State ex rel. Hall v. Taylor, 12995

• Decision Date: 18 January 1971
• Docket Number: No. 12995,12995
• Parties: STATE of West Virginia ex rel. Keith W. HALL, Daniel Straight, and Paul J. Whittington v. The Honorable Frank L. TAYLOR, Judge of the Circuit Court of Kanawha County, West Virginia, and John D. Rockefeller, IV, Secretary of State of the State ofWest Virginia and Secretary of the State Building Commission of West Virginia.
• Court: West Virginia Supreme Court

Page 48

178 S.E.2d 48

154 W.Va. 659

STATE of West Virginia ex rel. Keith W. HALL, Daniel Straight, and Paul J. Whittington v. The Honorable Frank L. TAYLOR, Judge of the Circuit Court of Kanawha County, West Virginia, and John D. Rockefeller, IV Secretary of State of the State ofWest Virginia and Secretary of the State Building Commission of West Virginia.

No. 12995.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 6, 1970.

Decided Dec. 15, 1970.

Rehearing Denied Jan. 18, 1971.

Syllabus by the Court

1. To the extent that Article 6 of Chapter 5, Code, 1931, as amended and reenacted in part by Chapter 10, Acts of the Legislature, Regular Session, 1968, authorizes the issuance and sale of 'revenue bonds' for the construction of state buildings and contemplates that the principal of and the interest on the bonds shall be paid solely from a fund to be created and maintained from general revenue appropriations to be made by the legislature from year to year for payment of rent for the use and occupancy of such buildings by various state departments and agencies as lessees of office space in the buildings so constructed, the statute creates a state debt in violation of the inhibitory provisions of Section 4 of Article X of the Constitution of West Virginia. In this respect and to this extent, therefore, the statute is unconstitutional and accordingly the 'fund' which the statute undertakes to create as a source of payment of the bounds has no valid, constitutional existence.

2. 'The writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power, when the inferior court has not jurisdiction of the subject matter in controversy or, having such jurisdiction, exceeds its legitimate powers.' Point 4 Syllabus, State ex rel. Battle v. Hereford, 148 W.Va. 97 (133 S.E.2d 86).

Leo Catsonis, Charleston, and John Sibray, Charleston, of counsel, for relators.

Preiser, Greene, Hunt & Wilson, Stanley E. Preiser, L. Alvin Hunt, Charleston, for respondents.

CALHOUN, Judge.

This case involves a proceeding in prohibition instituted in this Court to prohibit further court action in eminent domain proceedings instituted in the Circuit Court of Kanawha County by The State Building Commission of West Virginia, which hereafter in this opinion may be referred to as the Building Commission or as the commission, for the purpose of acquiring fee simple title to certain real estate situated near the State Capitol in the City of Charleston, Kanawha County, for the further development of a master plan for the construction of public office buildings and related facilities to be used in connection with the State Capitol.

The relators in the prohibition proceeding, Keith W. Hall, Daniel Straight and Paul J. Whittington, are owners or lessees of certain lots or parcels of real estate located in the 1700 block of Washington Street, East, the property to which title is sought to be acquired in the eminent domain proceedings. The three relators also prosecute the prohibition proceeding as citizens, residents and taxpayers of the City of Charleston. See Spilman v. City of Parkersburg, 35 W.Va. 605, pt. 3 syl., 14 S.E. 279. The respondents in the prohibition proceeding are Honorable Frank L. Taylor, Judge of the Circuit Court of Kanawha County, and Honorable John D. Rockefeller, IV, Secretary of State, and, in that official capacity, ex officio Secretary of the Building Commission and a member thereof without 'the right to vote upon matters before the commission.'

The primary and basic question presented for decision is the constitutionality of Article 6 of Chapter 5, Code, 1931, as amended and reenacted in part by Chapter 10, Acts of the Legislature, Regular Session, 1968. The relators in the prohibition proceeding assert that the statute in question is unconstitutional in that it authorizes the issuance and sale by the Building Commission of revenue bonds in such a manner as to be violative of Section 4 of Article X of the Constitution of West Virginia, which constitutional provision is as follows:

'No debt shall be contracted by this State, except to meet casual deficits in the revenue, to redeem a previous liability of the State, to suppress insurrection, repel invasion or defend the State in time of war; but the payment of any liability other than that for the ordinary expenses of the State, shall be equally distributed over a period of at least twenty years.'

