STATE ex rel. THE CITY OF CHARLESTON, etc. v. KENNETH L. COGHILL, Clerk, etc.
No. 13355
Supreme Court of Appeals of West Virginia
Submitted May 16, 1973. Decided July 24, 1973. Dissenting Opinion August 2, 1974.
877
For reasons stated in this opinion, we are impelled to answer the first two certified questions in the negative. The third certified question is answered in the affirmative. The rulings of the Circuit Court of Grant County are reversed in part and affirmed in part.
Rulings on certified questions are reversed in part and affirmed in part.
BERRY, CHIEF JUSTICE, concurring:
I concur with the decision in this case as indicated in the first part of the opinion of the Court, but disagree with the propriety of some of the dissertation in the latter part of the opinion regarding procedural formalism, stability of the rule of law and the obligations of counsel to his clients. In the main, such discourse was not necessary for the decision of this certified case and in some instances was not applicable to the questions involved.
I am authorized to state that Justices Caplan, Haden and Sprouse join in this concurrence.
Robert R. Harpold, Jr., City Solicitor, for respondent.
NEELY, JUSTICE:
This is an original action in mandamus in which the City of Charleston, a municipal corporation of the State of West Virginia, seeks to require its clerk, Kenneth L. Coghill, to publish a certain notice inviting proposals from all persons interested in purchasing or leasing space included in a proposed off-street parking facility in Charleston. Respondent Coghill was authorized and directed to perform this duty by Resolution No. 228-73 which was adopted by the Charleston City Council on April 2, 1973.
The respondent clerk has refused to publish the notice upon the ground that
The respondent clerk first maintains that the Legislature‘s delegation of authority to a municipal corporation to determine the amount of space in a public parking facility which will be leased or sold for private business, commercial, or charitable uses is an unconstitutional delegation of legislative power. While noticing that respondent‘s position finds its source in the well known constitutional principle that a legislature may not abdicate its legislative power, it has also long been established law that a legislature may delegate legislative powers to municipal corporations as to matters of purely local concern. 16 AM. JUR. 2d, Constitutional Law § 251. This Court said in Syllabus pt. 1 of West Virginia Water Service Company v. Cunningham, 143 W.Va. 1, 98 S.E.2d 891 (1957):
““Under the police power of the State, the Legislature has the power to provide for the protection of the safety, health, morals, and general welfare of the public, and may delegate such powers to municipalities created by it.” Pt. 1 Syllabus, Hayes v. The Town of Cedar Grove, 126 W.Va. 828 [30 S.E.2d 726]. Point 6 Syllabus, State ex rel. Bibb v. Chambers, Mayor, etc., 138 W.Va. 701 [77 S.E.2d 297].”
This Court, therefore, holds that the Legislature is entitled to delegate power to a municipal corporation to determine the appropriate mix of public and private uses of a public parking facility, subject to the constitutional limits on the municipality‘s discretion which will be further discussed in this opinion.
The respondent‘s most serious challenge to the enabling legislation is that it does not fulfill a public purpose because it authorizes the allocation of space within a public facility for sale or lease to private individuals. In
“... [T]hat the lack of adequate planning and supervision of the location of parking facilities, the parking of motor vehicles of all kinds and the lack of adequate parking facilities for motor vehicles of all kinds substantially impede the free circulation of traffic in, through and from many municipalities in this State, impede the rapid and effective fighting of fires and disposition of police officers therein, contribute to the location and relocation of commercial and business enterprises outside of urban areas and retard the development of commerce and business within many municipalities in this State, thereby giving rise to urban blight and adversely affecting or threatening to adversely affect the tax base of such municipalities; that such parking crisis can be reduced by such municipalities providing adequate motor vehicle parking facilities strategically located there; that providing properly located terminal space for motor vehicles is a public responsibility; that fostering the development of commerce and business within municipalities, with the increased tax revenues resulting therefrom, is a public purpose; ...”
