State ex rel. County Court of Marion County v. Demus

• Citation: 148 W.Va. 398,135 S.E.2d 352
• Decision Date: 24 March 1964
• Docket Number: No. 12309,12309
• Court: Supreme Court of West Virginia
• Parties: . Joan E. DEMUS, Clerk, etc. Supreme Court of Appeals of West Virginia

Page 352

135 S.E.2d 352

148 W.Va. 398

STATE ex rel. COUNTY COURT OF MARION COUNTY, a Corporation, v. Joan E. DEMUS, Clerk, etc.

No. 12309.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 25, 1964.

Decided March 24, 1964.

Syllabus by the Court

Chapter 78, Acts of the Legislature, Regular Session, 1963, the 'Industrial Development Bond Act', is not in contravention of Sections 1, 6 and 8 of Article X or Sections 9 and 10 of Article III of the Constitution of this State or of the Fourteenth Amendment to the Constitution of the United States.

Amos, Amos & Webb, Hays Webb, Frank C. Mascara, Pros. Atty., Fairmont, Caldwell, Trimble & Mitchell, John T. Trimble, New York City, for relator.

Thomas J. Whyte, Fairmont, for respondent.

BROWNING, Judge:

In this original proceeding in mandamus, and in the similar proceeding of State ex rel. County Court of Mineral County v. Bane, W.Va., 135 S.E.2d 349, a determination of the constitutionality of Chapter 78, Acts of the Legislature, Regular Session, 1963, known as the 'Industrial Development Bond Act' is sought.

The pertinent provisions of the act may be summarized as follows:

Section 2 makes certain legislative findings, among them, that the general welfare of the citizens will be promoted by the establishment of industrial plants and that the means authorized for the promotion of such plants are, as a matter of public policy, for a public purpose.

Section 3 defines 'industrial plant' to mean any '* * * site, structure, building, fixtures, machinery, equipment, and related facilities, including both real and personal property or any combination thereof * * * suitable as a factory, mill, shop, processing, assembly, manufacturing, or fabricating plant * * *.

Section 4 empowers any county or municipality to acquire one or more 'industrial plants'; to lease such plants to others, upon such terms as it may deem advisable; and to issue revenue bonds to defray the cost of acquisition, whether by construction, purchase or exchange.

Section 5 provides that any plant acquired by a county shall be located within the county and that any plant acquired by a municipality may be located within or without the bounds of the municipality, so long as it is within the county, but shall not be located within the bounds of another municipality without the other's consent.

Section 7 provides that revenue bonds issued shall be signed by the president and attested by the clerk of the county court under the seal of the court, and shall be payable out of revenues derived from such industrial plant; shall never constitute an indebtedness of the county, or municipality, within the meaning of any constitutional provision or statutory limitation; and shall never constitute or give rise to a pecuniary liability nor be a charge against the general credit or taxing powers of the issuing body.

Section 13 restricts a county court or municipality from any payment out of its general funds, or otherwise contributing, to the cost of acquiring or constructing such plant, and from levying any taxes for such purpose, except that preliminary expenses may be paid out of any surplus, which shall, in turn, be reimbursed out of the proceeds of the sale of the bonds.

Section 15 exempts the bonds, and income therefrom, from taxation, except inheritance, estate and transfer taxes, and exempts the real and personal property acquired by a county or municipality to be leased to an industrial plant from taxation by the state, county, city or other levying body, as public property, so long as it is owned by the county or municipality.

Section 16 provides that the article shall not be construed as requiring an election prior to the issuance of bonds.

Section 18 relates to severability.

In the instant proceeding, the petition identifies the parties and alleged the adoption of a resolution by the County Court of Marion County authorizing: the acquisition of a building site, the construction of an industrial building thereon and the leasing thereof; the issuance of $1,750,000.00 Industrial Development Bonds to finance the same; prescribing the form of a mortgage and deed of trust to secure the bonds; and the execution of the lease, mortgage and deed of trust, all of which was done; however the clerk of the county court has refused to attest the bonds so prepared or to affix the county seal and relator prays for a writ of mandamus compelling the clerk to do so.

