State ex rel. City of Charleston v. Hutchinson, No. 12994

CourtSupreme Court of West Virginia
Writing for the CourtBERRY
Citation176 S.E.2d 691,154 W.Va. 585
PartiesSTATE ex rel. the CITY OF CHARLESTON, etc., et al. v. John G. HUTCHINSON, Treasurer, etc.
Decision Date29 September 1970
Docket NumberNo. 12994

Page 691

176 S.E.2d 691
154 W.Va. 585
STATE ex rel. the CITY OF CHARLESTON, etc., et al.
v.
John G. HUTCHINSON, Treasurer, etc.
No. 12994.
Supreme Court of Appeals of West Virginia.
Decided Sept. 29, 1970.
Submitted Sept. 2, 1970.
Rehearing Denied Nov. 16, 1970.

Page 692

Syllabus by the Court

1. A city treasurer is held to a higher standard of liability for public trust funds in his custody than ordinary fiduciaries.

2. A municipal corporation has only the powers granted to it by the legislature, and any such power it possesses must be expressly [154 W.Va. 586] granted to necessarily or fairly implied or essential and indispensable. If any reasonable doubt exists as to whether a municipal corporation has a power, the power must be denied.

3. 'When the general law of the state has so dealt compresensively with the subject matter of a municipal ordinance, the general law is dominant and controlling and the ordinance is invalid and unenforceable, in the absence of specific authority conferred by the legislature.' Pt. 2, syllabus, State ex rel. Constanzo v. Robinson, Judge, 87 W.Va. 374, 104 S.E. 473.

4. '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 expenses of the regulatory service, a municipality may not devote the use of the meters to purely revenue-raising purposes.' Pt. 8, syllabus, State ex rel.

Page 693

Bibb v. Chambers, 138 W.Va. 701, (77 S.E.2d 297).

B. Duffy Horan, City Sol., Cleo S. Jones, Charleston, W.Va., for relators.

Mario J. Palumbo, George A. Daugherty, Charleston, W. Va., for respondent.

BERRY, Judge:

This is an original proceeding in mandamus instituted under the original jurisdiction of this Court in which the City of Charleston, a municipal corporation, and Elmer H. Dodson, its Mayor, petitioners herein, seek to compel John G. Hutchinson, Treasurer of the City of Charleston, to transfer the token sum of $10,000 from the Parking System Revenue Fund to the general fund of the City of Charleston, from which it could be used for municipal purposes other than those connected with the operation of the parking system. The total amount involved [154 W.Va. 587] is actually $100,000 which the petitioners desire to have transferred from the Parking System Revenue Fund to the general fund of the City.

The petition was filed on July 21, 1970 and a rule was issued returnable September 2, 1970 at the Regular September Term of this Court, at which time it was submitted for decision on arguments and briefs.

The Controversy in this case arose over the attempt by the petitioners to withdraw a surplus accumulated in the Parking System Revenue Fund above the money needed for the current operation and current sinking fund requirements of the bonds with which the parking facilities were originally constructed. The details of the system were originally set up by a City Ordinance.

Prior to 1965 it appears that most of the parking facilities were ordinary parking meters in most instances located on streets and commonly called 'on-street' parking facilities. About that time it was decided to add to the parking facilities several tracts of land at different places in the City, most of which were in the vicinity of the City Hall, in which metered 'off-street' parking could be accommodated. In order to finance these 'off-street' parking facilities, Ordinance No. 794 was adopted by the City on September 7, 1965, and Ordinance No. 843 was adopted on May 19, 1966. The second Ordinance was for extension or addition to the system created by the first Ordinance. The method of financing the construction was by the issuance of revenue bonds which depend for their payment upon the revenue to be derived from the parking system, thereby avoiding the pledging of the general credit of the City, which would have required the submission of a bond issue question to the vote of the citizens of the City.

The method authorizing the issuance of Parking Revenue Bonds in 1965 and 1966 was contained in Article 4A of Chapter 8 of the Code of West Virginia, which has since been amended but is still similar. The statutes applicable to this case are now in Articles 13 and 16 of Chapter 8 of the Code of West Virginia, as amended.