Courts are bound, except in extraordinary cases, by the findings made by the Legislature, and, “[a] fact once determined by the legislature, and made the basis of a legislative act, is not thereafter open to judicial investigation.” State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W.Va. 636, 171 S.E.2d 545 (1969).
Prior decisions of this Court have continuously enlarged the sphere of permissible government action in what was formerly considered exclusively the private sector. In Chapman v. Housing Authority, 121 W.Va. 319, 3 S.E.2d 502 (1939) this Court held valid the West Virginia Housing Act which had as its primary purpose slum clearance. In State ex rel. West Virginia Housing Development Fund v. Copenhaver, supra, this Court held constitutional
The constitutionality of the enabling legislation would be easily determined if it only authorized construction of facilities to be used exclusively for public parking. However,
Under the cases cited above in connection with the permissible sphere of governmental activity and the public purpose requirements, it is clear that most governmental activity has ancillary private benefits which are enjoyed by some private individuals more than other private individuals. For instance, in Chapman v. Housing Authority, supra, the West Virginia Housing Act was found to have as its primary purpose slum clearance and as an ancillary purpose, low cost housing. This Court
It is argued by respondent that adequate standards are not established by
“(b) The governing body or bodies, in its or their discretion, may provide by ordinance or ordinances:
“(1) For the leasing by the board as lessor of space in or on a municipal public works which is a
motor vehicle parking facility for any business, commercial or charitable use to such person, for such fair and adequate consideration, for such period or periods of time and upon such other terms and conditions as such body or bodies or the board may agree to. In connection with the leasing of any such space, the board may agree to provide in or on such motor vehicle parking facility such structures, accommodations or improvements as may be necessary for such business, commercial or charitable use or such space may be leased upon condition that the lessee shall provide the same in or on the space so leased. “(2) For the leasing by the board as lessor or the selling of air space over a municipal public works which is a motor vehicle parking facility for any business, commercial or charitable use to such person, for such fair and adequate consideration, for such period or periods of time in the case of a lease and upon such other terms and conditions as such body or bodies or the board may agree to. Any lease or deed of sale of such air space may contain provisions (i) authorizing the use of such areas of the underlying motor vehicle parking facility as are essential for ingress and egress to and from such air space, (ii) relating to the support of any building or other structure to be erected in such air space, and (iii) relating to the connection of essential public or private utilities to any building or other structure in such air space.”
Looking at the act in its entirety, this Court concludes that the first section,
In the landmark case of Wilmington Parking Authority v. Ranken, supra, the Delaware statute which authorized the parking authority only permitted leasing for commercial use to the extent that such leasing was necessary and feasible to finance and operate the facilities. This established a definite test for determining the extent to which private activities might be mixed with public ones; however, in West Virginia the Legislature has given the municipality more latitude which we hold to be valid. Economic considerations are not the sole criteria for determining whether commercial sale or leasing are necessary and ancillary to the public purpose. As noted above, West Virginia has incorporated other public policy objectives into other sections of the law. For example,
In the case of City and County of San Francisco v. Ross, 270 P.2d 488 (Cal. App. 1954) the California Court held that the acquisition of land by a city for the purpose of leasing it to an entrepreneur for the construction of parking facilities was unconstitutional where the city, by the terms of the lease, abdicated its right to control the charge for parking and left the entrepreneur free to charge such rates as the traffic would bear. Similarly, in the case of Price v. Philadelphia Parking Authority, 422 Pa. 317, 221 A.2d 138 (1966) where the Philadelphia Parking Authority was to construct a garage at an estimated cost of between eight and nine million dollars, the Pennsylvania Court struck down the proposal because it was a disguised attempt to effect a private purpose. The garage would have provided space for approximately 862 automobiles, and was to be leased to the National Land and Parking Authority for operation as a parking facility. In addition to the garage, the authority also agreed to lease the air space over the proposed facility to a private developer for the construction of a high-rise apartment complex. The completed structure was to consist of two apartment towers rising twenty-two floors above the garage containing in excess of one thousand apartment units. The developer was also allocated space on the ground and concourse levels of the garage for its own use or for lease to commercial tenants. The court found that the project was not for the public benefit because there would be a net gain of only one hundred and
Therefore, any abuse of
In the case at bar, respondent further challenges
“§ 1. Subject to the exceptions in this section contained, taxation shall be equal and uniform throughout the State, and all property, both real and personal, shall be taxed * * *, but * * * public property * * * may by law be exempted from taxation; * * * ”
“§ 9. The legislature may, by law, authorize the corporate authorities of cities, towns and villages, for corporate purposes, to assess and collect taxes; but such taxes shall be uniform with respect to persons and property within the jurisdiction of the authority imposing the same.”
