Walter v. Ritchie
| Decision Date | 06 September 1972 |
| Docket Number | No. 13206,13206 |
| Citation | 156 W.Va. 98,191 S.E.2d 275 |
| Court | West Virginia Supreme Court |
| Parties | Cecil E. WALTER v. William S. RITCHIE, Jr., Commissioner of the West Virginia Department of Highways. |
Syllabus by the Court
1. The plain meaning of the word 'sole' as used in Section 3, Article 23, Chapter 17, Code, 1931, as amended, is that the highway commissioner is the single person directed to issue licenses to salvage yard operators and use the receipts therefrom but the commissioner is not thereby granted absolute discretion to issue or not issue licenses as he sees fit.
2. The authority of the highway commissioner to regulate the operation of salvage yards in geographical areas beyond the set-back lines established in Section 4, Article 23, Chapter 17, Code, 1931, as amended, is limited to the issuance and renewal of an annual license upon the tender of a properly executed application therefor, accompanied by the requisite annual licensing fee.
3. Where the duty of the highway commissioner is so plain in point of law and so clear in matter of fact that no element of discretion is left as to the precise mode of its performance, such duty is ministerial and a writ of mandamus is proper to compel its performance.
4. Mandamus will lie to compel performance of a nondiscretionary duty of an administrative officer though another remedy exists, where it appears that the official, under misapprehension of law, refuses to recognize the nature and scope of his duty and proceeds on the belief that he has discretion to do or not to do the thing demanded of him.
Patricia Valentino, Wheeling, for relator.
Hershel R. Hark, Legal Div., DOH, Charleston, for respondent.
This is an original application by petitioner, Cecil E. Walter, for a writ of mandamus to compel the Commissioner of the West Virginia Department of Highways, hereinafter referred to as the commissioner, to issue to the petitioner a renewal license to operate a salvage yard as required by Section 3, Article 23, Chapter 17, W.Va.Code, 1931, as amended. The rule, granted April 24, 1972, was returnable May 16, at which time the case was submitted for decision upon the pleadings, briefs and oral arguments in behalf of the respective parties.
The undisputed facts are these: The petitioner has operated a salvage yard known as the Elm Grove Auto Parts Company located in the Mar-Win Addition of Elm Grove, an unincorporated and unzoned community composed of 90% Residential dwellings and five businesses other than petitioner's, situate in Marshall County, West Virginia. The salvage yard is completely outside the corporate boundaries of any municipality and is not within 1,000 feet of the right of way of any road incorporated within the state or federal highway system, nor within 300 feet of the right of way of a state local service road. The commissioner admits that the salvage yard operation complies with Article 23, Chapter 17, Code, 1931, as amended, hereinafter referred to as the salvage yard statute, as well as the rules and regulations of the Department of Highways relating to the operation of salvage yards adjacent to state highways.
Petitioner was first issued a license to operate the business in 1970 and it was renewed by the commissioner for 1971. However, his request for renewal of the license for the year 1972 was refused by the commissioner on the ground that the salvage yard was an unsightly place and detracted from the surrounding community. After seeking further explanation for the refusal, the petitioner was informed by letter of March 21, 1972 that the commissioner knew no reason to alter his previous decision. The commissioner's answer filed in this proceeding alleges that his refusal is the proper exercise of his discretion for the reasons that an investigation of complaints contained in a petition signed by more than 100 residents in the community disclosed that the presence of the petitioner's salvage yard detracted from the aesthetic beauty of the neighborhood, constitutes a health hazard, prevents the uninterrupted enjoyment of the general health, prosperity and comfort of the community and therefore is a public nuisance.
Does the highway commissioner, in the lawful exercise of the power reposed in him by the salvage yard statute, have the discretion to refuse a properly tendered license renewal application of one who operates a salvage yard not adjacent to the highways of the State? This is the question for decision and it essentially turns on the construction of the meaning of words in a statute.