[154 W.Va. 588] Under the first Ordinance, referred to above, $420,000 worth of bonds were issued, and under the second Ordinance $295,000 more were issued under almost identical conditions as set up by the first Ordinance. By these Ordinances the entire 'on-street' and 'off-street' parking facilities of the City were combined into one unit known as the Parking System. Money derived from the sale of the bonds was to be deposited in a completely separate special fund called 'Construction Trust Fund', which as its name implies could be used only for acquisition of facilities and construction thereof, and the gross revenues of the system were to be deposited in a special fund called 'Parking System Revenue Fund'. It is with the Parking System Revenue Fund that we are concerned in this proceeding since it is the only one of the two funds that can accumulate

Page 694

a surplus if the income is greater than all payments required at any given time to be made under the law. The Construction Trust Fund was at its inception confined largely to the expenditures of the construction, except for small amounts deposited from the Fund into the State Sinking Fund to pay interest on the bonds until the system could produce revenues sufficient to take over this obligation and any left over amounts were by the Ordinances to be deposited in the Sinking Fund reserve...

To continue reading

Request your trial
20 practice notes
  • Hensley v. Erie Ins. Co., No. CC917
    • United States
    • Supreme Court of West Virginia
    • October 20, 1981
    ...This rule, although most frequently associated with the construction of statutes, State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970), also applies to contracts. Harbert v. County Court of Harrison County, 129 W.Va. 54, 64, 39 S.E.2d 177, 186 (1946); 2A Suth......
  • Sharon Steel Corp. v. City of Fairmont, No. 16349
    • United States
    • Supreme Court of West Virginia
    • July 10, 1985
    ...as to whether a municipal corporation has a power, the power must be denied.' Syllabus Point 2, State ex rel. Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970)." Syllabus Point 1, City of Fairmont v. Investors Syndicate of America, Inc., 172 W.Va. 431, 307 S.E.2d 467 3. A munic......
  • Spradling v. Hutchinson, No. 13685
    • United States
    • Supreme Court of West Virginia
    • March 13, 1979
    ...See also : Miller v. City of Morgantown, W.Va., 208 S.E.2d 780 [162 W.Va. 772] (1974) and State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 Thus, the Charleston Police Civil Service Commission cannot legally act beyond the powers bestowed upon it by statute (8-14......
  • Petition of City of Beckley to Annex, by Minor Boundary Adjustment, West Virginia Route 3 Right-of-Way Beginning at Present Corporate Limits, RIGHT-OF-WAY
    • United States
    • Supreme Court of West Virginia
    • July 11, 1995
    ...a municipal corporation has a power, the power must be denied.' Syllabus Point 2, State ex rel. [City of] Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970)." Syllabus Point 1, City of Fairmont v. Investors Syndicate of America [, Inc.], 172 W.Va. 431, 307 S.E.2d 467 8 For the r......
  • Request a trial to view additional results
20 cases
  • Hensley v. Erie Ins. Co., No. CC917
    • United States
    • Supreme Court of West Virginia
    • October 20, 1981
    ...This rule, although most frequently associated with the construction of statutes, State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970), also applies to contracts. Harbert v. County Court of Harrison County, 129 W.Va. 54, 64, 39 S.E.2d 177, 186 (1946); 2A Suth......
  • Sharon Steel Corp. v. City of Fairmont, No. 16349
    • United States
    • Supreme Court of West Virginia
    • July 10, 1985
    ...as to whether a municipal corporation has a power, the power must be denied.' Syllabus Point 2, State ex rel. Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970)." Syllabus Point 1, City of Fairmont v. Investors Syndicate of America, Inc., 172 W.Va. 431, 307 S.E.2d 467 3. A munic......
  • Spradling v. Hutchinson, No. 13685
    • United States
    • Supreme Court of West Virginia
    • March 13, 1979
    ...See also : Miller v. City of Morgantown, W.Va., 208 S.E.2d 780 [162 W.Va. 772] (1974) and State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 Thus, the Charleston Police Civil Service Commission cannot legally act beyond the powers bestowed upon it by statute (8-14......
  • Petition of City of Beckley to Annex, by Minor Boundary Adjustment, West Virginia Route 3 Right-of-Way Beginning at Present Corporate Limits, RIGHT-OF-WAY
    • United States
    • Supreme Court of West Virginia
    • July 11, 1995
    ...a municipal corporation has a power, the power must be denied.' Syllabus Point 2, State ex rel. [City of] Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970)." Syllabus Point 1, City of Fairmont v. Investors Syndicate of America [, Inc.], 172 W.Va. 431, 307 S.E.2d 467 8 For the r......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT