Winkler v. State School Building Authority

Body ginia, Corporate Daniel, 99 S.Ct. A Public and 439 U.S. [551] ^[790] appear that at 795 [58 interests L.Ed.2d the U.S. 808], it would News United National ed January 1, 1990, Bank, Securing Capital as Trustee, Dat Improvement ‘stock’ represent either Revenue Bonds Series plan bonus stock Series, Subsequent within the 1990a as ‘voting-trust certificates’ and (Foot- Supplemented, Defen meaning securities laws.” Amended and Below, omitted). dants note believe, event, purposes of I Bank, National United National Virginia West share- standing under the Association, Banking as Code, statute, suit derivative holder Trustee, Appellant. 31-1-103, purpose substance and Nos. qualifications of the ESOP meets trust, respondents voting Supreme Appeals Court proceed on permitted should be Virginia. West basis. July 20, 1993. Submitted July

Decided S.E.2d 420 WINKLER and William S.E. Hickle, Plaintiffs

Diane

Below, Appellees, Virginia SCHOOL

STATE West AUTHORITY, and United

BUILDING Bank, Banking

National a National As

sociation, as Trustee Under Certain Between the

Trust Indenture Building Authority of Vir

School Body

ginia, Corporate A Public Bank, Trustee, Dat

United National as Securing Capital January

ed

Improvement Revenue Bonds Series Series, Subsequent as

1990a Supplemented,

Amended and Defen Below,

dants Building of West School

Authority, Appellant.

William S.E. WINKLER Hickle,

Diane Plaintiffs

Below, Appellees, OF VIRGINIA SCHOOL

STATE WEST AUTHORITY, and United

BUILDING Bank, Banking a National As-

National

sociation, Trustee the Certain Under by and Between the

Trust Indenture Authority Building of West Vir-

School McGraw, Jr., Gen.,

Darrell V. Atty. L. Dickinson, Eugene Atty. Gen., Asst. Charleston, for State of West Bldg. Authority. School Brown, James K. Anthony Majestro, J. Charleston, Kelly, Jackson & Cynthia A. Charleston, Majestro, for United National Bank. Campbell, Charleston,

David L. for ami- cus curiae Honorable Gaston Caperton, Governor of the State of W.Va. Calwell, Jacqueline Hallinan, Stuart A. McCormick, Charleston, & Calwell for ami- Bldg. cus curiae State & Constr. Trades Council. Thompson,

Michael D. Atty., Pros. of Jef- Town, County, ferson Charles amicus curi- ae. MILLER, Justice: Jr., Lees, Hunt, Lees, B.

James Farrell & Kessler, Charleston, plaintiffs. question The that we are asked to decide

