State ex rel. State Bldg. Commission v. Bailey

• Decision Date: 11 October 1966
• Docket Number: No. 12582,12582
• Citation: 150 S.E.2d 449,151 W.Va. 79
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. STATE BUILDING COMMISSION of West Virginia, a public corporation, and Hulett C. Smith, Governor and Ex-Officio member and Chairman of such Commission v. Robert D. BAILEY, Jr., Secretary of State of the State of West Virginia.

Page 449

150 S.E.2d 449

151 W.Va. 79

STATE ex rel. STATE BUILDING COMMISSION of West Virginia, a

public corporation, and Hulett C. Smith, Governor

and Ex-Officio member and Chairman of

such Commission v. Robert D. BAILEY, Jr., Secretary of State of the State of

West Virginia.

No. 12582.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 7, 1966.

Decided Oct. 11, 1966.

Syllabus by the Court

1. The powers granted and the duties imposed upon the State Building Commission of West Virginia by Chapter 8, Acts of the Legislature, Regular Session, 1966, are executive or administrative and not legislative in character and the provision of Section 1 of that statute that the president of the senate, the speaker of the house of delegates, the minority leader of the senate and the minority leader of the house of delegates shall be members of the commission is violative of Article V of the Constitution of this State in that it attempts to confer and impose executive or administrative powers and duties upon members of the Legislature and for that reason is null and void and of no force or effect.

2. In enacting the statutory provision that members of the Legislature shall be members of the State Building Commission the Legislature has attempted to confer executive or administrative powers and impose executive or administrative duties upon the legislative members of the commission which by reason of the inhibition in Article V of the Constitution of this State they can not constitutionally exercise or perform.

3. A statute enacted by a duly constituted Legislature in lawful, constitutional session, may contain both constitutional and unconstitutional provisions which in substance are distinct and separable so that some may stand and others must fall; and this is true whether or not the statute in question contains a separability clause.

4. 'A statute may contain constitutional and unconstitutional provisions which may be perfectly distinct and separable so that some may stand and others will fall; and if, when the unconstitutional portion of the statute is rejected, the remaining portion reflects the legislative will, is complete in itself, is capable of being executed independently of the rejected portion, and in all other respects is valid, such remaining portion will be upheld and sustained.' Point 6, syllabus, State v. Heston, 137 W.Va. 375 (71 S.E.2d 481).

5. Notwithstanding the invalidity of the provision of Section 1, Article 6, Chapter 5, Code, 1931, as amended, being Section 1, Chapter 8, Acts of the Legislature, Regular Session, 1966, which declares that the president of the senate, the speaker of the house of delegates, the minority leader of the senate and the minority leader of the house of delegates shall be members of the State Building Commission of West Virginia, and notwithstanding the rejection of that provision because violative of Article V of the Constitution of this State, the remaining portion of the statute is constitutional and its validity will be upheld and sustained inasmuch as that portion of the statute is distinct and separable from the rejected portion, reflects the legislative will, is complete in itself and is capable of being executed independently of the rejected portion.

Thomas B. Yost, Asst. Atty. Gen., Charleston, for relators.

C. Donald Robertson, Atty. Gen., Leo Catsonis, Asst. Atty. Gen., Charleston, for respondent.

HAYMOND, Judge:

This is an original proceeding in mandamus instituted in this Court on June 27, 1966, in which the petitioners, State Building Commission of West Virginia, a public corporation, and the Honorable Hulett C. Smith, Governor and Ex-officio member and chairman of such commission, seek a writ to require the defendant, Honorable Robert D. Bailey, Jr., Secretary of State of the State of West Virginia, to affix his signature and to attach the Great Seal of the State to a certain temporary bond certificate in the amount of $250,000.00, prepared and issued by the governor pursuant to an order of the commission at its meeting on May 17, 1966. By letter dated June 9, 1966, the defendant declined and refused to perform the foregoing acts for the stated reason that the statute authorizing such certificate, Senate Bill No. 42, enacted by the Legislature at its regular session, 1966, in effect from its enactment on February 9, 1966, is unconstitutional as violative of Article V of the Constitution of this State.