This Court was confronted with the same issue of taxation in Chapman v. Housing Authority, supra, where the Housing Authority Act contained language which exempted from taxation property, including bonds, notes and other evidence of indebtedness of local housing authorities. This Court ruled that whether the property sought to be declared exempt from taxation was “public property” in the sense of the term as used in Section 1 of Article X depended upon whether such property was
It is settled law in West Virginia that bonds or other obligations of a public corporation, the proceeds of which are used to fulfill a public purpose, may be properly exempted from taxation. In Bates v. State Bridge Commission, 109 W.Va. 186, 153 S.E. 305 (1930) this Court stated that revenue bonds used to finance the building of a bridge are exempt from taxation. The Court said at p. 189:
“These bonds should be considered as instrumentalities of the government, designed to promote the welfare of the state, and therefore by law may be exempted from taxation. The purchasers ... must look ... to the revenues of the bridges for payment. By exemption from taxation, the commission will be better enabled to sell them on the bond market. It facilitates the public purpose. The bridges themselves and the governmental instrumentalities which bring them into existence are all impressed with public use and benefit, and it is well within the province of the Legislature to expressly exempt them from taxation.”
In the case of County Court v. Demus, supra, this Court upheld the statutory exemption from taxation for industrial development bonds. In that case the Court said at p. 406:
“This Court is unanimously of the view that the provisions of this Act are not in violation of Article X, Section 1 of the constitution inasmuch as the factual findings of the legislature in this act as heretofore related are legislative, not juridical, findings and this Court is bound thereby.”
The ability of local governments to engage in a business previously dominated by private enterprise has been firmly established by the courts, particularly where the public welfare is involved. In Puget Sound Power & Light Company v. City of Seattle, 291 U.S. 619, 54 S. Ct. 542, 78 L. Ed. 1025 (1933), the Supreme Court considered a challenge by a private power company to a state-authorized city power-plant which not only competed with private enterprise, but also held favored tax status by virtue of local ordinances. The Supreme Court said at page 624, 54 S. Ct. at 545:
“In conducting the business by state authority the city is exercising a part of the sovereign power of the state which the Constitution has not curtailed. The decisions of this Court leave no doubt that a state may, in the public interest, constitutionally engage in a business commonly carried on by private enterprise, levy a tax to support it, Green v. Frazier, 253 U.S. 233; Jones v. Portland, 245 U.S. 217, and compete with private interests engaged in a like activity. Standard Oil Co. v. Lincoln [aff‘d per curiam 275 U.S. 504]; Madera Water Works v. Madera, 228 U.S. 454; Helena Water Works Co. v. Helena, 195 U.S. 383.”
The case of Chapman v. Housing Authority, supra, holds that the conferring of a private benefit upon a limited number of individuals to further a predominantly public purpose, does not invalidate the project merely because all similarly situated individuals cannot receive
“It is said that the city, by furnishing five hundred families, who will be admitted to the dwelling units when completed, services for which the plaintiff and other citizens must pay, will result in a violation of this provision of the Fourteenth Amendment. This Court, however, realizes fully that slums are a great detriment and their clearance and the erection of sanitary houses in their stead will inure to the benefit of all the people of the community. That incidentally five hundred families will be benefited in a slight degree more than the rest of the community does not of itself constitute a denial of equal protection of the laws. Many municipal enterprises, though used by only a part of the people of the community, are, nevertheless, public property, and have been made in the interest of all the people of the community; for example, jails, poor houses, filtration plants, gas plants and public hospitals.”