Harry Rubenstein, Casto, Kay, appeal M. on this Cha- whether the Circuit Court Wise, ney, Morgantown, County Love of Kanawha was in & error when it John Kizer, Kay, Casto, Wise, July 9, Chaney, Love held its & order that Charleston, Capital Improvement amicus curiae Revenue Board and Re- Bonds, Barbour, funding 1993, Educ. of the Counties of Dod- Series Gilmer, Harrison, dridge, Lewis, Marion, appellant, Virginia State of West School Preston, Building (SBA) Monongalia, Randolph, Authority in the Taylor, amount of $338,145,000, Upshur. violating Tucker were invalid as Sec- tions X 6 Article of the Constitu- Crane, Patient, Michael Alison E. R. M.E. Virginia.1 tion of West These constitution- Charleston, Mowery, for amicus curiae provisions ability al restrict the State Virginia Legislature. upon issue bonds that draw the State’s Seufer, Jr., Roger Hunter, Howard E. D. general revenue funds. Bowles, Rice, Bentley, Claudia W. McDa- vid, Love, Martinsburg, Graff & for amicus I. curiae Boards Educ. of the Counties of Boone, Braxton, Calhoun, Berkeley, Fay- appellants The SBA and the Unit- ette, Grant, Greenbrier, Hampshire, (Bank). Han- ed National Bank Bank cock, McDowell, Mineral, Hardy, Logan, Trustee under a certain Trust Indenture Pleasants, Ohio, Raleigh, Ritchie, Roane, January 1, it between and the SBA dated Wirt, Wetzel, Wyoming. part financing Wood which is of the bond granted X Section. 4 of Article states: “The credit of the State shall not be State, to, any county, city, township, "No debt shall be contracted this or in aid revenue, except to meet casual deficits corporation person; or nor shall the State State, liability previous to redeem a of the assume, responsible ever or become for the insurrection, suppress repel invasion or de- any county, city, or debts liabilities of town- war; pay- fend the State in time of but ship, corporation person; nor shall any liability ment of ordinary expenses other than that for the owner, joint State ever hereafter become a State, equal- shall be any company stockholder in or association in ly years.” period twenty over at distributed least elsewhere, any pur- this State or formed for pose whatever.” Section 6 of X Article states: arrangements. appellees agreement, pledge are two citi- ture and the of funds to taxpayers liquidate sought spells zens and who declara- bonds. Section 12 out tory judgment agreement detail the injunctive attendant re- more trust for the against lief the SBA on in benefit bondholders. Section June County.2 sinking the Circuit Court of mandates that a fund be Kanawha created in Their claim reve- the State Treasurer’s office in 1993 Series order to pursuant liquidate Finally, nue bonds the bonds. under about be issued Section W.Va.Code, 18-9D-1, uncon- this statement is made: seq., et were stitutional because issuance of provisions “No of this article shall be provisions violated the 4 and Sections construed to authorize school build- of Article X of the West Constitu- ing authority any or in any time man- prohibiting tion state debt. pledge taxing power ner the credit or state, nor shall of the obli- grant- On June the circuit court gations or debts created the school right ed the Bank the intervene building authority the authority held, case. several hearings After were granted herein deemed to be obli- court, by July circuit order entered gations of the state.” 1993, held that issuance of the bonds was unconstitutional, enjoined and therefore the 14, It is Section together with the dis- issuing SBA from the bonds. The basis for on claimer the face of the bonds and lan- the holding circuit court’s was that the guage in the agreement, trust that causes Legislature the State bonds commit fund appellants the to claim that the bonds are the bonds’ retirement and that commit- this legal obligations neither of the State nor of an impermissible ment constitutes debt SBA, therefore, the that the bonds do against granted appeal the State. We this obligation not constitute a debt of the State 1993, 13, July expedited on on an basis under Sections 4 and of X 6 Article of the urgent because of the need a decision Virginia The Constitution. relevant on the issues involved in this A full case.3 proposed language bond is as follows: hearing July 20, on was held “The Series 1993 Bonds are limited obligations Authority payable of the sole- question challenged There is no ly from the pledged Trust Estate under by under were authorized the SBA Authority the Indenture. may The not provisions W.Va.Code, 18-9D-1, the et any time any or in manner pledge the seq. article, outline of that or taxing power State, credit nor regard arrangement, with bond is as obligations shall or debts cre- 4, Section may follows. Under the SBA by the Authority ated under the Inden- guidelines issue revenue bonds under obligations ture be deemed to be set out in that section. to Sec- Pursuant State. 6, building capital tion improvement fund treasury.” is “created in the state This “The being Series 1993 Bonds are is- pledge same section authorizes the on parity SBA sued the lien of certain liquidate this fund to outstanding revenue bonds. the Authority bonds of on provides deposit Section 8 further directions as to amounts in the Revenue Fund. bonds, the issuance of the trust inden- All Bonds issued Indenture are Earlier, 14, 1993, W.Va.Code, 18-9D-1, appellees by seq. on June filed Consequently, et original prohibition asking an in this us Court petition prejudice. we refused the without prohibit issuing the SBA from its Series prohibition revenue bonds. We deemed to be urgency, 3. Part as indicated in an affida- inappropriate remedy an because it available Bank, vit filed is that a decision must 2, only against judicial Syl. pt. officers. See 1993, August made before in order to meet Lombardo, City Huntington State ex rel. regulation an IRS If the deadline. deadline is (1965); Syl. pt. W.Va. 143 S.E.2d 535 met, some poten- $5 million will be lost on Blankenship, State ex rel. Noce v. W.Va. (See IV, refunding infra, tial bond interest. Part (1923); Syl. pt. Fleming 116 S.E. 524 v. Com missioners, refunding ques- discussion for a of the bond 8 S.E. 267 agency tion.) The SBA is a state administrative created pledge moneys appropri- CIENT secured TO PAY DEBT SERVICE ON THE Virginia Legisla- ated the West State BONDS.”5 National ture and transferred to United addressing Before par- merits of Bank, trustee, deposit in the as the case, ticular bond issue this it useful Revenue Fund established under the In- prior review our analyzing some of cases denture. AMOUNTS AVAILABLE TO Sections and 6 Article X of the West BE THE TRANSFERRED TO TRUST- Virginia Constitution. EE FOR DEPOSIT IN THE REVENUE FUND ARE SUBJECT TO ANNUAL II. BY THE

