State ex rel. Steele v. Kopp

• Decision Date: 29 June 1983
• Docket Number: No. 15907,15907
• Citation: 172 W.Va. 329,305 S.E.2d 285
• Parties: STATE of West Virginia ex rel. Helen STEELE, James Ernest Atkins, et al., etc. v. Donald L. KOPP, Clerk, etc.
• Court: West Virginia Supreme Court

Page 285

305 S.E.2d 285

172 W.Va. 329

STATE of West Virginia ex rel. Helen STEELE, James Ernest Atkins, et al., etc. v. Donald L. KOPP, Clerk, etc.

No. 15907.

Supreme Court of Appeals of West Virginia.

June 29, 1983.

Syllabus by the Court

1. "Although the discretion vested in the Governor respecting his official duties is not subject to control or review by the courts so long as his actions fall within the sphere of his lawful authority, when he clearly abuses his discretion it is the duty of the courts to review his actions and prevent such abuse." Syl. pt. 6, State ex rel. Brotherton v. Blankenship, 157 W.Va. 100, 207 S.E.2d 421 (1973).

2. "Article V, section 1 of the Constitution of West Virginia which prohibits any one department of our state government from exercising the powers of the others, is not merely a suggestion; it is part of the fundamental law of our State and, as such, it must be strictly construed and closely followed." Syl. pt. 1, State ex rel. Barker v. Manchin, 167 W.Va. 155, 279 S.E.2d 622 (1981).

3. Where the West Virginia legislature pursuant to its authority to regulate nonintoxicating beer in this State created, under the Nonintoxicating Beer Act, the office of the West Virginia nonintoxicating beer commissioner, and the statute creating that office provided a deputy commissioner and employees or agents to aid the commissioner in his or her duties, and where (1) the governor submitted a proposed budget for fiscal year 1983-84 to the legislature during its Regular Session in which the governor did not request appropriations for the office of the nonintoxicating beer commissioner, and (2) upon presentation to the governor of the budget bill as passed by the legislature, the governor effectively eliminated the functions of the office of the nonintoxicating beer commissioner by reducing legislative appropriations for that office to zero, except for the commissioner's salary and $50,000, the actions of the governor violated W.Va. Const., art. V, § 1, concerning the separation of powers of government in this State, and W.Va. Const., art. VI, § 51, concerning this State's annual budgetary process.

George G. Guthrie & David D. Johnson, III, Spilman, Thomas, Battle & Klostermeyer, Charleston, for relators.

Chauncey H. Browning, Atty. Gen. and Victor A. Barone, Deputy Atty. Gen., Charleston, Marianne K. Hoover, Asst. Atty. Gen., Jack M. McCarty, Charleston, for respondent.

McHUGH, Justice:

This action is before this Court upon a petition in mandamus seeking publication of the West Virginia budget bill for fiscal year 1983-84 as enacted by the West Virginia Legislature and without budgetary reductions by the governor relating to the West Virginia nonintoxicating beer commissioner. By order entered on June 7, 1983, this Court issued a rule directing the respondent, Donald L. Kopp, to show cause why relief should not be awarded against him. By order entered on June 14, 1983, this Court granted the motion to intervene of John D. Rockefeller IV, Governor of the State of West Virginia. This Court has before it the petition, the response and demurrer of the respondent, the intervenor's response, all matters of record and the briefs of counsel.

Article 16 of chapter 11 of the West Virginia Code is known as "The Nonintoxicating Beer Act." W.Va.Code, 11-16-1 et seq. [1937]. That act provides, inter alia, that "[n]o person shall manufacture, sell, possess for sale, transport or distribute nonintoxicating beer except in accordance with the provisions of this article, and after first obtaining a state license therefor...." W.Va.Code, 11-16-3 [1980]. Pursuant to W.Va.Code, 11-16-18 [1951], the administration of the act is vested in the West Virginia nonintoxicating beer commissioner. To aid the commissioner in his or her duties, W.Va.Code, 11-16-18 [1951], provides the commissioner with a deputy and agents. The petitioners assert that they are citizens and taxpayers of West Virginia and agents of the nonintoxicating beer commissioner. They seek in this action to nullify the governor's reductions of funds appropriated by the legislature to the office of the commissioner.

Respondent, Donald L. Kopp, is the Clerk of the House of Delegates of the State of West Virginia. Pursuant to W.Va.Code, 4-1-13 [1931], the Clerk of the House of Delegates has the responsibility to "superintend the printing" of the acts and joint resolutions of the West Virginia Legislature. The petitioners ask this Court to require respondent Kopp to publish the state budget for fiscal year 1983-84 without the reductions made by the governor with respect to the office of the nonintoxicating beer commissioner.

