State ex rel. County Court of Mineral County v. Bane, 12301

• Decision Date: 24 March 1964
• Docket Number: No. 12301,12301
• Citation: 135 S.E.2d 349,148 W.Va. 392
• Court: West Virginia Supreme Court
• Parties: . v. John H. BANE, as President, etc., et al. Supreme Court of Appeals of West Virginia

Page 349

135 S.E.2d 349

148 W.Va. 392

STATE ex rel. the COUNTY COURT OF MINERAL COUNTY, a Corporation, et al. v. John H. BANE, as President, etc., et al.

No. 12301.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1964.

Decided March 24, 1964.

Syllabus by the Court

1. '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.' Syl., State ex rel. County Court of Marion County v. Demus, W.Va., 135 S.E.2d 352.

2. A building, to be used as a warehouse as an extension of, and in addition to, an existing manufacturing plant, is within the scope of Chapter 78, Acts of the Legislature, Regular Session, 1963.

3. The only territorial restriction upon a county in the acquisition of an industrial plant under the provisions of the Industrial Development Bond Act is that such plant must be located within the geographical boundaries of the county.

4. Under the provisions of The Industrial Development Bond Act, a governmental body may grant an option to purchase an industrial plant to the lessee thereof upon such terms and conditions as the governing body may deem advisable.

Jackson, Kelly, Holt & O'Farrell, F. Paul Chambers, James K. Brown, Charleston, C. Reeves Taylor, Pros. Atty., Mineral County, Keyser, for relators.

E. Nobles Lowe, New York City, Blundon & Hart, Joseph A. Blundon and Henry Clay Hart, Jr., Keyser, for amicus curiae for W. Va. Pulp and Paper Co., a Corp.

Spilman, Thomas, Battle & Klostermeyer, Howard R. Klostermeyer, Charleston, amicus curiae for W. Va. Chamber of Commerce and W. Va. Bankers Assn.

Rogers & Hott, N. Howard Rogers, Donald C. Hott, Keyser, for respondents.

BROWNING, Judge.

In this original proceeding in mandamus the County Court of Mineral County is seeking to uphold the constitutionality of Chapter 78, Acts of the Legislature, Regular Session, 1963, the pertinent provisions of which are stated in the companion proceeding styled State ex rel. County Court of Marion County v. Demus, W.Va., 135 S.E.2d 352, decided herewith. Pursuant to the act petitioner has authorized the issuance of $500,000 in bonds, the proceeds whereof are to be used to purchase a site in the City of Piedmont, Mineral County, West Virginia, from West Virginia Pulp and Paper Company, a corporation, and to erect a building thereon to be thereafter leased to West Virginia Pulp and Paper Company to be used as a warehouse as an extension of and in addition to its manufacturing plant which is located partly within Piedmont and Beryl, Mineral County, West Virginia, and partly in Luke, Allegheny County, Maryland. West Virginia Pulp and Paper is to purchase all of the bonds and will have the option to purchase the property, during the term of the lease upon payment of 104% of the outstanding indebtedness, or, at the expiration of the term, upon the payment of $1,000.00.

The president and clerk of the county court refused to sign and attest the bonds and to affix the county seal and, pursuant to the rule issued by this Court, demurred and answered asserting the act to be unconstitutional because in contravention of the following sections of the constitution of this state and the United States: (1) Art. X, Sec. 1; (2) Art. X, Sec. 6; (3) Art. X, Sec. 8; (4) Art. III, Secs. 9 and 10; and (5) Art. XIV, Sec. 1, Const. U.S.; all of which contentions were held to be untenable in the Demus proceeding. However, three questions are raised herein which are not answered in that proceeding. They are: (1) A warehouse is not an industrial plant within the meaning of the act; (2) the relator county court is not authorized to exercise powers under the act within the corporate limits of a municipality even though such municipality lies within the geographical boundaries of the county; and (3) the consideration of $1,000.00, for which the lessee may purchase the plant at the expiration of the lease, is only nominal.

(1) Section 4 of the act empowers county courts '(1) [t]o acquire, whether by purchase, construction, or gift, one or more industrial plants, or additions thereto * * *.' (Italics supplied.) Section 4(3) of the act authorizes the issuance of revenue bonds to defray the cost of acquiring '* * * an industrial plant, or an addition, extension, or improvement thereto * * *.' (Italics supplied.) Upon a careful consideration of the language used in the act and of the agreement approved by a majority of the members of the county court, this Court does not find a distinction between the building to be erected under that lease agreement and the factory to be erected in Marion County in the Demus case.

(2) The only territorial restriction imposed upon the securing of an industrial site by a county for the erection of a factory thereon by the act is the provision in section five that it '* * * shall be located within the county * * *.' The record shows that the county court has secured the approval of the City of Piedmont, Mineral County, wherein this industrial building is to be located, although it is the view of this Court that such approval would not have been necessary.

(3) Finally, the respondents urge in their demurrer that the proposed grant by the county court to the lessee, West Virginia Pulp and Paper Company, of an option to purchase the industrial...