APPROPRIATION STATE THE LEGISLATURE. STATE LEGIS- A. LATURE IS NOT LEGALLY OBLIGAT- say We wish to at the outset that we are ED TO MAKE APPROPRIATIONS IN fully gravity aware of the of the bond issue AMOUNTS SUFFICIENT TO PAY case, particularly since it relates to DEBT SERVICE ON THE BONDS.”4 public system. our educational This Court applicable language agree- in the trust has not insensitive to the needs of our been upon by appellants ment relied is: system. ago Almost years school fifteen Pauley Indenture, Kelly, “All Bonds issued under the spoke forcefully these Bonds, including the Series 1993 are se- needs, stating Thorough Effi- pledge cured by a of Revenues. ‘Reve- cient Education 1 of Clause Section Arti- (i) any nues’ moneys appropriated means cle XII of the West Constitution Legislature, deposited empty was not an vessel.6 in We mandated Building Fund and transferred to the Pauley system that our entire educational Trustee in conformance with the Consti- closely appointed spe- be scrutinized and (ii) laws of any tution and the state judge cial to oversee this review.7 moneys, other or property income pledged by Authority payment the the to ques did not the Pauley address of Bonds. tion of the issuance of bonds to school fund appropriated Legisla- “Moneys by the building improve capital construction and ture Trustee and transferred the are appellees appear suggest ments. The of currently sole source Revenues. Thorough Education Efficient AVAILABLE TO BE AMOUNTS Clause can that are validate bonds THE TRANSFERRED TO TRUSTEE Legislature, authorized but are TO ARE SUBJECT ANNUAL APPRO- found be unconstitutional under Sections BY THE LEGISLATURE. PRIATION 4 and 6 of X of our Article Constitution. THE IS STATE LEGISLATURE NOT agree We cannot with such an assertion MAKE AP- generality Thorough OBLIGATED TO of LEGALLY because IN SUFFI- and Efficient Education in Section 1 PROPRIATIONS AMOUNTS Clause language right proposed Pauley, bond cited in the tutional in State.” In we creat- 4. text Preliminary higher public the cover sheet to the taken from ed a constitutional standard 1 which is Exhibit of the Official Statement Supreme United education than the States Court Expedited Appendix to Bank’s Appeal its Petition willing Indepen- in San Antonio create 12, July filed 1993. 1, Rodriguez, v. dent School District U.S. 411 93 1278, (1973). S.Ct. 36 L.Ed.2d 16 language is taken 5. The Trust Indenture Statement, Preliminary page 22 Official 7.This review was conducted the Honorable Appendix part 1 of the Bank’s to its of Exhibit Recht, 12, Judge Expedited July Arthur M. of the Circuit Court of Appeal filed Petition for County, summary Ohio the events following Pauley Kelly, supra, v. is contained in supra, Syllabus Pauley, we stated: In Point 3 of State ex rel. Counties Boards Education thorough mandatory requirements "The of 'a Upshur, Chafin, 376 et al. v. 180 W.Va. system found in and efficient of free schools’ (1988). S.E.2d 113 XII, Virginia Con- Article Section 1 of the West stitution, fundamental, make education a consti- 754 among judicial, legis- government in our cannot XII8 of Constitution