For the reasons set forth in this opinion we find that
Writ granted.
HADEN, JUSTICE, dissenting:
I respectfully dissent from the views expressed in the majority opinion.
For laudable reasons and accompanied by elaborate legislative findings and declarations of constitutionally valid purposes beneficial to the public, the Legislature adopted
Like the majority, I have no quarrel with the finding that provision for additional parking facilities within a municipality is a public purpose. That, however, begs the more basic questions.
The statute explicitly delegates the legislative power as follows:
“(b) The governing body or bodies, in its or their discretion, may provide by ordinance or ordinances:
“(1) For the leasing ... in or on a ... motor vehicle parking facility for any business, commercial or charitable use to such person, for such fair and adequate consideration, for such period or periods of time and upon such other terms and conditions as such body or bodies or the board may agree to ....” (Emphasis supplied)
“(2) For the leasing ... or the selling of air space over a ... motor vehicle parking facility ....“, on the same conditions as set forth in subparagraph (1) above.
Code 1931, 8-16-4a (b) (1) (2) , as amended.
The statute also says that the city can accomplish the sale or lease of the property as follows:
“Any such lease may be privately negotiated without any public notice or advertising, and any such sale may be a public sale pursuant to the provisions of section eighteen [§ 18-12-18], article twelve of this chapter or such sale may be privately negotiated, notwithstanding the provisions of said section eighteen.”
Code 1931, 8-16-4a (b) (3) , as amended.
I note, as the majority has acknowledged, the statute making the delegation of power to the city is absolutely devoid of standards, conditioning or limiting the city‘s
Relevant to that point, one must also consider the fact that the delegation made to the city in
Thus, for an admittedly valid purpose, the Legislature purports to permit any municipality within the State of West Virginia to do that which the Legislature itself is not permitted to do: Acquire private property through the processes of eminent domain for a public purpose; and contemporaneously, subvert the public purpose to a private purpose, by lease or sale of the acquired public property to private developers for their devotion to predominately private purposes, without limitation whatsoever.
It shocks me that the majority explicitly recognized the unlimited and extralegal delegation made by this statute and then, blithely, held it to be constitutional on its face. But, we are told not to worry. With cleverness and with a guile that is not entirely innocent, the opinion author for the majority prospectively warns any municipality proposing to avail itself of the provisions of this statute that “a parking facility which has as its primary and dominant purpose the conferring of private benefits, with only ancillary public benefits, would be an unconstitutional use of the authority conferred by
Aside from the fact that this Court is not authorized to issue advisory opinions, it also appears that mandamus is hardly the proper remedy to control hypothetical, and merely prospective, intentions of municipal officers.
“Therefore, if any given parking facility project is challenged on the constitutional grounds of lack of public purpose a court must look to an expansive definition of public purpose and evaluate the project in terms of (1) the necessity of commercial sale or leasing of space to finance the parking facility; (2) the degree to which the facility will enhance or implement any preexisting or proposed general plan of urban development and renewal; and (3) the degree to which the proposed project will enhance the State‘s public policy of encouraging economic development and the expansion of industry and commerce.” Neely, J.---majority opinion.
This is followed by a final tongue-in-cheek caveat:
“Where it appears as a matter of fact that a proposed parking authority is merely a disguise for individual profit, a court is entitled to strike down the enterprise.” (Emphasis supplied). Neely, J.-majority opinion.
Obviously, the City of Charleston through its prospective bond counsel, would not have brought this statute to court for interpretation were it not for the fact that certain provisions of the Constitution give one pause for reflection before making a substantial investment in the construction of an authorized facility. As aptly expressed by counsel for respondent in his able brief: “It is well known that constitutional provisions directly affect the extent of permissible delegation.”
In my opinion, permissible delegation is that which is accompanied by standards adequate to notify the
For these rather basic reasons, I find it necessary to disagree with the decision of the majority.