State Of West Va. Ex Rel. Town Of South Charleston v. Partlow, (No. 10145)

Citation133 W.Va. 139
Decision Date06 July 1949
Docket Number(No. 10145)
PartiesState of West Virginia ex rel. Town of SouthCharleston, A Municipal Corporation, et al., etc. v. Ira J. Partlow, Attorney General, et al.
CourtSupreme Court of West Virginia

133 W.Va. 139

State of West Virginia ex rel. Town of South
Charleston, A Municipal Corporation, et al., etc.
v.
Ira J. Partlow, Attorney General, et al.

(No. 10145)

Supreme Court of Appeals of West Virginia.

Submitted April 13, 1949.
Decided July 6, 1949.


[133 W.Va. 139]

1. Attorney General

Under Code, 13-1-25, the Attorney General of this State has no power to pass on the validity of a contract and agreement affecting the title to land to be purchased from the proceeds of a bond issue. Such question is judicial and must be determined by a court of competent jurisdiction.

2. Bond Issues

"Ordinarily the sole question to be considered upon the review provided for in Code, 13-1-26, is the approval or disapproval, by the attorney general of a proposed bond issue; and generally this Court will not undertake therein the supervision

[133 W.Va. 140]

of the expenditure of funds to be procured as a result of such bond issue." Baxa et al. v. Partlow, 132 W. Va., Pt. 3, Syl.

The State of West Virginia, on the relation of the Town of South Charleston, a municipal corporation, and others, filed a petition to review the action of Ira J. Partlow, Attorney General, and others, in disapproving a bond issue.

Reversed.

Haymond, President, Riley and Fox, Judges, concurring.

Bowers & Meador, P. G. Meador, for petitioners.

Ira J. Partlow, Attorney General, Eston B. Stephenson, Assistant Attorney General, for respondent.

Charles C. Wise, for Board of Education of Kanawha County, a statutory corporation, an intervenor.

Lovins, Judge:

The Attorney General of the State of West Virginia disapproved a proposed bond issue of the Town of South Charleston in the sum of eighteen thousand, five hundred dollars, authorized by the voters of said town on November 5, 1946. The Town of South Charleston, hereinafter designated as the "town", and a resident and taxpayer thereof, filed a petition in this Court seeking a review and reversal of the action of the Attorney General. This Court granted the review.

The Board of Education of the County of Kanawha, hereinafter referred to as the "board" was given leave to intervene in this proceeding.

Eighteen thousand dollars of the proceeds of said proposed bond issue is to be used for the purchase of an improved parcel of land, now owned by the United States of America. The tract of land is described as all of Lots Nos. 9 and 10, the westerly five feet of Lot No. 8, and the east-

[133 W.Va. 141]

erly seven feet of Lot No. 11, Block E-3, of the town. This land was formerly owned by the board. On June 10, 1941, the board conveyed Lots Nos. 9 and 10, and the westerly five feet of Lot No. 8 aforesaid to the town, and released to the town its interest in the easterly seven feet of said Lot No. 11. The consideration for such conveyance and release was nominal.

The town agreed with the board that it would endeavor to secure the erection of a recreation building and other improvements on said land, and that, in the event the land was not acquired by the United States of America, the town would execute and deliver a lease in "language identical with or substantially the same as the lease * * * [thereto] attached". The agreement further provided that if the United States of America should acquire title to said land and reconvey the same to the town, the town would execute a similar lease to the board for a term of ninety-nine years, with the privilege of renewals for two like periods. It is unnecessary further to state the terms, stipulations and provisions of said agreement.

A proceeding in eminent domain was instituted by the United States of America, in the United States District Court for the Southern District of West Virginia, which resulted in the United States of America acquiring the title to said land for the sum of one dollar. The arrangement between the town and the board was recited in an order of the court entered in the eminent domain proceeding. But it was provided in such order that the agreement or arrangement should have no effect on the title acquired by the United States of America.

Thereafter the Federal Government erected a building on the land. The town leased the land and improvements from the Government. Whether the town still occupies said land and improvements, as a tenant, is not clearly shown.