of Article and executive branches. specific provisions lative the more [W.Va. override Const, V, Every 4 contained in Sections art. reasonable limitation state debt § 1.] pointed resorted to Article X. We out construction must be 6 of Blankenship, Brotherton v. in order to sustain constitutionali- ex rel. courts 100, 108, 207 S.E.2d doubt must ty, 157 W.Va. reasonable be “Questions constitutionality of constitutional that: resolved favor governed by question. are in the main legislative construction enactment applied those general rules as questions the same are concerned with Courts (Citation omit- statutory construction.” relating legislative policy. gener- ted). City ex rel. Prince- also State powers legislature, See within con- al 457, 461-62, Buckner, 180 W.Va. limits, v. plenary. ton stitutional are almost S.E.2d considering constitutionality of an act legislature, negation legisla- frequently utilized the rule We have appear beyond power tive must reason- Sylla set out in statutory construction Syl. pt. able doubt.” State ex rel. King Trumka v. Point 1 of bus UMWA Gainer, Appalachian Power Co. (1984): don, 174 W.Va. (1965).’ Syl. S.E.2d statutory con- general rule of “The pt. Employees Public specific statute requires that struction Dodd, System v. Retirement general stat- given precedence over a be (1990).” 544, 396 S.E.2d subject matter relating ute same cannot reconciled.” where the two B.

