STATE OF WEST VIRGINIA HUMAN RIGHTS COMMISSION, etc. v. EDITH M. PAULEY
(No. 13473)
Supreme Court of Appeals of West Virginia
Decided February 18, 1975.
As the trial court attempted to order the parties to an unauthorized forum and to bind appellant to a penal bond if it chose to appeal rather than submit to the efficacy of the court‘s directive, when dismissal of the action alone was required, it exceeded its lawful powers. In so ordering the trial court has deprived the appellant of the use of his property without due process of law in violation of
For the foregoing reasons the case is reversed and remanded to the Circuit Court of Randolph County with directions that an order be entered dismissing the action from the docket.
Reversed and remanded with directions.
John H. Reed, Jr. for appellee.
CAPLAN, JUSTICE:
The principal issue to be determined on this appeal is whether the West Virginia Human Rights Commission has the statutory authority under the Human Rights Act as set out in
This is an appeal by the West Virginia Human Rights Commission, hereinafter sometimes referred to as Commission, from a final order of the Circuit Court of Kanawha County. The proceeding in that court was instituted by Edith M. Pauley pursuant to the provisions of Section 4 of the State Administrative Procedures Act, as embodied in
The circuit court affirmed the findings and decision of the Commission which held that Mrs. Pauley had discriminated against Charles Robinson in refusing to rent an apartment to him. It reversed the Commission, however, in its award of monetary damages, holding that the Commission had no statutory authority to make such award. The Commission prosecutes this appeal, seeking an adjudication of the question as to whether it has lawful authority to make an award of monetary damages.
It is not deemed necessary on this appeal to consider the facts in any great detail. Suffice to note that the complainant before the Commission, Charles Robinson, in answer to an advertisement in a newspaper approached Edith M. Pauley in an effort to rent an apartment. Mr. Robinson is black and his wife is white. According to the transcript of the testimony Mrs. Pauley told Mr. Robinson that she would study his references but indicated that they could have the apartment. Subsequently, however, she refused to rent the apartment to them. She told Mrs. Robinson that she could not rent to them because of the interracial marriage. This factual situation gave rise to the proceedings below and posed the questions set out in the first paragraph of this opinion.
It is readily acknowledged that the West Virginia Human Rights Act does not expressly authorize the Commission to make a monetary award of damages to a victim of unlawful discrimination. It is also acknowledged that an administrative agency such as the Human Rights Commission can exert only such powers as those granted by the Legislature and that if such agency exceeds its statutory authority, its action may be nullified
We are confronted with the question, one of first impression in this jurisdiction, of whether the Legislature intended to grant to the West Virginia Human Rights Commission the power to award damages to victims of unlawful discrimination. “The court is not limited to the mere words of a statute or what is expressly declared therein, and that which is incidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law. . . . An administrative agency has, and should be accorded, every power which is indispensable to the powers expressly granted, that is, those powers which are necessarily, or fairly or reasonably, implied as an incident to the powers expressly granted.” These expressions are found in 1 Am. Jur. 2d Administrative Law § 44 and are pertinent to the consideration of the question presented.
Human rights legislation is of relatively recent origin in this state but, as reflected by subsequent amendments thereof, the development of such legislation has been fairly rapid and has demonstrated on the part of the Legislature an intention to effectively cope with social problems arising from the practice of unfair discrimination.
The Human Rights Commission was first created in this state by an Act of the Legislature in 1961. The extent of the Commission‘s power was expressed in Section 1 of that Act as follows: “The commission shall
Compare that Act with its replacement, Chapter 89, Acts of the Legislature, Regular Session, 1967, now embodied in
Thus, it is readily discernible that the Legislature, by its recent enactments in the field of human rights, intended to and did provide the Commission the means with which to effectively enforce the law and meaningfully implement the legislative declaration of policy. If our society and government seriously desire to stamp
As a preliminary consideration, in relation to the question of whether an administrative agency has the power to award damages to a victim of unlawful discrimination, we quote with approval the expression of the New Jersey Supreme Court, as follows: “Initially we may say that, at this advanced date in the development of administrative law, we see no constitutional objection to legislative authorization to an administrative agency to award, as incidental relief in connection with a subject delegable to it, money damages, ultimate judicial review thereof being available.” Jackson v. Concord Company, 54 N.J. 113, 253 A.2d 793 (1969). Cf. Massachusetts Commission Against Discrimination v. Franzaroli, 256 N.E.2d 311 (1970); Gilliam v. City of Omaha, 331 F. Supp. 4 (1971).
