State ex rel. McMillion v. Stahl

• Decision Date: 25 October 1955
• Docket Number: No. 10760,10760
• Citation: 141 W.Va. 233,89 S.E.2d 693
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia, at the relation of J. E. McMILLION, v. C. R. STAHL, Chairman of the Public Service Board of The Armstrong Creek Public Service District.

Page 693

89 S.E.2d 693

141 W.Va. 233

STATE of West Virginia, at the relation of J. E. McMILLION, v. C. R. STAHL, Chairman of the Public Service Board of The Armstrong Creek Public Service District.

No. 10760.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1955.

Decided Oct. 25, 1955.

Syllabus by the Court.

Chapter 147, Acts of the Legislature, 1953, Regular Session, authorizing the creation of Public Service Districts by the County Courts of this State, defining the powers and duties of the governing boards of such districts in the acquisition, construction, maintenance, operation, improvement and extension of property supplying water and sewerage services, and authorizing the issuance of bonds of such districts payable solely from revenue to be derived from the operation of such properties, does not violate any provision of the Constitution of this State or the Fourteenth Amendment to the Constitution of the United States.

Scherer, Bowers & File, Beckley, for relator.

Paul J. Fourney, Beckley, for respondent.

LOVINS, President.

This is an original proceeding in mandamus by J. E. McMillion, relator, against C. R. Stahl, Chairman of the Public Service Board of the Armstrong Creek Public Service District, defendant. Hereinafter, McMillion will be referred to as relator, Stahl as defendant, the Public Service Board of the Armstrong Creek Public Service District as the Board and Chapter 147, Acts of the Legislature of West Virginia, 1953, Regular Session, as the statute.

The purpose of the statute as shown by the title hereinafter quoted, was to provide water and sewerage facilities in unincorporated districts. The title of the statute reads as follows: 'An act to amend chapter sixteen of the code of West Virginia, one thousand nine hundred thirty-one, as amended, by adding thereto a new article, to be designated article thirteen-a, providing for the creation of public service districts, prescribing the powers and duties of such districts in the acquisition, construction, maintenance, operation, improvement and extension of properties supplying water and sewerage services, and to authorize the issuance of bonds of such districts payable solely from the revenue to be derived from the operation of such properties.'

Section 1, states the general purposes of the statute. Section 2, authorizes the creation of the Public Service Districts by County Courts. Section 3, defines the powers of the Public Service Districts and the creation of the governing boards. Section 4 sets forth the board's procedure. Sections 5 and 6, provide for certain officers and employees and Section 7, for the acquisition and operation of the property by a district. Section 8, confers the power of eminent domain. Section 9, provides for the rates and charges to be made by the board for the services rendered. Section 10, makes provisions for the budgets of the boards. Section 11 provides for the auditing of the boards' accounts. Section 12 provides for the disbursement of the districts' funds. Section 13, authorizes the issuance of revenue bonds for the construction or acquisition of necessary property. Section 14, treats of the cost of the properties to be acquired. Section 15, sets forth certain provisions relative to the trust indenture to secure the revenue to be provided for in Section 13. Section 16, makes provision for a sinking fund. Section 17, authorizes the enforcement of the collection of service charges. Section 18, authorizes the board to enter into a contract for the operation and management of the districts' property. Section 19, creates a statutory lien on the property owned by the board to secure the payment of interest the board to secure the payment of interest authorizes the issuance of refunding revenue bonds. Section 21, directs a liberal construction of the statute and states that the statute shall 'constitute full and complete authority for the creation of public service districts and for carrying out the powers and duties of same as herein provided.'

The County Court of Fayette County seems to have carefully followed the provisions of the statute relative to creating the Armstrong Creek Public Service District and in appointing a governing board for such district. Residents of the district and property owners of property situate therein were given opportunity to appear before the County Court of Fayette County and oppose or support the creation of the district. Likewise, the Board, after appointment by the County Court of Fayette County, carefully followed the procedure outlined for the issuance of the revenue bonds here in question. The defendant does not ground any objection to the action of the County Court in creating the district, the appointment of the Board or the actions of the Board in authorizing the issuance of the bonds. He bases all of his objections on the alleged unconstitutionality of the statute under which the Court and Board acted.

It suffices to say that we have examined the procedural steps taken by the County Court and the Board with care. We can find no tenable grounds for objection to the action of either the County Court of Fayette County or the Board.