Finally, acknowledge that when we constitu upon called to determine the begin legal our discussion re We enactment, legislative we are tionality of a garding validity of these school reve guided by restraints that we ‍​​​​​​‌​​‌​‌‌‌​‌​​​​​​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​​​​​‌​‌‍various catego by noting nue that there is a judicial powers, as we imposed upon our specific limi ry of bonds that override Syllabus Tony Point 4 of P. outlined contained in 4 and 6 of tations Sections Caryl, 185 Sellitti Construction Co. Legis They Article X. are bonds that the 584, (1991), 336 cert. de 408 S.E.2d W.Va. following proce the lature issuеs after — 969, -, nied, 112 S.Ct. U.S. in 2 of Article dures contained Section XIV (1992): L.Ed.2d 135 relating our to constitution of Constitution “ ‘ considering constitutionality al amendments.9 Under the amendment “In the enactment, qualified procedure, majority courts must of voters legislative of a restraint, voting approve the is recognition in of on issue must exercise due powers of the principle separation of suance bonds.10 law, Virginia pursuant ratify proposed held amendment, to such 1 of Article XII of the West 8. Section simply legislature “The shall the time Constitution states: it shall be in force from thorough ratification, by general and effi- provide part law for a such of the Constitution system of free schools.” cient of the State.” portion of Section 2 of Article The relevant Virginia 10.The Amendments to the West Con- Constitution states: XIV of the bonds, with the stitution that have authorized "Any to the Constitution of the amendment ratified, years they were are as follows: may proposed either house of the in State The Good Roads Amendment of 1920 extraordinary any regular legislature or at The Good Roads Amendment thereof; by two thirds of the mem- session ... Fifty Bond Issue for Roads Million Dollar thereto, proposed amend- bers elected (1948) Amendment thereon, ment, yeas nays shall be with the (1950) Bonus Amendment Veterans journals, special at a elec- entered on the tion, ... (1956) Amendment thereafter, Korean Veterans Bonus general election or at the next (1964) Amendment Better Roads published, to be at least and cause the same (1972) Development Amendment Roads before such election in some three months (1972) Buildings Amendment School every county Better newspaper in in which a news- (1973) Bonus Amendment printed. majority quali- Vietnam Veterans paper If a is (1973) voters, Highways polls Amendment voting question Better on the at the fied through or pursuant to a constitutional revenue bonds other similar ob- Bonds ligations way legislative by enactments. the more bond override amendment ex Board See State rel. Governors they ap- because were restrictions limit University O’Brien, v. pur- specific for the «the voters proved 97, 88, 446, 94 S.E.2d Thus, in the amendment. contained poses County ex rel. Moreover, State Court our rules of constitutional traditional Demus, County Marion 148 W.Va. construction, supersede these bonds (1964), we com- ex rel. general bond limitations. See State pared purpose 6 of X of Section Article Blankenship, supra; Brotherton v. State 4, noting: “Section of Arti- Section Buckner, City rel. Princeton su- ex imposes upon Xcle of the Constitution do fall pra. this case into respect state limitations with to indebted- category approved of bonds consti- imposed upon ness similar to those counties amendment.11 tutional X, and cities Article Section Indeed, plain lan- Constitution[.]” guage designed is of Section 6 restrict C. granting the State from credit to subor- provisions constitutional The two such as munici- political dinate subdivisions case, issue in this 4 and 6 of Sections counties, palities and as well as forbid X, interpreted by Article been granting assuming credit or purpose of re Court serve common private persons or liabilities for debts stricting Legislature’s ability to create other entities.13 long-term provisions These are of debt.12 case; together cited the same howev ten Earlier, Bridge in Bates v. State er, pur provision separate each serves a Commission, 153 S.E. pose. The restrictions contained Section alluding pur to the 306-07 X, X 4 of Article deal with creation of pose spoke 4 of Article of Section experience agencies about “the of the mother state long-term debt the State its (Citations Housing legislatures omitted). appropriations.” Qualified Veterans Bonds Amendment make (1984) (1992) Veterans Bonus Amendment pointed supra, although in note 13.As we out 6a of Article X not involved in this Section limitation the restrictions under 11. Another case, exception prohibitions provides to the it an X, 6 of Article which limits the State’s Section found in Sections 4 and The text Section money municipalities, extension of credit or counties, 6a is: subdivisions, political other "Notwithstanding provisions of section 6a Article X. This article found Section of article, (1) legislature may ap- six of this (1) appropriate funds permits the State to funds, state matching propriate maximizing grants-in-aid for use in or state funds (2) matching and to dedicate for federal public purposes for thereof, tax, portion state or a to the benefit a department, any States from the United bureau, or counties, municipalities, or other and use of thereof, any agency commission or or was political The amendment subdivisions. source, any county, municipality or other to aspects adopted We some of in 1972. addressed State, political of the other subdivision rel in State ex Boards Edu- this amendment of terms, subject to circumstances and such such 219, Chafin, S.E.2d 113 cation v. 180 W.Va. 376 legislature conditions and restrictions as may prescribe by (1988), County Build- ex rel. Kanawha and State law, (2) legislature and 195, Paterno, ing v. 160 W.Va. 233 Commission may impose or or a state tax taxes dedicate (1977). X is 6a of Article not S.E.2d 332 Section any portion or or thereof for state tax taxes this case. asserted in counties, by municipali- of use the benefit and political of the State ties or other subdivisions Recovery-Solid proceeds any public purposes, rel. of such In ex Resource State Gill, 109, portion Disposal Authority imposed 174 W.Va. tax taxes or Waste v. or dedicated or counties, 111, 590, (1984), we echoed to such 323 S.E.2d to be distributed 592-93 thereof political purpose municipalities of other subdivisions “The clear these same sentiments: integrity provisions such circumstances protect is to the fiscal the State under these of subject terms, and restric- any pres- conditions by prohibiting to such of the State creation of by legislature may prescribe law." subsequent obligate as the tions ent indebtednеss that would 756 her,”14 by necessary agencies’ debts of which operational contracted those of expenses

