Richard L. TRUMKA, Cecil Roberts and John Banovic, et al. v. CLERK OF the CIRCUIT COURT OF MINGO COUNTY, Sprouse Creek Processing Co.
No. 16659.
Supreme Court of Appeals of West Virginia.
Decided June 3, 1985.
332 S.E.2d 826
Submitted April 23, 1985. Concurring Opinion July 11, 1985.
Forrest H. Roles, Smith, Heenan & Althen, Charleston, Ronald E. Meisburg & William D. Florman, Smith, Heenan & Althen, Washington, D.C., Howard M. Persinger, Jr., Williamson, for respondents.
Southeastern Investigation & Security, Inc., R. Joseph Zak, Charleston, amicus curiae.
MILLER, Justice:
This case arises out of a labor dispute between members of the United Mine Workers of America (UMWA)1 and two coal companies, the Sprouse Creek Processing Company and the Rocky Hollow Coal Company. These coal companies filed an action below seeking to enjoin the striking UMWA members from picketing and doing other activities near their places of business. The UMWA counterclaimed that the coal companies were violating
The Circuit Court of Mingo County held that
It is well established in this jurisdiction that:
Repeal of a statute by implication is not favored in law. Syllabus Point 1, State ex rel. City of Wheeling v. Renick, 145 W.Va. 640, 116 S.E.2d 763 (1960).
See also Woodring v. Whyte, 161 W.Va. 262, 242 S.E.2d 238 (1978); Brown v. Civil Service Comm‘n, 155 W.Va. 657, 186 S.E.2d 840 (1972); Zigmond v. Civil Service Comm‘n, 155 W.Va. 641, 186 S.E.2d 696 (1972); Smith v. Siders, 155 W.Va. 193, 183 S.E.2d 433 (1971); Syllabus Point 6, State ex rel. Warder v. Gainer, 153 W.Va. 35, 167 S.E.2d 290 (1969); Roderick v. Hough, 146 W.Va. 741, 124 S.E.2d 703 (1961); State ex rel. Graney v. Sims, 144 W.Va. 72, 105 S.E.2d 886 (1958); State ex rel. Thompson v. Morton, 140 W.Va. 207, 84 S.E.2d 791 (1954); Syllabus Point 5, Harbert v. County Court, 129 W.Va. 54, 39 S.E.2d 177 (1946); United States Coal & Coke Co. v. Turk, 127 W.Va. 368, 33 S.E.2d 463 (1944); Belknap v. Shock, 125 W.Va. 385, 24 S.E.2d 457 (1943); Vinson v. County Court, 94 W.Va. 591, 119 S.E. 808 (1923); State v. Snyder, 89 W.Va. 96, 108 S.E. 588 (1921); Beck v. Cox, 77 W.Va. 442, 87 S.E. 492 (1915); Syllabus Point 1, Kimball v. Loughney, 70 W.Va. 765, 74 S.E. 953 (1912); Clemans v. Board of Education, 68 W.Va. 298, 69 S.E. 808 (1910).
In resolving the question of whether one statute has by implication repealed another statute, we have applied the following rule, stated in Syllabus Point 1 of
A general statute, which does not use express terms or employ words which manifest a plain intention so to do, will not repeal a former statute dealing with a particular subject, and the two statutes will operate together unless the conflict between them is so real and irreconcilable as to indicate a clear legislative purpose to repeal the former statute. Point 6, syllabus, Harbert v. The County Court of Harrison County, 129 W.Va. 54 [39 S.E.2d 177 (1946)].
See also Woodring v. Whyte, 161 W.Va. at 268-69, 242 S.E.2d at 242; Syllabus Point 1, Zigmond v. Civil Service Comm‘n, supra; Smith v. Siders, 155 W.Va. at 200-01, 183 S.E.2d at 437; Roderick v. Hough, 146 W.Va. at 745, 124 S.E.2d at 706; Syllabus Point 2, State ex rel. City of Wheeling v. Renick, supra; 1A Sutherland Statutory Construction § 23.09 (4th ed. 1972).
The legislature did not expressly state in
Penalties are provided for the violation of the statute ranging from a fine of not less than five hundred nor more than five thousand dollars and imprisonment may be imposed not to exceed twelve months. Violators of the statute are deemed to be rioters, who may all be charged with murder if any person is killed while the rioters are engaged in prohibited activity.
When we turn to
Under
As we have previously noted,
Although the coal companies raise a privileges and immunities argument under
Paralleling this problem is the lack of a developed factual record which would enable us to make a fully reasoned decision with regard to the Privileges and Immunities Clause question.7 In United Building & Constr. Trades Council v. Mayor of Camden, 465 U.S. 208, 223-224, 104 S.Ct. 1020, 1030, 79 L.Ed.2d 249, 262 (1984), the United States Supreme Court declined to make an ultimate resolution of the privileges and immunities question because of the lack of a developed factual record.
We therefore remand this case to the Circuit Court of Mingo County for further proceedings consistent with this opinion.
Reversed and Remanded.
McGRAW, Justice, concurring:
I take issue with the Court‘s decision to remand this case for further development of the record with regard to the coal companies’ privileges and immunities argument. This is a purely legal question which can be resolved without further factual development. Indeed, in footnote 7, the opinion writer implicitly recognizes the frivolity of the claim. Accordingly, I would reverse the judgment of the circuit court on this ground. However, since there are other issues raised by the parties, but not addressed by the Court, including the possible criminal record of certain guards employed by the coal companies, which cannot be resolved without a more detailed record than that presented in this appeal, I concur in the decision of the Court, as expressed in Justice Miller‘s opinion, to remand the case to the Circuit Court of Mingo County.
Notes
It shall be unlawful for any officer in this State to knowingly engage or employ any person not a bona fide resident of West Virginia, at the time of such employment, to do or perform any police duty of any sort therein, or in any way to aid or assist in the execution of the laws of this State.
It shall be unlawful for any corporation, company, firm or person, under any circumstances, to knowingly engage or employ any person not a bona fide resident of this State, at the time of such employment, to do or perform police duty of any sort therein, or in any way to aid or assist in the execution of the laws of this State.
It shall be unlawful for any person, not a bona fide resident of this State, as aforesaid, to do or perform, or to attempt to do or perform, any sort of police duty in this State, or, in any way, to aid or assist, or attempt to aid or assist, in the execution of the laws thereof. Any officer, corporation, company, firm or person, violating any of the provisions of this or either of the two preceding paragraphs shall be guilty of a misdemeanor, and, upon conviction thereof, shall be fined not less than five hundred nor more than five thousand dollars, and may, at the discretion of the court, be imprisoned in the county jail in the county in which the offense is committed not exceeding twelve months.
All persons violating any of the provisions of the third paragraph of this section shall be taken and deemed to be rioters and shall be proceeded against in all respects as such, as provided for in sections one, two, three, four, five and six [§§ 61-6-1 to 61-6-6] of this article. If any person be killed by one or more rioters engaged with him at the time of such riot, such rioter or rioters shall be guilty of murder and punished as provided by law in other cases of murder: Provided, that nothing in this section shall be so construed as to interfere with the right and duty of the governor to call upon the President of the United States for aid in the enforcement of the laws, in cases provided for in the Constitution.
No person, firm, company, partnership or corporation shall engage in the business of private detective or investigator or the business of watch, guard or patrol agency for the purpose of furnishing guards, patrolmen, or other persons to protect persons or property or to prevent the theft or the unlawful taking of goods, wares, merchandise, money, bonds, stocks, documents and other articles of value . . . without having first obtained from the office of the secretary of state a license to do so.