State Ex Tel. C. H. Koontz As State Tax Comm'r v. The Bd. Of Park Comm'rs Of The City Of Huntington

• Citation: 131 W.Va. 417
• Decision Date: 27 April 1948
• Docket Number: (No. 9992)
• Court: Supreme Court of West Virginia
• Parties: State ex tel. C. H. KoontzAs State Tax Commissioner v. The Board of Park Commissionersof The City of Huntington, et al.

131 W.Va. 417

State ex tel. C. H. Koontz

As State Tax Commissioner

v.The Board of Park Commissioners

of The City of Huntington, et al.

(No. 9992)

Supreme Court of Appeals of West Virginia.

Submitted April 6, 1948.

Decided April 27, 1948.

1. Corporations

The board of park commissioners of the City of Huntington, created by act of the Legislature for the purpose of managing and controlling a system of parks, is not a municipal corporation within the meaning, of the statute, Code, 1931, 8-7-7, which requires every municipal corporation in this State to publish an annual financial statement.

2. Statute

A penal statute will be strictly construed.

3. Mandamus

In mandamus the relator must show a clear legal right to the remedy which he seeks.

4. Costs

As a general rule, upon the denial of the writ, costs in mandamus will not be awarded against a public officer who, acting in the interest of the public and in good faith, institutes such proceeding.

Error to Circuit Court, Cabell County.

Mandamus proceeding by the State, on relation of C. H. Koontz, as State Tax Commissioner, to compel the Board of Park Commissioners of the City of Huntington and others to publish an annual financial statement. To review the judgment, relator brings error.

Modified and affirmed.

Ira J. Partlow, Attorney General, and Robert L. Ramsay, Assistant Attorney General, for plaintiff in error.

Scherr, Meek & Vinson and Harry Scherr, for defendants in error.

Haymond, Judge:

The controlling question which arises on this writ of error is whether a statute of this State, which requires the annual publication of a financial statement by every municipal corporation, applies to the defendants the board of park commissioners of the City of Huntington and its members. The Circuit Court of Cabell County, in which this litigation was begun by the State at the relation of the State Tax Commissioner, after sustaining the demurrer of the defendants to the original petition, heard the proceeding upon the amended petition of the relator and the answer of the defendants, held that the statute, Code, 1931, 8-7-7, did not apply to the defendants and, by final order entered August 2, 1947, dismissed the petitions and awarded costs against the relator. This writ of error followed.

The material facts are undisputed and the matters involved present a purely legal question.

The relator contends: (1) That the defendant, the board of park commissioners of the City of Huntington, is a municipal corporation; and (2) that, being a corporation of that type, it is subject to the provisions of Section 7, Article 7, Chapter 8 of the Code of West Virginia, 1931.

These contentions the defendants deny.

The relator also insists that it was error for the trial court to enter judgment against him for costs.

The pertinent portion of the statute referred to is in these words:

"Every municipal corporation shall cause to be published in two newspapers of opposite politics, if there be such published therein, at a compensation not to exceed the rate provided by law for like publications, for one issue, or, if no such newspaper be published therein, to publish in pamphlet form not less than one hundred copies of a sworn statement of the financial condition of such corporation. Such statement shall contain an itemized account of the receipts and expenditures of the city or municipality, * * *. Such statement shall be prepared by the municipal corporation every twelve months and shall then be printed according to the provisions of this section. Either method of making the report shall be sworn to by the recorder, by the mayor and two members of the city council. One copy of such printed report shall be delivered to the judge of the judicial district, one to the clerk of the county court, one to the clerk of the circuit court, one shall be kept as a part of the records of the city or municipal corporation, and the remainder shall be held for distribution as called for by the taxpayers. If a city council fail or refuse to perform the duties hereinbefore named, every member of such council and the recorder thereof concurring in such failure or refusal shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than ten nor more than one hundred dollars."

