State ex rel. Kanawha County Bldg. Commission v. Paterno

• Decision Date: 22 March 1977
• Docket Number: No. 13805,13805
• Court: West Virginia Supreme Court
• Parties: The STATE of West Virginia ex rel. of the KANAWHA COUNTY BUILDING COMMISSION, a Public Corporation of the State of West Virginia v. Vincent M. PATERNO, President of the Kanawha County Building Commission.

Page 332

233 S.E.2d 332

160 W.Va. 195

The STATE of West Virginia ex rel. of the KANAWHA COUNTY BUILDING COMMISSION, a Public Corporation of the State of West Virginia v. Vincent M. PATERNO, President of the Kanawha County Building Commission.

No. 13805.

Supreme Court of Appeals of West Virginia.

March 22, 1977.

Syllabus by the Court

1. "When the constitutionality of a statute is challenged, every reasonable construction must be resorted to by the courts to sustain its validity and any reasonable doubt must be resolved in favor of the constitutionality of the legislative act in question." Syllabus, point 1, State ex rel. West Virginia Housing Development Fund v. Waterhouse, W.Va., 212 S.E.2d 724 (1974).

2. "A legislative determination of what is a public purpose will not be interfered with by the courts unless the judicial mind conceives it to be without reasonable relation to the public interest." Syllabus, point 7, State ex rel. West Virginia Housing Development Fund v. Waterhouse, W.Va., 212 S.E.2d 724 (1974).

3. A legislative declaration that a state, county or municipal debt is not created by a statute is not conclusive or binding on a court. Whether such a debt is created by the statute is a judicial question, not a question for legislative determination.

4. "A constitutional amendment, as the last word from the people on a subject under consideration, should be given controlling effect where there is irreconcilable conflict between it and other constitutional provisions, but no such effect should be given where it and other provisions of the Constitution may be read together and harmonized without destroying the effect and purpose of any of them." Syllabus, point 3, Berry v. Fox, 114 W.Va. 513, 172 S.E. 896 (1934).

5. When the president of a public corporation, the Kanawha County Building Commission, refuses to execute an agreement between the public corporation and the County Commission of Kanawha County because of the president's expressed belief that some aspects of the transaction contravene provisions of the West Virginia Constitution, and this Court finds and holds that the statutes involved and the governmental action pursuant to the statutes integrated in the transaction are constitutional, it becomes the ministerial duty of the president to execute the agreement as authorized and directed by the public corporation.

6. "Mandamus lies to require the discharge by a public officer of a nondiscretionary duty." Syllabus, point 3, State ex rel. Greenbrier County Airport Authority v Hanna, 151 W.Va. 479, 153 S.E.2d 284 (1967).

Jackson, Kelly, Holt & O'Farrell, James K. Brown, Lee O. Hill, Gregory R. Gorrell, Charleston, for relator.

Goodwin, Goodwin, Bryan & Lobert, Joseph R. Goodwin, Stephen P. Goodwin, Charleston, for respondent.

McGRAW, Justice:

Petitioner, Kanawha County Building Commission, invokes the original mandamus jurisdiction of this Court, praying for the issuance of a peremptory writ of mandamus commanding the respondent, Vincent M. Paterno, as President of the Kanawha County Building Commission, to forthwith execute an agreement, dated August 25, 1976, between the County Commission of Kanawha County and said Building Commission, whereby the Building Commission would construct a county judicial annex building to be leased to the said County Commission on terms stated in and pursuant to provisions of the agreement. W.Va.Constitution, Article VIII, § 3; Rule XVIII, Rules of Practice in the Supreme Court of Appeals. Respondent has demurred and filed his answer to petitioner's application for the writ. Petitioner's verified application sets forth circumstances which warrant invocation of the original jurisdiction of this Court instead of applying for the writ in the Circuit Court of Kanawha County, one of the beneficiaries of the projected county judicial annex contemplated in this litigation. Petitioner also avers that the application "raises only issues of law and not issues of fact and the taking of evidence will not be necessary for a proper disposition" of this cause.

Paragraph 17 of petitioner's application asserts:

"The execution of the aforesaid Agreement by Respondent is an action which the Building Commission had the clear legal right and power to authorize and direct said Respondent to perform and is a purely ministerial act involving no exercise of discretion by said Respondent."

