State ex rel. Dyer v. Sims

• Citation: 134 W.Va. 278,58 S.E.2d 766
• Decision Date: 12 April 1950
• Docket Number: No. 10254,10254
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. DYER et al. v. SIMS.

Page 766

58 S.E.2d 766

134 W.Va. 278

STATE ex rel. DYER et al. v. SIMS.

No. 10254.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 14, 1950.

Decided April 4, 1950.

Dissenting Opinion April 12, 1950.

Syllabus by the Court.

1. The title of an act of the Legislature which defines the purpose thereof and ends with the phrase 'and providing for the carrying out of said compact', provides sufficient index to the purposes of the act, and is not insufficient because it fails to detail the methods by which the act is to be made effective.

2. An act of the Legislature which shows a clear intent to provide for the abatement and control of pollution in the streams of the State, and appropriates public funds to effect the same, will be interpreted as an act and appropriation for a public purpose.

3. The Legislature of this State, in the proper exercise or delegation of the police power of the State, cannot bind future Legislatures in respect to the use of such power.

4. The Legislature of this State does not possess the power to grant or delegate, in perpetuity, the police power of the State to any public agency of the State, or to an agency, board or commission set up by this State in conjunction with other states and the Government of the United States.

5. Under Section 4, Article X, of the Constitution of this State, the Legislature is without power to create an obligation to appropriate funds, for a purpose not mentioned in said section, by future Legislatures. Such legislation, if otherwise valid, would be void under said section, as creating a debt inhibited thereby.

6. Chapter 38, Acts of the Legislature, 1939, purporting to authorize this State to become a party to the Ohio River Valley Water Sanitation Commission is invalid, because the Legislature in enacting the same, and in delegating a part of the police power of the State to the said commission, exceeded its legitimate powers; and an act appropriating public funds in the aid of such commission constitutes an unwarranted exercise of legislative power.

John W. Daniel, Huntington, Leonard A. Weakley, Cincinnati, Ohio, William C. Marland, Atty. Gen., Thomas J. Gillooly, Ass't. Atty. Gen., for petitioners.

Charles C. Wise, Charleston, for respondent.

FOX, Judge.

The Legislature of this State, at its 1949 Session, c. 9, made an appropriation of $12,250 as a contribution to the Ohio River Valley Water Sanitation Commission for each of the two fiscal years, beginning July 1, 1949 and July 1, 1950. A requisition to make such appropriation effective for the current fiscal year was made upon Edger B. Sims, Auditor of the State of West Virginia, and refused by him. This proceeding in mandamus is instituted in this Court to compel the said auditor to honor the requisition so made.

This proceeding was instituted by the State of West Virginia, at the relation of Dr. N. H. Dyer and W. W. Jennings, commissioners for the State of West Virginia to the Ohio River Valley Water Sanitation Commission; D. Jackson Savage, Chairman of the State Water Commission of West Virginia; and Dr. N. H. Dyer, W. W. Jennings, Dan B. Fleming and Dr. C. F. McClintic, members of the State Water Commission.

The State Water Commission of the State of West Virginia was created by Chapter 14, Acts of the Legislature, 1929, and by that Act it was provided that such commission should consist of the Commissioner of Health, the Chairman of the Public Service Commission of West Virginia, and the Chairman of the West Virginia Game and Fish Commission, and their successors in office. The Act was amended by Chapter 6, Acts of the Legislature, Regular Session, 1933; by Chapter 102, Acts of the Legislature, Regular Session, 1945, by which it was provided that the State Water Commission should consist of the Commissioner of Health, the Chairman of the West Virginia Game and Fish Commission, and their successors in office, and three others to be appointed by the Governor with the advice and consent of the Senate; and further amended, in respect to the definitions contained in Section 1 of the original Act, by Chapter 126, Acts of the Legislature, Regular Session, 1947. Therefore, the State Water Commission, at the date of the institution of this proceeding, was made up of its chairman, D. Jackson Savage, Dr. N. H. Dyer, State Health Commissioner, C. F. McClintic, Chairman of the West Virginia Game and Fish Commission, W. W. Jennings and Dan B. Fleming. The general purpose of the creation of the State Water Commission was to provide against the pollution of the streams of the State, and it would serve no useful purpose to further define the duties of that commission.

