State ex rel. State Line Sparkler of WV, Ltd. v. Teach

• Decision Date: 24 June 1992
• Docket Number: No. 20908,20908
• Citation: 418 S.E.2d 585,187 W.Va. 271
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. STATE LINE SPARKLER OF WV, LTD.; R. Robert Kirk; and Jerry G. Kirk, Petitioners Below, Appellees, v. William J. "Bucky" TEACH, Hon. Joan V. Bragg, Ruth Donaldson, and Harold E. Darlington, Magistrates of Berkeley County, Respondents Below, Appellants.

Page 585

418 S.E.2d 585

187 W.Va. 271

STATE of West Virginia ex rel. STATE LINE SPARKLER OF WV LTD.; R. Robert Kirk; and Jerry G. Kirk Petitioners Below, Appellees, v. William J. "Bucky" TEACH, Hon. Joan V. Bragg, Ruth Donaldson, and Harold E. Darlington, Magistrates of Berkeley County, Respondents Below, Appellants.

No. 20908.

Supreme Court of Appeals of

West Virginia.

Submitted April 29, 1992.

Decided May 15, 1992.

Rehearing Denied June 24, 1992.

Syllabus by the Court

1. " 'The county [commission] is a corporation created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given. It can do only such things as are authorized by law, and in the mode prescribed.' Point 3, syllabus, Barbor v. County Court of Mercer County, 85 W.Va. 359 [101 S.E. 721 (1920) ]." Syllabus Point 1, State ex rel. County Court v. Arthur, 150 W.Va. 293, 145 S.E.2d 34 (1965).

2. A grant of the police power to a local government or political subdivision necessarily includes the right to carry it into effect and empowers the governing body to use proper means to enforce its ordinances. Consequently, the power to punish by a pecuniary fine or penalty is implied from the delegation by the legislature of the right to enforce a particular police power through ordinances or regulations.

3. The legislature has authority to delegate its law-making power to municipal corporations and counties as to matters of local concern. Such delegation does not violate the separation of powers doctrine contained in Article V, Section 1 of the West Virginia Constitution.

4. " 'This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.' Syllabus Point 2, Sands v. Security Trust Co., 143 W.Va. 522, 102 S.E.2d 733 (1958)." Syllabus Point 2, Duquesne Light Co. v. State Tax Department, 174 W.Va. 506, 327 S.E.2d 683 (1984), cert. denied , 471 U.S. 1029, 105 S.Ct. 2040, 85 L.Ed.2d 322 (1985).

Michael L. Scales, Greenberg & Scales, Martinsburg, for appellees.

Pamela Jean Games-Neely, Janet L. Scalia, Asst. Pros. Attys., for Berkeley County, Martinsburg, for appellants.

MILLER, Justice:

This is an appeal of a final order of the Circuit Court of Berkeley County which granted the petitioners below a writ of prohibition to prevent respondent William J. "Bucky" Teach from obtaining and the respondent magistrates from issuing criminal warrants to enforce provisions of the Berkeley County Building Code. The circuit court ruled that because the statutes authorizing county commissions to adopt building codes did not expressly authorize the imposition of penalties for violations thereof, the provisions of the county ordinance imposing such sanctions were unconstitutional. We disagree, and we reverse the judgment of the circuit court.

I.

Two statutes are at the heart of this dispute. In 1988, the legislature enacted W.Va.Code, 29-3-5b, which required the state fire commission to promulgate comprehensive rules and regulations, to be known as the "state building code," for the purpose of "safeguard[ing] life and property and ... ensur[ing] the quality of construction of all structures erected or renovated throughout this State." These regulations were required to address all aspects of building construction, renovation, and operation. W.Va.Code, 29-3-5b, provided that the state building code shall be effective in those counties and municipalities which adopt it, but allowed for more stringent ordinances or regulations. The statute placed the responsibility for enforcement of the state building code on the adopting local jurisdictions. The current statute is virtually identical. ¹

At the same time, the legislature enacted W.Va.Code, 7-1-3n (1988), which voided all existing county building codes one year after the promulgation of the state building code and required a county commission, if it desired thereafter to enact a building code, to adopt the rules and regulations promulgated by the state fire commission under W.Va.Code, 29-3-5b. ²

In response to the legislative mandate of W.Va.Code, 29-3-5b, the state fire commission adopted as part of the state building code the standards set out in the 1990 Building Officials & Code Administrators National Building Code (BOCA). ³ See 7 W.Va.C.S.R. § 87-4-4.1 (1991). The BOCA standards provide for penalties for violations in the form of fines and/or imprisonment. The state building code leaves the determination of the appropriate penalty to the discretion of the local government. In particular, the state building code provides that the BOCA standards providing for a penalty of imprisonment for a violation of the rules are "optional with each adopting local jurisdiction." 7 W.Va.C.S.R. § 87-4-5.4. The state fire commission's rules also authorize local governments to adopt or reject certain discretionary provisions of the BOCA standards as a way of adapting them to local conditions. 7 W.Va.C.S.R. § 87-4-5.3.

