State ex rel. Perry v. Miller

• Decision Date: 28 January 1983
• Docket Number: No. 15655,15655
• Citation: State ex rel. Perry v. Miller, 171 W.Va. 509, 300 S.E.2d 622 (W. Va. 1983)
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Jack PERRY v. Walter N. MILLER, Dir., W.Va. Dept. of Mines, et al.

Page 622

300 S.E.2d 622

171 W.Va. 509

STATE ex rel. Jack PERRY v. Walter N. MILLER, Dir., W.Va. Dept. of Mines, et al.

No. 15655.

Supreme Court of Appeals of West Virginia.

Jan. 28, 1983.

Syllabus by the Court

1. "The Legislature has established a clear and unequivocal public policy that the Department of Mines shall have as its primary purpose 'the protection of the safety and health of persons employed within or at the mines of this state.' W.Va.Code § 22-1-2 (1981 Replacement Vol.)." Syllabus Point 4, United Mine Workers of America v. Miller, 170 W.Va. 177, 291 S.E.2d 673 (1982).

2. Where an administrative agency is given the power to license in an area that has a direct impact on the health or safety of the members of the public including employees of a given industry, such agency possesses the power to temporarily suspend such license without the necessity of holding a presuspension hearing when such suspension is necessary for health or safety reasons.

3. "Mandamus does not lie to control a [public] board ... in the exercise of its discretion, in the absence of caprice, passion, partiality, fraud, arbitrary conduct, some ulterior motive, or misapprehension of law upon the part of such board." Syllabus Point 5, in part, State ex rel. Withers v. Board of Education of Mason County, 153 W.Va. 867, 172 S.E.2d 796 (1970).

Daniel F. Hedges, Charleston, for relator.

Keith Huffman, Asst. Atty. Gen., James F. Wallington, Sp. Asst. Atty. Gen., W.Va. Dept. of Mines, Charleston, for respondents.

David L. Stuart, Preiser & Wilson, Charleston, Seldon S. McNeer, Jr., Campbell, Woods, Bagley, Emerson, McNeed &amp Herndon, Huntington, Steven C. Hanley, John R. Hoblitzell, Kay, Casto & Chaney, Arthur T. Ciccarello, Lewis, Ciccarello, Masinter & Friedbert, Charleston, for intervenors.

MILLER, Justice:

In this original mandamus proceeding, the relator Jack Perry, as a member of the Board of Appeals for the West Virginia Department of Mines, seeks to compel the Director of the Department of Mines to temporarily suspend five certified mining employees pending the outcome of a formal hearing pursuant to the procedures set out in W.Va.Code, 22-1-30.

The underlying facts arise out of a mine disaster in which five miners employed by Westmoreland Coal Company died in an explosion at the Ferrell No. 17 Mine in Boone County, West Virginia, on November 7, 1980. After investigations and reports made by the West Virginia Department of Mines and the United States Department of Labor, the Director of the Department of Mines filed charges against five mine and assistant foremen. The five were charged with neglect and/or failure to perform various statutory duties mandated by the West Virginia Coal Mine Safety Laws. Probable cause was subsequently found by the Board of Appeals, and various motions were made and heard. On October 27, 1981, the Circuit Court of Kanawha County granted an injunction to prohibit all further proceedings, upon the challenge by the foremen that certain members of the Board of Appeals should be disqualified.

The Respondent Director does not resist this mandamus but points to the fact that there is no express authority in W.Va.Code, 22-1-1, et seq., which authorizes him to temporarily suspend certificates. The five foremen who were granted leave to intervene argue that their mine certificates constitute valuable property rights such that procedural due process requirements require a hearing before the certificates can be suspended. They cite several of our own procedural due process cases ¹ as well as those from the United States Supreme Court. ²

It is important to note at the outset that the provisions of W.Va.Code, 22-1-1, et seq., relate to coal mine health and safety which regulation is well within the broad police power of the Legislature. ³ In light of this fact, we have accorded a liberal interpretation of these laws in favor of those to whose benefit they are drawn. Perry v. Miller, 166 W.Va. 138, 272 S.E.2d 678 (1980); Itmann Coal Co. v. Miller, 166 W.Va. 84, 272 S.E.2d 668 (1980); Walls v. Miller, 162 W.Va. 563, 251 S.E.2d 491 (1978). In Syllabus Point 4 of United Mine Workers of America v. Miller, 170 W.Va. 177, 291 S . E.2d 673 (1982), we stated:

"The Legislature has established a clear and unequivocal public policy that the Department of Mines shall have as its primary purpose 'the protection of the safety and health of persons employed within or at the mines of this state.' W.Va.Code § 22-1-2 (1981 Replacement Vol.)."

