State ex rel. Nelson v. Ritchie

• Decision Date: 08 December 1970
• Docket Number: No. 12999,12999
• Citation: 177 S.E.2d 791,154 W.Va. 644
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Robert R. NELSON et al. v. William S. RITCHIE, Jr., Commissioner of the Department of Highways of West Virginia.

Page 791

177 S.E.2d 791

154 W.Va. 644

STATE ex rel. Robert R. NELSON et al. v. William S. RITCHIE, Jr., Commissioner of the Department of Highways of West Virginia.

No. 12999.

Supreme Court of Appeals of West Virginia.

Dec. 8, 1970.

Syllabus by the Court

1. 'Mandamus will not issue to compel a party to perform an act which he has already begun to do, and it is apparent that he will in good faith perform.' Point 2, syllabus, State ex rel. Hall v. County Court of Mercer County, 100 W.Va. 11 (129 S.E. 712).

2. 'A writ of mandamus will not be issued in any case when it is unnecessary or when, if used, it would prove unavailing, fruitless or nugatory.' Point 6, syllabus, Delardas v. Morgantown Water Commission, 148 W.Va. 776 (137 S.E.2d 426).

3. He who seeks relief by mandamus must show a clear legal right to the remedy,

L. D. Egnor, Jr., Huntington, for relators.

Anthony G. Halkias, Legal Division, Dept. of Highways, Charleston, for respondent.

HAYMOND, Judge.

In this original mandamus proceeding instituted in this Court in July 1970, the petitioners, Robert R. Nelson, Paul C. Pancake, Jr., Freda N. Paul, Hugh A. Kincaid, David J. Lockwood, Dennis White, C. M. Polan, Jr., and Michael R. Prestera, citizens, residents and taxpayers of Huntington, Cabell County, West Virginia, only one of whom, David J. Lockwood, is a holder of any of the Huntington Bridge Revenue Bonds involved in this proceeding, seek a writ to require Honorable Arch A. Moore, Jr., Governor of West Virginia, and Honorable William S. Ritchie, Jr., Commissioner of the Department of Highways of West Virginia, to establish a construction site for the Huntington East End Bridge at Lewis Hollow, which is alleged to be desired by a great majority of the citizens of Huntington, or in the alternative that this Court interpret the provision of the bond resolution and official statement involved in this proceeding to establish the area within which the department of highways may build such bridge and to require the defendants to commence immediately the design and construction of such bridge within such designated area.

Upon the amended petition and its exnibits filed September 2, 1970, this Court awarded a rule against the defendant Ritchie, returnable September 29, 1970, but refused to issue a rule against Governor Moore. By agreement of the parties and with the consent of this Court this proceeding was continued from September 29, 1970, to October 20, 1970, at which time it was submitted for decision upon the amended petition and its exhibits, the rule previously awarded, the answer of the defendant Ritchie, Commissioner of the Department of Highways of West Virginia, herein sometimes referred to as the defendant or commissioner, and the exhibits with the answer, the replication of the petitioners to the answer, which replication was subsequently withdrawn, and the briefs and oral arguments of the attorneys for the respective parties.

The material facts are not disputed and the questions presented for decision are questions of law.

Under the provisions of Section 17, Article 17, Chapter 17, Code, 1931, as amended, the State Road Commissioner of West Virginia was empowered to construct toll bridges from the proceeds of bridge bonds and to purchase lands and property necessary for the construction of such bridges and, by Section 19 of the same article and chapter, to pay the cost of such bridges by the issuance of bridge revenue bonds. By virtue of Section 23b, Article 17, Chapter 17, Code, 1931, as amended, the commissioner was authorized and empowered to combine any two or more bridges, including existing bridges and bridges to be constructed or acquired, and to pledge all or any part of the revenue derived from such combined bridges to the payment of interest and sinking fund requirements of any bonds issued in respect to such combined bridges or either of them.