In order to ascertain the powers of the commissioner of highways pertaining to the operation of salvage yards, it is necessary to briefly survey the pertinent statutes involved.
The commissioner derives his general powers, duties and responsibilities from Chapter 17 of the Code. Section 8(1), Article 2A, Chapter 17 provides that the commissioner may 'Exercise general supervision over the State road program and the construction, reconstruction, repair and maintenance of State roads and highways; . . .', and Section 8(23) of the same article allows the commissioner to 'Invoke any appropriate legal or equitable remedies to enforce his orders, to compel compliance with requirements of law and to protect and preserve the State road and highway system or any part thereof; . . ..' Without surveying each and every subsection relating to the commissioner's duties, suffice it to say that his office is not granted any specific power in relation to the operation of salvage yards in the State of West Virginia.
Since 1959, however, the commissioner has been delegated specific responsibilities in regard to the regulation of salvage yards by virtue of Article 23, Chapter 17, Code, 1931, as amended. This is the statute by which the commissioner purports to exercise authority questioned in this proceeding. The provisions of the salvage yard statute relevant to this case are quoted or summarized as follows:
Section 1 of the statute sets forth a legislative declaration of intent and provides:
'The legislature hereby finds and declares that the establishment, operation, maintenance and use of salvage yards in areas adjacent to State roads, including federal-aid interstate and primary roads, is unsightly, visually offensive, depresses the value of the public investment in such roads, detracts from the safety and recreational value of travel thereon and destroys natural beauty, and therefore should be controlled in order to protect the public investment in such highways, to promote the safety and recreational value of public travel thereupon, and to preserve natural beauty.'
Section 2(b) defines a salvage yard to mean:
'Any place which is maintained, operated or used for the storing, keeping, buying, selling, or processing of salvage, or for the operation and maintenance of a motor vehicle graveyard, and the term shall also include garbage dumps and sanitary fills.'
Section 3 provides for an annual licensing provision for the operation of salvage yards as follows:
Section 4 provides in summary that where a salvage yard is located (1) within 1,000 feet of the nearest edge of the right of way of any road classified as a federal-aid interstate highway or any highway designated as part of the primary road system of the state, or (2) within 300 feet of the right of way of any state local service road, a license for operation may be issued or renewed only if the view of the salvage yard is effectively screened from the adjacent road by fencing. A state local service road is further defined by Section 2(d), Article 4, Chapter 17, Code, 1931, as amended, as 'Localized arterial and spur roads which provide land access and socioeconomic benefits to abutting properties.'
Section 4 also provides that one may continue to operate a salvage yard without screening by fences if the yard is not (1) within 1,000 feet of the right of way of any road classified as a federal-aid interstate highway or any highway designated part of the primary road system of the State, or (2) within 300 feet of the right of way of any state local service road.
Section 8 provides that whenever the operational salvage yard is located within the 1,000 or 300 foot set-back limitation defined in Section 4 and it cannot in the commissioner's opinion be effectively screened and the operator cannot lawfully comply with the provisions of this article and continue to operate, 'then and only in such event' the commissioner can (1) relocate the salvage yard with the consent of the operator, or (2) purchase or condemn the property rights of the operator and terminate all or part of the salvage business in question. This section further provides that if a salvage yard at any location is terminated under the provisions of Section 8 or by a court order as provided in Section 9 of the article, that the commissioner is thereafter inhibited from licensing the salvage yard at any location which is within the 1,000 or 300 foot set-back limitation of Section 4, unless and until the view of such yard from the highway is screened by fences as provided in the article.
Section 9 provides that the operation or maintenance of a salvage yard in violation of any provision of Article 23 is declared to be a public nuisance and gives the commissioner or the prosecuting attorney of the county in which such yard is located the right to apply to a court of competent jurisdiction for an injunction to abate the declared nuisance.
Section 10 provides the creation of a special...
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