This statute, in practically its present form in the Code of 1931, was originally enacted as Section 1 of Chapter 52, Acts of the Legislature of 1905, Regular Session, and it appeared in the Code of 1923 as Section 2 of Chapter 47A. It is pertinent to observe that the requirement of the publication of the statement is mandatory and that failure or refusal to comply with the statute is a misdemeanor which is punishable by a fine of not more than one hundred dollars.

The defendant the board of park commissioners of the City of Huntington was created by Chapter 26 of the Acts of the Legislature of 1925, Regular Session, Municipal Charters, and has existed and functioned since its creation under that statute as subsequently amended. The amendments relate to Section 11 of the act and were enacted by the Legislature as Chapter 120, Acts of the Legislature of 1933, First Extraordinary Session, and as Chapter 163, Acts of the Legislature of 1933, Second Extraordinary Session. They are not important in determining the character of the corporation created by the original act.

The statute contains thirteen sections. The title states that the act relates to the board of park commissioners of the City of Huntington. Section 1 declares that the City of Huntington in the counties of Cabell and Wayne shall constitute an independent park district to be known as the park district of Huntington. Section 2 provides that the board of park commissioners of Huntington shall be a body corporate, and as such may purchase, hold, sell, or convey real or personal property, receive any gift, grant, donation or devise, sue or be sued, contract and be contracted with and do other corporate acts. By this section it is given the management of and vested with the title to all property acquired for the use of parks, parkways', playgrounds, athletic fields, swimming pools, cemeteries and boulevards within the district, and is permitted to go beyond its territorial limits in this State to lease, purchase or acquire real estate for similar purposes.

Section 2a states that the words "park commission", as used, shall be construed to mean the board of park commissioners of the City of Huntington, the words "board of education" to mean the board of education of the independent school district of the City of Huntington, and the words "municipal authorities" to mean the governing body of the City of Huntington, unless the context in each instance indicates a contrary meaning.

Section 3 provides that six commissioners shall be nominated and elected by the voters of the district in the general election for state officers on election day, 1926, in the manner prescribed by general law for the nomination and the election of district officers; that every two years thereafter there shall be selected two commissioners whose term of office shall begin on the first day of January following their election and shall be for six years except that two of the commissioners elected in 1926 shall serve for only two years and the two others for only four years; that not more than one half of the board shall be members of the same political party; that the commissioners shall constitute a board of park commissioners of the City of Huntington; and that they shall receive no compensation for their services.

Section 4 prescribes the form of oath to be subscribed by the commissioners to the effect that each shall faithfully perform the duties as a member of the "board of park commissioners of the City of Huntington" and provides that any vacancy occurring in the board shall be filled by it. Section 5 declares that immediately following the passage of the act the Governor shall appoint six persons who are citizens and voters of the City of Huntington, not more than three of whom should be members of the same political party, as park commissioners to hold office until the election and the qualification of the commissioners provided for in Section 3.

Section 6 requires the mayor of the City of Huntington to designate the place for the first meeting of the board and provides for its permanent organization and subsequent operation. Section 7 provides for a president and deals with his duties. Section 8 prescribes the duties of the secretary of the board. Section 9 makes provision for the meetings of the board.

Section 10 confers power upon the board of park commissioners to acquire land for a system of parks by purchase or when necessary by condemnation proceedings to be instituted under the provisions of the general statute governing such proceedings; provides that the words system of parks shall embrace any body of land of whatever shape or area designated ultimately to be used for parks, parkways, playgrounds, athletic fields, boulevards, or streets necessary to connect parks; and directs the board of commissioners to agree with the municipal authorities of the City of Huntington as to parts of streets necessary for use in the system of parks and boulevards.

This section also gives the board the necessary authority to control all parks and other designated parts of the park system within the district; to regulate by ordinance their use; to keep them in good order and free from obstruction; to restrain and punish vagrants and other persons on designated parts of the park system, such persons arrested under the ordinances of the board to be tried by the police judge of the City of Huntington; to construct, improve and repair parks and other specified parts of the park system on any grounds controlled by the board; to acquire, lease, appropriate and control lands either within or without the city limits of Huntington; to make contracts of certain designated kinds with the board of...