By Section 1, Article 2A, Chapter 17, Code, 1931, as amended by Chapter 68, Acts of the Legislature of West Virginia, Regular Session, 1970, effective February 7, 1970, the office of State Road Commissioner was continued and designated as West Virginia Department of Highways and all the duties and responsibilities of the State Road Commissioner and the powers exercised by him were transferred to the West Virginia Department of Highways and such duties and responsibilities are to be performed by the Department of Highways through the recently created West Virginia Commissioner of Highways who is designated as the chief executive officer of that department.

On May 6, 1965, the State Road Commission of West Virginia adopted a bond resolution which authorized the issuance and sale of $16,600,000.00 in Huntington Bridge Revenue Bonds to finance the cost of the combined project of constructing improvements to the existing Huntington-Chesapeake Bridge, known as the 6th Street Bridge, of constructing a new bridge to be located across the Ohio River from the vicinity of 17th Street in Huntington, West Virginia, to U.S. Route 52 in Ohio, and of constructing and establishing a second new bridge referred to as the East End Bridge, which is involved in this proceeding, to be located in the vicinity of 24th Street to 31st Street, in Huntington, West Virginia, and across the Ohio River to Ohio State Route 7, in the vicinity of Proctorville, Ohio, together with the necessary approaches and appurtenances and the facilities and equipment necessary for the operation of such bridge. The bonds were sold on May 18, 1965, and subsequently the 17th Street Bridge was constructed as provided in the resolution and the official statement issued by the State Road Commission of West Virginia.

Article 1, Section 1.03 of the bond resolution expressly provided that the resolution constituted a contract between the State Road Commission of West Virginia and the bondholders. The official statement designated three proposed location for the East End Bridge and these proposed locations are 24th Street, 29th Street and 31st Street, in Huntington, West Virginia. The detailed financial data in the official statement is predicated upon the highest estimated construction costs of a bridge between 24th Street and 31st Street, and bridge traffic and revenue estimates and the proposed toll schedule and toll revenues are based upon the location of the East End Bridge at 24th Street, 29th Street or 31st Street. These alternate locations were determined by traffic reports made by Wilbur Smith and Associates, dated June 1961 and March 1965.

On September 17, 1965, the State Road Commission of West Virginia entered into a contract with a consulting engineering firm for the preparation of a preliminary engineering report to determine the most feasible and economic location of a bridge in the vicinity of 24th Street, 29th Street, or 31st Street, and on September 26, 1966, a preliminary engineering report by the firm for the proposed East End Bridge at 24th Street, 25th Street, 29th Street or 30th Street was received by the commission.

On January 3, 1968, the State Road Commission of West Virginia entered into an engineering agreement with the same firm for the study, design and preparation of rights of way and construction plans for the East End Bridge in the vicinity of 30th Street in Huntington, West Virginia. Subsequently during 1968 and while the design work was in progress for the East End Bridge at the proposed location in the vicinity of 30th Street, the predecessor in office of the defendant received various objections from certain individuals and groups in Huntington concerning the proposed location of the East End Bridge which caused considerable delay inasmuch as the them commissioner undertook to review and consider such objections. Many of the objecting individuals and groups requested that the bridge be located at Lewis Hollow which is 2.2 miles east of 31st Street and outside the limits of the City of Huntington and the area authorized by the bond resolution.

Application was made to the Department of Transportation of the United States Coast Guard for a permit for the location of the East End Bridge within the authorized area and by letter dated October 29, 1969, the United States Coast Guard refused the application for the permit for the stated reasons that certain letters and information available to it indicated that there was a doubt as to the ultimate location of the bridge.

The first objection to the location of the bridge in the vicinity of 24th Street to 31st Street consisted of a resolution from the Huntington Area Transportation Advisory Committee, dated April 9, 1968, which contained a request that the East End Bridge be located east of the city limits of the City of Huntington to conform with, or be made a part of, the interregional belt system; that it be redesigned for four lanes of traffic; and that steps be taken to eliminate all tolls for the use of the bridge.

As a result of these objections and requests which were submitted and joined in by some of the petitioners and other individuals associated with them, the defendant responded to the requests by informing the...