By reason of the geographical location of the State of West Virginia and other states, in relation to the Ohio River and its tributaries, a movement was inaugurated as early as 1929, the purpose of which was to promote a compact between the several states whose territories, in whole or in part, were drained by the Ohio River and its tributaries, for the purpose of the abatement and prevention of the pollution thereof. As a result of this movement, what is termed the Ohio River Valley Water Sanitation Compact was prepared for execution by the respective states. The approval of the Congress of the United States, as required by Section 10 of Article I of the Constitution of the United States, was later obtained. To make effective this compact on the part of the State of West Virginia, the Legislature of said State, by Chapter 38, Acts of the Legislature, 1939, enacted a statute, Section 1 of which reads: 'The following Ohio River Valley Water Sanitation Compact, which has been negotiated by representatives of the states of Illinois, Indiana, Kentucky, New York, Ohio, Pennsylvania, Tennessee and West Virginia, is hereby approved, ratified, adopted, enacted into law, and entered into by the state of West Virginia as a party thereto and signatory state, namely: * * *.'

Then followed the proposed compact in full. It was provided by the Act aforesaid that the same should take effect and become operative, and the compact to be executed for and on behalf of the State of West Virginia only from and after the approval, ratification, adoption and entering into by the States of New York, Pennsylvania, Ohio and Virginia. It appears from relators' petition filed herein that the said compact was duly executed, by the states last mentioned above and others, on June 30, 1948, and that it had theretofore received the consent of the Congress of the United States to the execution thereof, the form of the compact apparently having been presented to the Congress in advance of its execution by the states.

Section 2 of Chapter 38, Acts of the Legislature, 1939, aforesaid, provides that there should be three members of the Ohio River Valley Water Sanitation Commission from the State of West Virginia, and that the Governor, by and with the advice and consent of the Senate, should appoint two persons as two of such commissioners, each of whom should be a resident and citizen of this State. It then provided that one of the three commissioners from this State should be the Commissioner of Health ex officio, and his successor in office.

Section 3 of the Act provided that:

'There is hereby granted to the commission and commissioners thereof all the powers provided for in the said compact and all the powers necessary or incidental to the carrying out of said compact in every particular. * * *

'The circuit courts of this state are hereby granted the jurisdiction specified in article nine of said compact, and the attorney general or any other law-enforcing officer of this state is hereby granted the power to institute any action for the enforcement of the orders of the commission as specified in said article nine of the compact.'

By Section 5 of the Act it is provided: '* * * There shall be appropriated to the commission out of any moneys in the state treasury unexpended and available therefor, and not otherwise appropriated, such sums as may be necessary for the uses and purposes of the commission in carrying out the provisions of this act and the payment of the proper proportion of the state of West Virginia of the annual budget of the 'Ohio River Valley Water Sanitation Commission' in accordance with article ten of said compact.'

It will appear from the foregoing quotations that reference must be had to the terms of the compact proposed to be entered into under the statute aforesaid. The purpose of the compact is stated to be the abatement and control of pollution in said river and its tributaries. Article 1 of the Act pledges each of the signatory states to faithful cooperation in control of future pollution, and in the abatement of existing pollution from the rivers, streams and waters of the Ohio River basin which flow through, into or border on any of such signatory states; and to make effective such purposes, agreed to enact necessary legislation to enable each such state to place and maintain the waters of said basin in a satisfactory sanitary condition, available for safe and satisfactory use as public and industrial water supplies after reasonable treatment, and suitable for recreational usage, capable of maintaining fish and other aquatic life, free from unsightly or malodorous nuisances due to floating solids or sludge deposits, and adaptable to such other uses as might be legitimate. Article IV provides that the commission should consist of three commissioners from each state to be selected as the laws of such state might provide, and three commissioners representing the United States to be appointed by the President of the United States, or in such other manner as might be provided by the Congress. Article V provides for the election of a chairman of the commission; for the employment of necessary legal and clerical assistance; requires an annual report by the commission of its activities to the governor of each state, and the...