawha County Circuit Court by the city. In opposition to the petition and rule, respondent Bosely filed an answer and demurrer admitting the relevant facts and stating the reasons for his refusal to execute the contract. Briefs were filed and oral arguments made before Judge Thomas E. McHugh in April, 1977.

On May 17, 1977, the circuit court issued a written opinion upholding the city's position. Nine days later an order was issued awarding the writ of mandamus and ordering the respondent-appellant to carry out the direction of city council and to execute the contract with Economics Research Associates.

It is from this order that Mr. Bosely has appealed to this Court, asking that the writ of mandamus be set aside and the legality of the proposed bond issue be finally adjudicated.

I

Initially, there are three issues which must be addressed.

Petitioner's first contention is that the statutory provisions in W.Va.Code § 8-13-3, authorizing the collection of the hotel occupancy tax, constitute an improper delegation of legislative power to municipalities. This contention is based in the language of W.Va.Const. art. 6, § 1, which provides in part that "The legislative power shall be vested in a Senate and House of Delegates."

The gist of petitioner's argument is that all power to legislate on matters of legitimate state concern is vested in the state legislature, and that it cannot be handed down to any lesser authority. The weakness of this generalization is illustrated by the facts of this case. The legislature has decided that development of convention facilities is a matter of statewide import, but at the same time is most efficiently effectuated by implementation at the local level. This is not infirm. Having exercised the legislative power over the substantive issue, the legislature is free to delegate the administrative authority over local development to the affected communities' governing bodies. It has long been settled that the legislature is free to delegate authority to municipal corporations on matters of purely local concern. See, State ex rel. City of Charleston v. Coghill, 156 W.Va. 877, 207 S.E.2d 113 (1973), and sources cited therein.

Petitioner next urges that the hotel occupancy tax act, W.Va.Code § 8-13-3 is void because it embraces more than one object, and because one of its objects is not expressed in the title, all in contravention of W.Va.Const. art. 6, § 30, which states in part that:

No act hereafter passed, shall embrace more than one object, and that shall be expressed in the title. But if any object shall be embraced in an act which is not so expressed, the act shall be void only as to so much thereof, as shall not be so expressed, and no law shall be revived, or amended, by reference to its title only; but the law revived, or the section amended, shall be inserted at large, in the new act.

The terms of this constitutional provision have been considered many times, and its purpose has been well defined. It is designed to insure that the title of an act contains a statement of the objects and purposes of the proposed enactment, thus preventing the incorporation of any legislation to which there was no index in the title. State v. Voiers, 134 W.Va. 690, 61 S.E.2d 521 (1950). The provision is intended to guard against the enactment of laws by fraud or deceit. It is designed to avoid laws that might be passed by including them in an act relating to a separate purpose, stated in the title, but which would in fact relate to other and different purposes, not so stated. State ex rel. Davis v. Oakley, 156 W.Va. 154, 191 S.E.2d 610 (1973); State ex rel. Dyer v. Sims, 134 W.Va. 278, 58 S.E.2d 766 (1950); Cutlip v. Sheriff of Calhoun County, 3 W.Va. 588 (1869).

The title of the act which created the hotel occupancy tax, Ch. 165, 1975 W.Va. Acts, is as follows:

AN ACT to amend article thirteen, chapter eight of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new section, designated section three, authorizing class I cities to levy and collect a hotel occupancy tax; limiting the rate of any such tax to three percent of the room rental; providing that any such tax shall be imposed on the occupant and collected by the hotel as part of the consideration paid for the room; defining the term "hotel" for the purpose of the levy and collection of such tax; specifying the use to be made of revenues derived from such tax; and specifying provisions which must be set forth in any municipal ordinance imposing such tax.

This title, while comprehensive, is quite specific and fully discloses the purpose and various provisions of the act in question. Further, while several details are covered, they all deal with the same object, that is, the hotel occupancy tax. The title, and the act itself, were designed to cover all technical statutory aspects of the new tax. This does not mean that the act deals with more than one object; it just means that the act covers one object comprehensively.

In 1970, this Court announced a standard which is in accord with a common sense view of the purpose of W.Va.Const. art. 6, § 30. In City of Huntington v. Chesapeake and Potomac Telephone Co., 154 W.Va. 634, 177 S.E.2d 591 (1970), it was said that:

The title of a statute will generally be regarded as sufficient, not only where the subject or object of the act is clearly disclosed by the title, but also where it fairly or reasonably expresses, embraces, or indicates the general subject or object, is directly or indirectly related, germane, cognate, incidental, auxiliary, or subservient thereto, and has a proper, fair,...

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