Finding no constitutional objection to legislative authorization of such an award by an administrative agency, we must now determine whether the Commission is authorized under our Human Rights Act to make such award. Our basic determination must be whether the Legislature intended to extend such power to the Commission, even though it was not granted in express words. A careful examination of the provisions of
Section 10 of the Act provides the procedures to be followed when a complaint is filed with the Commission
Significantly, the above-code provision then authorizes the Commission, in addition to the authority to issue a cease and desist order, “to take such affirmative action, including, but not limited to, hiring, reinstatement or upgrading of employees, with or without back pay . . . as in the judgment of the commission, will effectuate the purposes of this article . . .” (emphasis supplied). Identical language is found in the New Jersey human rights act (
The term “including” in a statute is to be dealt with as a word of enlargment and this is especially so where, as in our Section 10, such word is followed by “but not limited to” the illustrations given. Pennsylvania Human Relations Commission v. Alto-Reste Park Cemetery Association, 453 Pa. 124, 306 A. 2d 881 (1973). See, F.P.C. v. Corporation Commission of State of Oklahoma, D.C. Okla., 362 F. Supp. 522 (1973); Phelps v. Sledd, Ky., 479 S.W.2d 894 (1972); and St. Louis County v. State Highway Commission, Mo., 409 S.W.2d 149 (1966).
Under the provisions of Section 10 of our Human Rights Act, the Commission is specifically authorized to order the offending party in an employment discrimination case to reinstate the employee “with or without back pay“. This shows that an award of money damages for economic loss was not a remedy unthought of by the Legislature. In this respect, at least, the Commission was expressly given the authority to consider economic loss to the victim of unlawful discrimination. Jackson v. Concord Company, supra; Cf. National Labor Relations Board v. Strong, 393 U.S. 357, 89 S. Ct. 541, 21 L. Ed. 2d 546 (1969).
A further indication that the Legislature intended to authorize the Commission to award money damages in proceedings before it is found in
We recognize, as did the learned trial judge, that there is no unanimity of decision among the courts on the issue under consideration. We believe, however, that those which permit the Human Rights Commission to
In relation to the secondary issue, alluded to in the first paragraph of this opinion, we are in agreement with the trial court and affirm its ruling. The record fails to reveal that the complainant, Charles Robinson, incurred any monetary loss. The Commission appears to have based its award of damages on his earnings per hour. However, since the record shows affirmatively that he lost no work by reason of this matter, he is entitled to no damages. Compensatory damages may be awarded by the Commission only upon proper proof of monetary loss. No such loss was shown in this case.
In view of the foregoing the judgment of the Circuit Court of Kanawha County is reversed insofar as it holds that the West Virginia Human Rights Commission is without authority to award compensatory damages to a victim of unlawful discrimination and is affirmed wherein it denies such compensatory damages and other monetary awards to the complainant in this case.
Affirmed in part; reversed in part.
BERRY, JUSTICE, dissenting:
I dissent from the majority opinion wherein it states that the West Virginia Human Rights Commission has authority under the statute creating it to award compensatory damages to a victim of unlawful discrimination. There is no authority provided for in the
I am of the opinion that authority to award compensatory damages by the Commission under the act would have to be specifically granted by the legislature with certain limitations set out in connection therewith.
RICHARD HAROLD THORNTON, JR. υ. CHARLESTON AREA MEDICAL CENTER, etc., et al. (No. 13484) Decided February 18, 1975.