On January 31, 1991, the Berkeley County Commission adopted a county building code based on the state fire commission's regulations. The ordinance designated violations of the building code as misdemeanors, punishable by fines of up to $500.

In May of 1991, Mr. Teach, Berkeley County's building code enforcement officer, issued notices of building code violations to the petitioners, State Line Sparkler of WV, Ltd. (SLS), a West Virginia corporation, and its principals, R. Robert Kirk and Jerry G. Kirk. Mr. Teach also posted a stop-work notice, requiring construction, alterations, or repairs to cease at the SLS premises in Berkeley County. Mr. Teach subsequently filed criminal complaints in magistrate court charging the Kirks with continuing to operate their business without the required permits after the posting of the stop-work notice. As a result, the Kirks and several SLS employees were arrested.

On June 6, 1991, the petitioners filed with the Circuit Court of Berkeley County a petition for a writ of prohibition seeking to prevent the respondents from obtaining, issuing, or enforcing any warrants against them for alleged violations of the county building code. The petition alleged that the provisions of the building code did not pertain to the activities taking place on the SLS premises and that the language of the ordinance was unconstitutionally vague.

A hearing was conducted on the petition for a writ of prohibition on June 19, 1991. At that time, the circuit court announced its conclusion that the county ordinance adopting the building code was unconstitutional insofar as it permitted imposition of penalties for a violation thereof. The court concluded that because such penalties were not expressly authorized by W.Va.Code, 29-3-5b (1990), and 7-1-3n, provision therefor in the county ordinance exceeded the legislative delegation of authority. A nunc pro tunc order reflecting these conclusions was entered on October 12, 1991.

II.

The general rule with regard to the powers of county governments is set forth in Syllabus Point 1 of State ex rel. County Court v. Arthur, 150 W.Va. 293, 145 S.E.2d 34 (1965):

" 'The county [commission] is a corporation created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given. It can do only such things as are authorized by law, and in the mode prescribed.' Point 3, syllabus, Barbor v. County Court of Mercer County, 85 W.Va. 359 [101 S.E. 721 (1920) ]."

See also Berkeley County Comm'n v. Shiley, 170 W.Va. 684, 295 S.E.2d 924 (1982). It is undisputed that neither W.Va.Code, 29-3-5b nor W.Va.Code, 7-1-3n expressly authorizes a county commission adopting the state building code to enact penalties for violations thereof. Nor are we directed to any general grant of power to impose penalties for the violation of county ordinances, such as that conferred upon municipalities. ⁴

It appears, however, that such power may arise by implication. The general rule is that a grant of the police power to a local government or political subdivision necessarily includes the right to carry it into effect and empowers the governing body to use proper means to enforce its ordinances. See generally 5 McQuillan Municipal Corporations § 17.04 (3d ed. 1989); 56 Am.Jur.2d Municipal Corporations, Counties and Other Political Subdivisions § 414 (1971). Pursuant to this rule, it has been held that even in the absence of an express grant of authority, the power to punish by a pecuniary fine or penalty is implied from the delegation by the legislature of the right to enforce a particular police power through ordinances or regulations. ⁵ See, e.g., Dunn v. Mayor & Council of Wilmington, 59 Del. 287, 219 A.2d 153 (1966); Metropolitan Sanitary Dist. v. On-Cor Frozen Foods, Inc., 36 Ill.App.3d 239, 343 N.E.2d 577 (1976); City of Louisville v. Fischer Packing Co., 520 S.W.2d 744 (Ky.1975); City of Detroit v. Fort Wayne & B.I. Ry. Co., 95 Mich. 456, 54 N.W. 958 (1893); State v. Grimes, 49 Minn. 443, 52 N.W. 42 (1892); Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628 (1929); State v. Iams, 78 Neb. 678, 111 N.W. 604 (1907); Sitterle v. Victoria Cold Storage Co., 33 S.W.2d 546 (Tex.Civ.App.1930).

Of particular interest is City of Louisville v. Fischer Packing Co., supra, where the court considered a city ordinance which provided that any person who failed to file an occupational license tax return would be assessed a penalty of up to 25 percent of the unpaid license fee. The legislation authorizing cities to issue such licenses provided no penalty for failure to file a return. It did, however, provide that licenses issued pursuant to the statute would be "issued and...