In Paragraph 17 of respondent's answer, he states:

"The Respondent, upon information and belief, denies that the Kanawha County Building Commission can lawfully authorize and direct the execution of the agreement between the Building Commission and the Kanawha County Commission whereby the Building Commission would be obligated to construct a proposed Judicial Annex and thereafter lease the Judicial Annex to the County Commission, and whereby, pursuant to such agreement, the County Commission will dedicate and pledge all monies theretofore and thereafter deposited in the County Coal Severance Tax Revenue Fund solely to the payment of rentals to the Building Commission for the leasing of the Judicial Annex; however, if the statute in question (Chapter 11, Article 13, § 2-1 of the Code of West Virginia, 1931, as amended) and if each and all of the determinations made and the actions authorized and directed to be taken by and pursuant to the August 25, 1976, Order are valid and in full conformity with all the requirements of the laws and the Constitution of the United States of America, then he admits the allegations of Paragraph No. 17 and further admits that the Building Commission has the clear right to authorize and direct him to execute the aforesaid agreement between the Building Commission and the County Commission and that he has the clear ministerial duty to execute said agreement as directed." ^*

The pleadings and the briefs of counsel well define the legal issues primarily constitutional issues to be resolved.

The County Building Commission law was enacted as Chapter 11, Acts of the Legislature, Regular Session of 1968, and is now W.Va. Code, Chapter 8, Article 33, as last amended in 1976. Section 4 defines the powers and authority of a building commission in the following language:

"Each commission shall have plenary power and authority to:

(a) Sue and be sued;

(b) Contract and be contracted with;

(c) Adopt, use and alter a common seal;

(d) Make and adopt all necessary, appropriate and lawful bylaws and rules and regulations pertaining to its affairs;

(e) Elect such officers, appoint such committees and agents and employ and fix the compensation of such employees and contractors as may be necessary for the conduct of the affairs and operations of the commission;

(f) (1) Acquire, purchase, own and hold any property, real or personal, and (2) acquire, construct, equip, maintain and operate public buildings, structures, projects and appurtenant facilities, of any type or types for which the governmental body or bodies creating such commission are permitted by law to expend public funds (all hereinafter in this article referred to as facilities);

(g) Apply for, receive and use grants-in-aid, donations and contributions from any source or sources including but not limited to the United States of America, or any department or agency thereof, and accept and use bequests, devises, gifts and donations from any source whatsoever;

(h) Sell, encumber or dispose of any property, real or personal;

(i) Issue negotiable bonds, notes, debentures or other evidences of indebtedness and provide for the rights of the holders thereof, incur any proper indebtedness and issue any obligations and give any security therefor which it may deem necessary or advisable in connection with exercising powers as provided herein;

(j) Raise funds by the issuance and sale of revenue bonds in the manner provided by the applicable provisions of article sixteen ( § 8-16-1 et seq.) of this chapter, without regard to the extent provided in section five ( § 8-33-5) of this article, to the limitations specified in said article sixteen, it being hereby expressly provided that for the purpose of the issuance and sale of revenue bonds, each commission is a "governing body" as that term is used in said article sixteen only;

(k) Subject to such reasonable limitations and conditions as the governmental body or all of the governmental bodies creating and establishing such building commission may prescribe by ordinance or by order, exercise the power of eminent domain in the manner provided in chapter fifty-four ( § 54-1-1 et seq.) of this Code for business corporations, for the purposes set forth in subdivision (f) of this section, which purposes are hereby declared public purposes for which private property may be taken or damaged;

(l) Lease its property or any part thereof, for public purposes, to such persons and upon such terms as the commission deems proper, but when any municipality or county commission is a lessee under any such lease, such lease must contain a provision granting to such municipality or county commission the option to terminate such lease during any fiscal year covered thereby; and

(m) Do all things reasonable and necessary to carry out the foregoing powers."

Respondent, as President of the Kanawha County Building Commission, in paragraphs 1, 2, 3 and 4 of his demurrer, and in paragraphs 18-a, 18-b, 18-c and 18-d of his answer, bases his refusal to execute the agreement on the following four propositions of law:

"1. The acquisition and construction by the Building Commission of a Judicial Annex through the issuance of bonds payable from revenues derived from Coal Severance Tax would create a prohibited indebtedness of the State; and accordingly the provisions of Chapter 11, Article 13, Section2-1 of the West Virginia Code which would authorize and empower the County Commission of Kanawha County to expend revenues collected from the Coal Severance Tax for 'such public purposes as the County...