On July 11, 1955, the Board of the Armstrong Creek District met in regular session and adopted a resolution authorizing the Board to acquire a water works system for such district and provided for the issuance of water revenue bonds of such district in the amount of $175,000. The resolution provided for the payment of the bonds and interest thereon, the rights of certain holders of such bonds and the enforcement of same. The particular provisions of such resolution will be hereinafter discussed.

The Chairman of the Board, the defendant herein, has refused to sign the bonds so authorized and to perform other requisite acts to effectuate the resolution of the Board and the issuance of the bonds provided for. This proceeding seeks a writ of mandamus to compel the defendant to sign such bonds and to do all acts necessary to effect their issuance.

The objection of the defendant rests mainly, if not entirely as above stated, on the alleged unconstitutionality of the statute. A summary of his reasons for such refusal is as follows:

(1) The title of the act is insufficient and violates Section 30, Article 6 of the Constitution of this State; (2) that the provisions of the statute granting a tax exemption to the property, income and bonds of the board is in violation of Section 1 of Article 10 of the Constitution of West Virginia; (3) that the statute improperly delegates legislative power to an administrative body in violation of Section 1, Article 5 and Section 1, Article 6 of the Constitution of this State; (4) that the statute providing for liens to enforce the payment of fees, rates and charges violates the 14th Amendment of the Constitution of the United States and Sections 9 and 10 of Article 3 of the Constitution of West Virginia; (5) that the statute in granting the right of eminent domain to public service districts violates Sections 9 and 10 of Article 3 of the Constitution of this State; (6) that the statute creating a mortgage lien on the property of public service districts and authorizing the foreclosure of such lien creates a debt of public service districts without a vote of the people, in violation of Section 8, Article 10 of the Constitution of this State; (7) that the statute providing for the creation of public service districts as public corporations for special purposes and with certain prescribed powers violates Section 1, Article 11 of the Constitution of West Virginia; (8) that the provisions of the statute authorizing the County Court to make certain findings and determinations as to the feasibility of the creation of such corporations constitutes a delegation of judicial power to a County Court, in violation of Section 24, Article 8 of the Constitution of West Virginia.

It is thus seen that the questions presented by the objections and contentions of the defendant turn on the constitutionality of the statute here considered. Before discussing in detail the various contentions, we advert to a principle of constitutional law which has been long adhered to by this Court. It is stated as follows: 'Courts will never impute to the Legislature intent to contravene the Constitution of either the state or the United States, by construing a statute so as to make it unconstitutional, if such construction can be avoided, consistently with law, in giving effect to the statute, and this can always be done, if the purpose of the act is not beyond legislative power, in whole or in part, and there is no language in it expressive of specific intent to violate the organic law.' Coal & Coke Railway Co. v. Conley, 67 W.Va. 129, 67 S.E. 613, 615. In such statement, this Court was but reiterating what was held in many former opinions. See Bridges v. Shallcross, 6 W.Va. 562, 569; Shields v. Bennett, 8 W.Va. 74; Kimball v. Loughney, 70 W.Va. 765, 74 S.E. 953; Booten v. Pinson, 77 W.Va. 412, 428, 89 S.E. 985, L.R.A.1917A, 1244; State ex rel. Allen v. England, 86 W.Va. 508, 510, 103 S.E. 400; State v. Haskins, 92 W.Va. 632, 638, 115 S.E. 720; State v. Massie, 95 W.Va. 233, 120 S.E. 514; State v. Cordi, 103 W.Va. 23, 25, 136 S.E. 505; West Central Producers Co-Operative Association v. Comm'r, 124 W.Va. 81, 20 S.E.2d 797; State ex rel. Cosner v. See, 129 W.Va. 722, 42 S.E.2d 31; State v. Blevins, 131 W.Va. 350, 356, 48 S.E.2d 174; Lingamfelter v. Brown, 132 W.Va. 566, 573, 52 S.E.2d 687; Charleston Transit Co. v. Condry, 140 W.Va. ----, 86 S.E.2d 391.

From the foregoing authorities, a clear violation of the organic law must be found in the passage of the statute before it will be held unconstitutional. Where there is doubt whether the passage of such statute violates the constitution, such doubt must be resolved in favor of the validity of the statute.

Bearing in mind the foregoing principle so well established...