Upon the petition and its exhibits this Court issued a rule returnable September 7, 1966, at which time the defendant appeared and filed his written demurrer and answer to the petition. The answer admits the material facts set forth in the petition and on the return day of the writ this proceeding was submitted for decision upon the foregoing pleadings and the written briefs of the attorneys for the respective parties.

The statute, the constitutionality of which is challenged in this proceeding, introduced as Senate Bill No. 42, is Chapter 8 of the Acts of the Legislature, Regular Session, 1966, and amends and reenacts Sections 1, 2, 3 and 7, Article 6, Chapter 5, of the Code of West Virginia, 1931, as amended.

Section 1 provides that the State Office Building Commission of West Virginia, previously created by the original statute, Chapter 43, Acts of the Legislature, Regular Session, 1939, shall continue in existence but shall be known and designated as the State Building Commission of West Virginia after the effective date of the statute and shall continue as a body corporate and as an agency of the State. This section also provides that the commission shall consist of the governor, the attorney general, the treasurer, the auditor, the commissioner of agriculture, the secretary of state, the president of the senate, the speaker of the house of delegates, the minority leader of the senate and the minority leader of the house of delegates, and that the governor shall be the chairman and the secretary of state shall be the secretary of the commission.

Section 2 defines the words commission, bonds, project, cost of project, rent and rental.

Section 3 contains twelve specific grants of power and authority to the Commission, among which are the power to sue and be sued; to acquire in the name of the commission or of the state, by purchase or otherwise, real property or rights or easements necessary or convenient for the corporate purposes of the commission; to acquire, hold and dispose of personal property for its corporate purposes; to make contracts and to execute all instruments necessary or convenient to exercise the powers of the commission; to construct a building or buildings on real estate acquired or owned by it in the City of Charleston; to acquire and construct a warehouse in Kanawha County for the West Virginia Alcoholic Beverage Control Commission; to acquire or construct buildings and additions to buildings for the care of patients, guests and inmates at hospitals under the jurisdiction and supervision of the department of health and at institutions under the jurisdiction and supervision of the commissioner of public institutions and to formulate plans and programs for the ordered and timely capital improvements of all such hospitals and institutions and state capital buildings; to charge rentals for the use of any of its projects; and to issue negotiable bonds for the purpose of financing its projects.

Section 7 empowers the commission to raise the cost of a project by the issuance of state revenue bonds payable solely from a special fund provided by the statute, such bonds to bear interest at the rate of not more than 4%, payable semi-annually and to mature in not more than 25 years from their date, in denominations to be determined by the commission, and to be exempt from taxation by the State or any county or municipality within the State and provides that the amount of all such bonds at any time outstanding for all authorized projects shall not exceed the sum of $25,000,000.00, and that no such bonds shall be issued unless and until approved by concurrent resolution of the Legislature.

From the foregoing provisions, it is manifest that the principal object of the statute is to provide for the construction of buildings for specified purposes and to provide for the payment of the designated projects by the issuance and sale of the bonds authorized by the statute.

The defendant attacks the constitutionality of the statute on the specific ground that the commission is composed of members of the executive and the legislative departments of the government in violation of the provisions of Article V of the Constitution of this State.

The petitioners assert the constitutionality of the statute but insist that if the provision which relates to the membership of the commission is unconstitutional the remaining portions of the act, being separable, constitute a valid and constitutional statute.

Article V of the Constitution of this State, which has been considered by this Court in many cases, declares that 'The Legislative, Executive and Judicial Departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the Legislature.'

That language is clear and free from ambiguity and its requirement of the separation of the powers of government must be strictly enforced.

In an early case this Court declared that the legislative, executive and judicial departments of government must be kept separate and distinct and that each must be protected in its legitimate sphere of action. State ex rel. Miller v. Buchanan, 24 W.Va. 362. It has also said that no question can be raised as to the plain meaning of the Article, State v. Huber, 129 W.Va. 198, 40 S.E.2d 11, 168 A.L.R. 808, and that its plain language calls not for...