Exhibits filed with the petition disclose that the 'industrial plant' to be acquired would be leased to Randco, Inc., a West Virginia corporation, which has an option to purchase the office furniture production line of Remington Rand Systems Division of Sperry Rand, Inc., for a term of twenty-five years, with rights to renew for fifty one-year periods, and the option to purchase at any time after ten years upon payment of the outstanding indebtedness plus $5,000.00.

A rule to show cause why the writ should not be granted was issued February 10, 1964, returnable February 25, 1964, at which time respondent demurred on the grounds that Chapter 78 is unconstitutional under the provisions of Sections 8, 6 and 1 of Article X of the constitution of this state in that it, respectively, authorizes the issuance of bonds without the prior approval of the electorate; authorizes the indirect granting of the credit of the state to a private corporation; and, exempts from taxation property held by the county court for profit and the interest of the lessee in such property. Respondent also answered admitting the facts alleged in the petition, but again asserted the unconstitutionality of the act for the reasons set forth in her demurrer.

Perhaps the most solemn duty that this Court is called upon to perform is the determination of whether an act of the legislature is consistent with the provisions of the constitution of this state and the constitution of the United States and therefore either valid or invalid, depending upon whether it meets or fails to meet such a test. Article V, Section 1, of the constitution of this state provides that: 'The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.' This Court has held that the plain meaning of this article is such that it calls for obedience not interpretation or construction. State ex rel. Richardson v. County Court of Kanawha County, 138 W.Va. 885, 78 S.E.2d 569. In the early case of State ex rel. Miller v. Buchanan, 24 W.Va. 362, this Court stated that by express language used in Article V of the constitution the legislative, executive and judicial departments of the government must be kept separate and distinct. The courts of this state are by this article forbidden to perform administrative duties. Sims v. Fisher, 125 W.Va. 512, 25 S.E.2d 216. Furthermore, the courts of this state are forbidden by this article to exercise legislative authority of any kind. Sutherland v. Miller, 79 W.Va. 796, 91 S.E. 993, L.R.A.1917D, 1040. Neither the governor nor any other official of the executive branch of the government may perform a legislative function. State v. Mounts, 36 W.Va. 179, 14 S.E. 407, 15 L.R.A. 243. Consistent with its holdings as to the power conferred upon officials of the executive and judicial branches of the government it has been held that no judicial authority is conferred upon the legislature and that such body is forbidden to exercise judicial authority thereunder. West Virginia State Bar v. Earley, 144 W.Va. 504, 109 S.E.2d 420; In re Application for License to Practice Law, 67 W.Va. 213, 67 S.E. 597; Ex parte Caldwell, 4 Cir., 138 F. 487. However, in the case of Wheeling Bridge & T. Railway Co. v. Paull, 39 W.Va 142, 19 S.E. 551, this Court held that while the constitution separated the functions of government into three distinct parts that it also, after a general declaration of this doctrine, welded these departments into a harmonious whole for the preservation of the largest freedom of individual rights consistent with the general welfare.

A review of the history of the decisions of the Supreme Court of the United States determining its power under the division of powers provision of the constitution of the United States and of the decisions of this Court construing and interpreting power conferred upon it by division of powers provisions of the constitution of this state is interesting indeed. It has been said that the Supreme Court of the United States under the strong leadership of Chief Justice Marshall determined the great powers conferred upon that Court by the constitution of the United States and that only from that time forward has that Court exercised powers equal to those conferred upon the executive and legislative branches of the federal government. In interpreting the provisions of Article VI, Section 39, this Court has held that the powers granted to the legislature therein were conclusive and not subject to judicial review. Wooddall v. Darst, 71 W.Va. 350, 77 S.E. 264, 80 S.E. 367, 44 L.R.A., N.S., 83. However, from that position of relative impotency this Court receded and in the case of Brozka v. County Court, 111 W.Va. 191, 160 S.E. 914, amplified and distinguished the Wooddall case and held that the questions under that section were for the legislature only if its disregard of that constitutional provision were not 'clear and palpable'. There can be no doubt of the power of this Court to declare invalid an act of the legislature that it finds in plain contravention of a provision of the constitution of this state. This power was last exercised in the very recent case of Robertson, et al. v. Hatcher, et al., W.Va., 135 S.E.2d 675 (decided February 11, 1964), wherein this Court held an act of the...