State ex rel. State Bldg. Commission v. Moore

• Decision Date: 05 October 1971
• Docket Number: No. 13093,13093
• Citation: 155 W.Va. 212,184 S.E.2d 94
• Parties: STATE of West Virginia ex rel. The STATE BUILDING COMMISSION of West Virginia v. The Honorable Arch A. MOORE, Jr., Governor of the State of West Virginia, as Chairman of the State Building Commission of West Virginia, and the Honorable John D. Rockefeller, IV, Secretary of State of the State of West Virginia, as Secretary of the State Building Commission of West Virginia.
• Court: West Virginia Supreme Court

Page 94

184 S.E.2d 94

155 W.Va. 212

STATE of West Virginia ex rel. The STATE BUILDING COMMISSION

of West Virginia v. The Honorable Arch A. MOORE, Jr., Governor of the State of

West Virginia, as Chairman of the State Building Commission

of West Virginia, and the Honorable John D. Rockefeller, IV,

Secretary of State of the State of West Virginia, as

Secretary of the State Building Commission of West Virginia.

No. 13093.

Supreme Court of Appeals of West Virginia.

Submitted July 28, 1971.

Decided Oct. 5, 1971.

Syllabus by the Court

1. 'The general powers of the legislature are almost plenary. It can legislate on every subject not interdicted by the constitution itself.' Point 2 Syllabus, State Road Commission of West Virginia v. County Court of Kanawha County, 112 W.Va. 98 (163 S.E. 815).

2. 'In considering constitutional restraint, the negation of legislative power must be manifest beyond reasonable doubt.' Point 3 Syllabus, State Road Commission of West Virginia v. County Court of Kanawha County, 112 W.Va. 98 (163 S.E. 815).

3. Section 52 of Article VI of the Constitution of West Virginia provides for the creation of a fund which is commonly referred to as the State Road Fund and further provides, generally speaking, that moneys accruing to that fund from time to time may be used solely for the construction, reconstruction, repair and maintenance of public highways of the state and for the payment of obligations incurred in the construction, reconstruction, repair and maintenance of such public highways. Moneys from the fund thus created and maintained may be expended for the payment of rent of office space in an office building constructed by The State Building Commission of West Virginia by the issuance and sale of bonds where the office space in question is leased to and used exclusively by and for the benefit of the West Virginia Department of Highways, and the rent thus paid may be used to pay the principal of and the interest on the bonds issued and sold for the construction of the office building thus leased, used and occupied, and also for the cost of the maintenance thereof. Such expenditure of moneys does not violate the provisions of the constitutional amendment by which the State Road Fund was created nor does such expenditure of money create a debt of the state in violation of the provisions of Section 4 of Article X of the Constitution of West Virginia.

4. To the extent that Chapter 167, Acts of the Legislature, Regular Session, 1971, authorizes and directs the West Virginia Alcohol Beverage Control Commissioner to pay into a special fund created by that statute in the office of the state treasurer the sum of $3,600,000 annually, from profits accruing from the sale of alcoholic liquors by the state, for the ultimate purpose of paying the principal of and the interest on bonds issued and sold by The State Building Commission of West Virginia for the construction of buildings and related facilities to be used by various departments or agencies of the state, the statute in question does not create or incur a state debt in violation of the provisions of Section 4 of Article X of the Constitution of West Virginia.

5. Moneys accruing from the profits on the sale of alcoholic liquors by the state and paid into a special fund in the office of the state treasurer, pursuant to the provisions of Chapter 167, Acts of the Legislature, Regular Session, 1971, may not be used by The State Building Commission of West Virginia to pay its own operating expenses, though, by a proper lease agreement, it may require an agency or a department of state government, as a lessee of office space, to pay the reasonable, current cost of the maintenance of such office space, on a fiscal year basis, from funds properly available to such a lessee, including general revenue funds, though the Building Commission may not, by lease agreement or otherwise, bind the legislature to appropriate general revenue funds of the state for that purpose at any time or for any fiscal year or portion thereof.

6. 'The general rule is that negotiable interest coupons, attached to or detached from bonds, bear interest from and after their respective maturity dates.' Point 3 Syllabus, Hamilton v. Wheeling Public Service Co., 88 W.Va. 573 (107 S.E. 401).

7. The State Building Commission of West Virginia is required to pay interest on the overdue interest coupons of the $1,500,000 temporary bonds of the $9,000,000 State Building Revenue Bonds, Science and Culture Center Series, from the respective due dates of the coupons until paid, at the rate of 5 1/4 percent, being the rate prescribed by contract for payment of interest on the principal of the bonds, and such payments will not violate the general rule that the state is immune from liability for payment of interest on overdue obligations.