As the petition indicates, the budget submitted by the governor to the West Virginia legislature during its 1983 Regular Session called for an elimination of funding for the office of the nonintoxicating beer commissioner. Specifically, the budget submitted by the governor to the legislature stated that "[i]t is recommended that the administrative functions and responsibilities of the West Virginia Nonintoxicating Beer Commission be transferred to the Office of the Alcohol Beverage Control Commissioner." However, during the 1983 Regular Session of the Legislature, bills providing for the abolition of the office of nonintoxicating beer commissioner failed to be enacted into law.

On March 16, 1983, the last day of its regular session, the legislature passed Enrolled Committee Substitute for House Bill No. 1150, the budget bill. That budget bill, applicable to fiscal year 1983-84, contained Account No. 4900, entitled "West Virginia Nonintoxicating Beer Commissioner."

Account No. 4900, as passed by the legislature, contained an appropriation of $392,294 for the nonintoxicating beer commissioner. That appropriation included $305,777 for personal services; $86,217 for current expenses and $300 for equipment.

Later that day, March 16, 1983, the legislature adjourned sine die. The budget bill was subsequently presented to the governor. W.Va. Const., art. VI, § 51D(11). The governor thereafter filed in the office of the West Virginia Secretary of State (1) the budget bill, which indicated that the governor had reduced appropriations relating to Account No. 4900, and (2) a letter from the governor dated March 21, 1983, to the secretary of state concerning, inter alia, the governor's reductions of appropriations for Account No. 4900.

With respect to that account, the governor in the margin of the budget bill changed the appropriation of $392,294 for the "West Virginia Nonintoxicating Beer Commissioner" to $78,125. Specifically, that account, as changed by the governor, included $28,125 for personal services; $50,000 for current expenses and zero for equipment.

The March 21, 1983, letter of the governor, filed with the budget bill in the office of the secretary of state contained the following statements concerning Account No. 4900:

I have reduced line 1, Personal Services, and line 2, Current Expenses; struck line 3, Equipment; and reduced line 4, Total, accordingly.

I have reduced the level of appropriation to the Beer Commission to what I believe to be the legally acceptable minimum. The functions of the Beer Commission can be performed by the Alcohol Beverage Control Commission, at minimal additional cost to the taxpayers. I have left only the amount of the Commissioner's salary in the Personal Services line, because it is a statutory position with a statutory salary; and the Current Expenses line has been reduced to the maximum amount which may be necessary to provide reimbursement to the Alcohol Beverage Control Commission for duties performed.

The time has come for us to avoid duplication of services and unnecessary bureaucracy in government wherever possible. Nowhere is this more evident than in the operation of two separate agencies to inspect and oversee the sale of beer, wine and liquor. I believe that the consolidation of duties which will be necessary because of the above reductions will finally demonstrate the need to abolish the Beer Commission by statute. ¹

The petitioners assert that the regulation of nonintoxicating beer in this State is essentially a legislative function as reflected by the provisions of W.Va.Code, 11-16-18 [1951], which statute established the office of the West Virginia nonintoxicating beer commissioner. Thus, the petitioners contend that, inasmuch as the action of the governor in substantially reducing the legislative appropriations for the commissioner's office for fiscal year 1983-84 effectively eliminated the function of the commissioner's office, the governor's action violated W.Va. Const., art. V, § 1, concerning the separation of legislative, executive and judicial powers in this State, and W.Va. Const., art. VI, § 51, concerning this State's budgetary process. The petitioners further contend that, inasmuch as the governor's letter of March 21, 1983, purports to transfer to the office of the West Virginia alcohol beverage control commissioner funds appropriated by the legislature to the West Virginia nonintoxicating beer commissioner, the governor's actions are contrary to the provisions of W.Va.Code, 5A-2-19 [1976]. ² Finally, the petitioners contend that the budget bill, containing the governor's reductions of appropriations for Account No. 4900, was not timely filed in the office of the secretary of state, and therefore the reductions are of no force and effect.

The principal conflict in this action is between the petitioners and the intervenor, the governor. Respondent Kopp asks this Court to inform him "of the authentic and official form of the Budget Act of this State...."

The governor asserts that he did not insert appropriations for Account No. 4900, relating to the office of the nonintoxicating beer commissioner, into the budget bill prepared by him and submitted to the legislature during its 1983 Regular Session. Therefore, the governor contends that the...