Portions of the statutory provisions involved in this case, prior to their amendment in 1966 and in 1968, were referred to in considerable detail in State ex rel. State Building Commission v. Bailey, 151 W.Va. 79, 150 S.E.2d 449. Hereafter in this opinion references will be made to the several sections of Article 6 of Chapter 5 of the Code as partially amended and reenacted in 1968.

Section 1 provides that the Building Commission shall continue 'as a body corporate and as an agency' of the State of West Virginia; that it shall consist of the governor and four additional members to be appointed by the governor by and with the advice and consent of the state senate; that all members of the commission shall be paid or reimbursed for their necessary expenses but shall receive no other compensation, except that each member appointed by the governor shall receive, in addition to necessary expenses, a per diem of $35 for each day or substantial portion of a day that he is engaged in the work of the commission; and that such expenses and per diem shall be paid solely from funds provided for under the authority of Article 6, the constitutionality of which is involved in this case.

Section 3, dealing with the powers of the commission, provides that it may sue and be sued; that it shall have power to acquire in the name of the commission 'or of the State,' by purchase or otherwise, real property necessary or convenient for its corporate purposes and to exercise 'the power of eminent domain' for such purposes; that it shall have power to make contracts and to execute all instruments necessary or convenient to effectuate the intent of and the powers granted by the statute; that the commission shall have the power to construct a building or buildings on real property which it may acquire or which may be owned by the state in the City of Charleston, as convenient as may be to the 'capitol building,' together with incidental approaches, structures and facilities; and that it shall have the power to charge rentals for all or any part of a project or building at any time financed, constructed, acquired or improved, in whole or in part, with the proceeds of the sale of bonds issued pursuant to the statute.

Section 4 provides that all moneys of the commission, from whatever source, shall be paid to the state treasurer, to be deposited by him in a separate bank account or in separate bank accounts, and that the moneys in such account or accounts shall be impressed with and subject to the lien or liens thereon in favor of the holders of bonds issued and sold pursuant to the provisions of the statute.

By Section 7, the commission is empowered to finance the cost of a project 'by the issuance of state building revenue bonds of the State, the principal of and interest on which bonds shall be payable solely from the special fund' provided for in the statute. This section provides that the bonds shall be authorized by resolution of the commission; that such bonds shall have all the qualities of negotiable instruments; that the commission may determine the form of the bonds and fix the denominations thereof; that the proceeds of the sale of the bonds shall be used solely for the payment of the cost of the project for which the bonds were issued; and that no bonds or other obligations shall be issued or incurred pursuant to the statute unless and until the legislature, by concurrent resolution, shall have approved the purpose and amount of each separate project.

Section 9 provides that the commission shall properly maintain, repair, operate, manage and control the project and fix the rates of rental.

Section 10 is as follows: 'Nothing in this article contained shall be so construed or interpreted as to authorize or permit the incurring of State debt of any kind or nature as contemplated by the provisions of the Constitution of the State of West Virginia in relation to State debt.'

Section 11 is as follows: 'It shall not be necessary to secure from any office or board not named in this article any approval or consent, or any certificate or finding, or to hold an election, or to take any proceedings whatever, either for the construction of such project, or the improvement, maintenance, operation or repair thereof, or for the issuance of bonds hereunder, except such as are prescribed by this article or are required by the Constitution of the State.'

Section 12 is as follows: 'This article being necessary for the health, welfare and convenience of the citizens of the State, it should be liberally construed to effectuate the purposes thereof.'

At the Regular Session, 1968, the Legislature adopted Senate Concurrent Resolution No. 38 which contains the following language:

'That the issuance of additional revenue bonds by the State Building Commission of West Virginia in an amount not to exceed seven million dollars is hereby approved by the Legislature, which amount, when added to the amount of eighteen million dollars heretofore authorized by House Concurrent Resolution No. 55, 1966 session of the Fifty-seventh Legislature, shall not exceed the total aggregate amount of twenty-five million dollars of revenue bonds, the proceeds of which shall be expended for the purpose of acquiring the necessary land for the construction of new office buildings and parking facilities, and for the purpose of constructing, equipping and furnishing same, in accordance with existing plans and specifications furnished to the former State Office Building Commission of West...