8. 'Mandamus lies to require the discharge by a public officer of a nondiscretionary duty.' Point 3 Syllabus, State ex rel. Greenbrier County Airport Authority v. Hanna, 151 W.Va. 479 (153 S.E.2d 284).

Jackson, Kelly, Holt & O'Farrell, F. Paul Chambers, James K. Brown, Charleston, for relator.

Chauncey H. Browning, Jr., Atty. Gen., Cletus B. Hanley, Deputy Atty. Gen., Victor A. Barone, Asst. Atty. Gen., Charleston, for respondents.

Leo Catsonis, Charleston, for intervenors.

CALHOUN, Judge:

This case involves a proceeding in mandamus instituted in this Court by The State of West Virginia at the relation of The State Building Commission of West Virginia against The Honorable Arch A. Moore, Jr., Governor of the State of West Virginia, as Chairman of The State Building Commission of West Virginia and The Honorable John D. Rockefeller, IV, Secretary of State of the State of West Virginia in his capacity as Secretary of The State Building Commission of West Virginia, as respondents.

In the interest of convenience and brevity, The State Building Commission of West Virginia may be referred to hereafter in this opinion as the Building Commission.

The basic purpose of the mandamus proceeding is to require the two respondents in their official capacities as chairman and secretary, respectively, of the Building Commission to perform certain acts, which are alleged to be nondiscretionary legal duties, in order to enable the Building Commission fully to effectuate and complete its purpose of issuing and selling certain 'state building revenue bonds of the state' in order to finance the construction of certain state buildings and related facilities. The majority of the buildings have been constructed and are now occupied by various departments and agencies of state government.

More specifically, the purpose of the mandamus proceeding is to obtain an adjudication by this Court of the question of the legal validity of the actions of the Building Commission in relation to the issuance and sale or proposed issuance and sale of bonds and the construction or proposed construction of buildings and related facilities. This, in turn, involves basically the question of the constitutionality of portions of Chapter 167, Acts of the Legislature, Regular Session, 1971, when considered in the light of this Court's decision in State ex rel. Hall v. Taylor, W.Va., 178 S.E.2d 48, by which the Court held that Article 6 of Chapter 5, Code, 1931, as amended in 1968, was unconstitutional in part in that it created a state debt in violation of Section 4 of Article X of the Constitution of West Virginia, the most pertinent portion of which constitutional provision is as follows: 'No debt shall be contracted by this State, except to meet casual deficits in the revenue, * * *.' The Court's decision in the Hall case is summarized in the second point of the syllabus as follows:

'To the extent that Article 6 of Chapter 5, Code, 1931, as amended and reencated in part by Chapter 10, Acts of the Legislature, Regular Session, 1968, authorizes the issuance and sale of 'revenue bonds' for the construction of state buildings and contemplates that the principal of and the interest on the bonds shall be paid solely from a fund to be created and maintained from general revenue appropriations to be made by the legislature from year to year for payment of rent for the use and occupancy of such buildings by various state departments and agencies as lessees of office space in the buildings so constructed, The statute creates a state debt in violation of the inhibitory provisions of Section 4 of Article X of the Constitution of West Virginia. In this respect and to this extent, therefore, the statute is unconstitutional and accordingly the 'fund' which the statute undertakes to create as a source of payment of the bonds has no valid, constitutional existence.' (Italics supplied.)

The 1971 enactment in question, designated as Enrolled House Bill No. 944, which hereafter in this opinion may be referred to merely as the 1971 Act, amended and reenacted the provisions of Article 6 of Chapter 5, Code, 1931, as amended in 1968; and also amended and reenacted Sections 9a and 19a of Article 3 of Chapter 60, Code, 1931, as previously amended. The basic purpose of the 1971 Act, as expressed therein, is to avoid, correct or obviate the constitutional infirmities of Article 6 of Chapter 5, Code, 1931, as amended, in the light of this Court's decision in State ex rel. Hall v. Taylor, W.Va., 178 S.E.2d 48, which may be referred to hereafter in this opinion merely as the Hall case. Reference is here made to the opinion in that case for the discussion therein of certain statutes, facts and prior decisions of this Court which form a part of the background of the present case.

After the present mandamus proceeding was pending in this Court, Rabbi Samuel Cooper, Dan Straight, Paul J. Whittington, Michael Callias, Harry Gidley, Neil Robinson, James Ferrise, Ruth Maley, Dewey Barker, Robert Barker and Woodrow Hunsinger, as interested citizens, taxpayers and property owners, presented to the Court their petition by...