In Anderson & Anderson Contractors v. Latimer, 162 W.Va. 803, 257 S.E.2d 878 (1979), we upheld the constitutionality of certain provisions of the Surface Mining and Reclamation Act against the claim that the standards for authorizing an immediate cessation of operations were unconstitutionally vague and violated procedural due process concepts in not having a precessation hearing. Using due process concepts previously enunciated in Mathews v. Eldridge, 424 U.S. 319, 96 S.Ct. 893, 47 L.Ed.2d 18 (1975), and North v. West Virginia Board of Regents, 160 W.Va. 248, 233 S.E.2d 411 (1977), we concluded: "Based on Mathews and North, cessation orders temporarily halting appellants' surface mining operations without hearings are constitutionally permissible." 257 S.E.2d at 883.

Much the same reasoning was used by the United States Supreme Court in Hodel v. Virginia Surface Mining and Reclamation Association, 452 U.S. 264, 101 S.Ct. 2352, 69 L.Ed.2d 1 (1981), where in a unanimous opinion the Surface Mining Control and Reclamation Act of 1977, 30 U.S.C. § 1201, et seq., was upheld against a number of constitutional attacks. One of the claims was that the section permitting immediate cessation orders without a prior hearing violated procedural due process concepts. In rejecting this argument, the Supreme Court stated:

"Our cases have indicated that due process ordinarily requires an opportunity for 'some kind of hearing' prior to the deprivation of a significant property interest. See Parratt v. Taylor, 451 U.S. 527, 540, 101 S.Ct. 1908 [1915], 68 L.Ed.2d 420 (1981); Boddie v. Connecticut, 401 U.S. 371, 379, 91 S.Ct. 780 , 28 L.Ed.2d 113 (1971). The Court has often acknowledged, however, that summary administrative action may be justified in emergency situations.... [Citations omitted, see note 4. ⁴ ]

"... Protection of the health and safety of the public is a paramount governmental interest which justifies summary administrative action. Indeed, deprivation of property to protect the public health and safety is '[o]ne of the oldest examples' of permissible summary action. Ewing v. Mytinger & Casselberry, Inc., supra, at 599, 70 S.Ct. 870, 94 L.Ed. 1088. See Mackey v. Montrym, 443 U.S. 1, 17-18, 99 S.Ct. 2612 [2620-21], 61 L.Ed.2d 321 (1979); id., at 21, n. 1, 25, 99 S.Ct. at 2622, n. 1, [2624-25], 61 L.Ed.2d 321 (Stewart, J., dissenting); North American Cold Storage Co. v. Chicago, supra, 211 U.S. at 315-316, 29 S.Ct. at 104, 53 L.Ed. 195. Moreover, the administrative action provided through immediate cessation orders responds to situations in which swift action is necessary to protect the public health and safety." 452 U.S. at 299-301, 101 S.Ct. at 2372-73, 69 L.Ed.2d at 31.

In Mackey v. Montrym, 443 U.S. 1, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979), the United States Supreme Court similarly upheld a Massachusetts statute which authorized suspending a driver's license for three months if the driver refused a demand to take a breath-analysis test. The principal claim made was that the statute did not provide for a prehearing suspension but the Court relying on its earlier cases, including Dixon v. Love, 431 U.S. 105, 97 S.Ct. 1723, 52 L.Ed.2d 172 (1977), rejected this argument, stating:

"Here, as in Love, the statute involved was enacted in aid of the Commonwealth's police function for the purpose of protecting the safety of its people. As we observed in Love, the paramount interest the Commonwealth has in preserving the safety of its public highways, standing alone, fully distinguishes this case from Bell v. Burson, 402 U.S. , at 539, 29 L.Ed.2d 90, 91 S.Ct. 1586 ... We have traditionally accorded the states great leeway in adopting summary procedures to protect public health and safety." 443 U.S. at 17, 99 S.Ct. at 2620, 61 L.Ed.2d at 334.

We touched on the due process exception for a prehearing which is grounded on overriding public health and safety concerns or emergency conditions in North v. Board of Regents, 160 W.Va. 248, 233 S.E .2d 411 (1977), where we stated in Syllabus Point 2 that "due process [procedures] must generally be given before the deprivation occurs unless a compelling public policy dictates otherwise." This same principle was elaborated upon in Waite v. Civil Service Commission, 161 W.Va. 154, 241 S.E.2d 164 (1977), where we discussed due process concepts in civil service suspensions and in part of Syllabus Point 7 concluded:

"[U]nless the suspension arises in a situation where there is a continuing danger to persons or property or to the orderly conduct of the affairs of the agency, in which case an immediate suspension may be warranted; and in such case, the necessary notice and rudimentary hearing should follow as soon as practicable."

Although it is true that there is no express statutory authority given to the Director to temporarily suspend the certificate or license of a mine foreman, it is clear from the relevant statutes that the Director has the ultimate authority to license. ⁵ Furthermore, we have recognized that where the Legislature has delegated to a board or agency part of its police power in the protection of public health and safety, precise legislative guidelines are not required. In State v. West Virginia Racing Commission, 133 W.Va. 179, 55 S.E.2d 263 (1949), we considered the situation where the Legislature had delegated broad authority to the West Virginia Racing Commission to regulate horse racing. It in turn had promulgated a...