State ex rel. City of Charleston v. Sims
| Decision Date | 01 June 1949 |
| Docket Number | 10162. |
| Parties | STATE ex rel. CITY OF CHARLESTON et al. v. SIMS. |
| Court | West Virginia Supreme Court |
Submitted May 3, 1949.
Syllabus by the Court.
1. Legislative declaration of purpose in enacting law, or making an appropriation, while entitled to respect, will not be treated as conclusive, or as binding on this Court, where from other facts, conditions and circumstances, appearing on the record, or from facts and events of which we may take judicial notice, it is clear that the real purpose of the legislation or appropriation involved was different from that declared.
2. Chapter 13, Arts of the Legislature, Session of 1947 purporting to provide that from receipts of the Liquor Control Commission in excess of the operating and reserve funds provided for by law, the sum of $50,000, should, upon requisition of the Governor, be paid monthly into the State Treasury, and credited to a special fund to be established for the purpose of State payments to municipalities; and providing that the money in such fund should be apportioned by the treasurer among the incorporated municipalities of the State on the basis of population; and further providing that the amount paid to municipalities was paid for the purpose of reimbursing them for their expenditures in enforcing State laws for the protection of life and property; is unconstitutional, null and void, for the reason that it involves the granting of the credit of the State in aid of the municipalities of the State, in violation of Section 6 of Article X, of the Constitution of this State, which provides: 'The credit of the State shall not be granted to, or in aid of any county, city, township, corporation or person; nor shall the State ever assume, or become responsible for the debts or liabilities of any county, city, township, corporation or person. * * *'
3. Under subsection C, of Section 51, of Article VI of the Constitution of this State, there can be no valid appropriation of public funds by the Legislature, beyond those made in the budget bill, until after the budget bill has been finally acted upon, and then only in the manner prescribed by said subsection.
Ira J. Partlow, Atty. Gen., John J. D. Preston, Charleston, Walter F. Ball, New Martinsville, Dennis Knapp, Nitro, T. W. Peyton, Huntington, for relators.
W. C. Marland, Asst. Atty. Gen., Milton S. Koslow, Charleston, for respondent.
Blagg & White, Charleston, as amicus curiae, for Temperance League of W.Va., a corporation.
The State of West Virginia, at the relation of the City of Charleston, the Town of New Martinsville, the City of Nitro, and the City of Huntington, all municipal corporations, organized and existing under the laws of this State, and who she in behalf of themselves and all other municipal corporations of this State, invoke the original jurisdiction of this Court in mandamus, and have filed their joint petition herein seeking to compel Edgar B. Sims, Auditor of the State of West Virginia, to honor a requisition made by R. E. Talbott, Treasurer of said State, in the sum of $150,000.05, for the use and benefit of the relators and all other municipalities of the State, to be paid from a special fund in the treasury of the State, representing profits derived from the operations of the Liquor Control Commission of said State, above the amount of the authorized and required operating and reserve fund thereof, to be distributed among all the municipalities in the State, in conformity with the provisions of Chapter 13, Acts of the Legislature, 1947. Said requisition was dated April 1, 1949, and covered the sums due said municipalities, in proper proportions, under the Act aforesaid, for the third quarter of the fiscal year beginning July 1, 1948 and ending June 30, 1949.
The said requisition, while dated April 1, 1949, appears to have been presented to the auditor not later than March 30, 1949, for on that date the auditor, respondent herein, advised the treasurer, by letter, of his refusal to honor the same, and the requisition was returned to the treasurer with the notation written on the face thereof: 'Rejected and returned for reasons assigned in attached sheets', signed by Edgar B. Sims. On the requisition appears the following words and figures: 'Draw checks as per list attached, covering April 1, 1949, distribution according to Chapter 9, Acts of the Legislature, 1945, as amended and re-enacted by an Act of the Legislature, regular session, 1947', and there was attached thereto a list of all of the municipalities in the State, and a statement of the amount of money which each was entitled to receive, set opposite the official name of each, said sums aggregating $150,000.05, the amount of the said requisition.
It would serve no useful purpose to include in this opinion the letter written by the auditor to the treasurer, inasmuch as the legal points raised in said letter, affecting the supposed duty of the auditor, to honor the requisition, are set up in the answer of the respondent to the petition filed herein.
Following this action of the auditor, this proceeding was instituted. The petition, filed in this Court on April 18, 1949, alleged, among other things, the legal existence of the relators as municipal corporations; the election and qualification of the auditor; the existence of a special fund in the State Treasury, derived from profits accruing from the operation of the Liquor Control Commission of the State, in excess of the operating fund and the reserve fund required by law sufficient to permit the carrying into effect of the provisions of Chapter 13, Acts of the Legislature, 1947; the issuance of the requisition by the state treasurer on the auditor for $150,000.05, dated April 1, 1949, to be distributed, when honored, among the municipalities of the State, as provided for in said Act, and as set out in the list of said municipalities, and the statement of the amount of said fund to which each was entitled, attached to said requisition; the refusal of the auditor to honor said requisition for reasons given in auditor's letter to the treasurer, mentioned above, and which letter is copied in full in the petition aforesaid; that the reasons assigned by the auditor for his refusal to honor the requisition aforesaid were insufficient, invalid and erroneous, and that he had neglected, failed and refused to carry out, perform and render his duty under the Act of the Legislature aforesaid, and, unless required by this Court to do so, would continue to so neglect, fail and refuse; avers the direct interest of the relators and all the municipalities of the State in the matter involved, the urgent public interest therein, and the lack of an adequate remedy other than mandamus; and, after first asking for the issuance for a rule to show cause, prays that a peremptory writ in mandamus be issued compelling the auditor to honor the requisition aforesaid, and for general relief. On April 20, 1949, we awarded the rule prayed for in said petition, and set the same for hearing on May 3, 1949.
At this point, it seems advisable that the pertinent provisions of Chapter 13, Acts of the Legislature, 1947, the statute involved in this proceeding, be copied herein. The statute, with enacting clause thereof, reads:
'Be it enacted by the Legislature of West Virginia:
'That section nineteen, article three, chapter sixty of the code of West Virginia, as amended by chapter nine, acts of the Legislature, regular session, one thousand nine hundred forty-five, be amended and reenacted to read as follows:
* * *
* * *
'The amounts paid to municipalities is paid for the purpose of reimbursing the municipalities for their expenditures in enforcing state laws for the protection of life and property.
'All receipts of the commission, not otherwise disposed of by this section, shall, upon requisition of the governor, be paid monthly into the state general revenue fund.'
The answer of the respondent, filed May 2, 1949, after admitting certain delegations of the petition aforesaid, denies the right of the relators to the writ prayed for on grounds stated as follows:
'1. Said requisition was drawn upon the office of your respondent pursuant to a statute (Chapter 60, Article 3, Section 19, Code, as amended by Chapter 13, Acts of the Legislature of West Virginia, Regular Session, 1947) which your respondent believes is an unconstitutional statute, in that it violates Article VI, Section 51, subsection C of the West Virginia Constitution.
'2. That said requisition was drawn upon the office of your respondent pursuant to a statute (Chapter 60, Article 3 Section 19, Code, as amended by...
To continue reading
Request your trial