Subsequent to the conveyance to the town and the agreement between the town and the board, a new ad-

[133 W.Va. 142]

ministration was elected for the Town of South Charleston, and, according to the record, the members of the new administration were not apprised of the agreement between the town and the board. On September 30, 1946, an ordinance was adopted by the council of the town submitting the bond issue to the voters thereof. The money derived from the sale of the bonds was to be used in purchasing the land and improvements from the Federal Government. During the pendency of such election, officials of the town were advised of the conveyance from the board to the town, and the agreement to lease the property in the event the town reacquired ownership thereof. On October 23, 1946, a statement was made and published by the town officials to the effect that they had no intention to purchase the land and improvements, if the transaction between the board and town was binding and valid, but such statement was not submitted to the voters in the ordinance calling the election. The bond issue was authorized by the voters of said town. No defect is set forth in the record relative to the procedure in calling the bond election, in submitting the question to the legal voters of the town, and in ascertaining the result of said election.

The facts hereinbefore stated were before this Court in the case of Town of South Charleston v. Board of Education, 132 W. Va. 77, 50 S. E. 2d 880, and reference is made to the opinion in that case for a statement of additional facts considered in this proceeding.

The Court held in the case of Town of South Charleston v. Board of Education, 132 W. Va. 77, 50 S. E. 2d 880, that the subject matter of the controversy was not before the Court; that there was no jurisdiction to grant relief under the Declaratory Judgments Act; and, further, that the parties to that suit were relying upon contingent and future events which could not be considered. Accordingly, said declaratory judgment suit was dismissed.

After the dismissal of said declaratory judgment suit, the validity of the bond issue was submitted to the Attorney General of this State, in accordance with the provi-

[133 W.Va. 143]

sions of Code, 13-1-25. For some reason not clearly shown, the papers showing the transactions between the board and the town relative to the land and improvements were included among the papers submitted to the Attorney General. Upon consideration of the agreement and deed executed by the board and town, the Attorney General was of opinion that the agreement, not having been declared invalid by a court of competent jurisdiction, should be treated as valid; that the money raised by the bond issue could not be legally expended for the purchase of the land and improvements hereinabove mentioned; and that the proceeds of the proposed bond issue must be expended for municipal purposes and not for recreational or educational purposes controlled by the board. Counsel for the town and petitioner contend (1) that the deed and agreement executed by the town and board are invalid; and (2) that all rights, interest, and estate, if any, the board may have had in the land and improvements were extinguished by the judgment in the eminent domain proceeding above mentioned. The board contends: (1) that the deed executed by it to the town and the agreement to lease the land and improvements are valid and binding by reason of the statutory rights conferred on the board and town by Chapter 105, Acts of the Legislature, 1945; (2) that the town has no equity in the land and improvements and seeks to repudiate the agreement of October 10, 1941; and (3) that the bond issue is invalid on account of the statement made by the officials of the town after the election had been called.

Notwithstanding the written statement of the Attorney General, the contentions of the town, and the contentions of the board, we are of opinion that only two questions arise in this proceeding: (1) May the validity of the deed and agreement between the board and the town and their respective rights to the lands and improvements, if any, be determined in this proceeding; and (2) is the bond issue, when separated from the expenditure of the money raised thereby, valid?

[133 W.Va. 144]

A review of a proposed bond issue by the Attorney General of this State, and a further review of the action of that official by this Court, are entirely statutory. It would serve no good purpose to cite cases from other jurisdictions relative to similar questions.

The provisions of Code, 13-1-25, direct "the governing body of any political division issuing bonds under this article", after the ascertainment of the result of a bond election, to submit to the Attorney General certified copies "of all orders, ordinances, proclamations, affidavits, resolutions and records of all of the proceedings connected with or pertaining to such bond issue, and any other matters relative thereto which the attorney general may require."

Assuming that a proposed bond issue is for a purpose authorized by law, the power of the Attorney General in approving or disapproving the...

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