the framers our 1872 Constitution were general from future “provided this aware therefore funds: indebtedness, should not contract ex state “Ordinarily, the creation of a State board cept specified 109 W.Va. instances[.]” requires appro- commission which an 189, Moreover, in 158 S.E. at 307. State at priation public funds carry out its Housing Develop rel. ex purposes is treated not as the creation of Waterhouse, 196, v. 158 W.Va. ment Fund debt, although its generally contem- 724, 208-09, (1974), pur 212 731 S.E.2d plated year year, continuation from X given Article was pose Section 6 of period, and for an indefinite must neces- summary: following “This Court ex sarily future appropriations. involve ‘purpose noted that pressly Section 6 Practically agencies all by created guard against Article X was to Legislature require appropriations from the State in granting credit aid of time, time necessarily and that was any county, city, township, corporation or contemplated they at the time were cre- Quoting person_’.” Dyer State ex rel. ated.” 134 W.Va. at S.E.2d Sims, 278, 289, v. S.E.2d (1950), grounds, rev’d on other type Much of this same of reasoning also 71 S.Ct. 95 L.Ed. U.S. recognized was in State ex rel. v. Hall Thus, we believe our cases make clear 659, 672, Taylor, 154 W.Va. 178 S.E.2d pro- the substantive distinction between the (1971), “[A]dmittedly we where said: it of Sections 4 6 of Article X

visions contemplated statute rent that the case, our Constitution. In this we deal paid general will be from revenue funds to only Dyer with Section 4. In State ex rel. appropriated by Legislature to the Sims, regard supra, v. to Section 4 of agencies departments various X, Syllabus Article we stated Point 5: government year state from year.” X, “Under Article Section Moreover, in ex rel. Board Gover- State, Legisla- Constitution of Sims, 239, 244, nors power ture is to create without an obli- specifically recognized gation funds, appropriate pur- for a Legislature’s pension creation of a pose section, said mentioned system, required periodic which funding Legislatures. legislation, future Such if revenues, did not constitute valid, otherwise would be void under said “the creation a debt inhibited Section section, creating a debt inhibited 4 of Article X of Constitution.” thereby.” It is agencies the fact that state Although Syllabus wording Point 5 services, recurring Sims, needs for such as rental Dyer supra, of State ex rel. space services, awkward, utility that form the somewhat it seems clear that the basis for approving our cases literally did not mean that the State’s Court con- lease-financing arrangements. agency entered into a state tract such situation, year payments over than the lease extended more one are used to constitutionally retire Dyer recognized infirm. revenue bonds that were by agencies, creating building. the construct Legis- state See rel. State ex itself, Moore, obligating lature was a constitu- State Bldg. Comm’n v. 155 W.Va. manner, 212, tionally permissible pay funds 184 foregoing S.E.2d 94 Bates, 188-89, commonwealth; prosecuted against The full text of 109 W.Va. at illi- 14. 306-07, regard Virginia’s 153 S.E. at with guaranties enterprises beral contracts and of plight, financial is as follows: by governmental agencies had been made det- formed, interests; "When our Constitution of 1872 was public rimental to her and officers experience of the mother state with debts agencies always had not been zealous her, by compel contracted with suits to affairs; public careful in the conduct of payment, were fresh in the minds of the fram- juries against leaned toward individual as ers of that Constitution. Numerous suits end- the commonwealth.” ing heavy judgments and costs had been

757 rangement, approval special for our but differs because the rationale formed basis ordinarily generated entered into fund is a tax or a fee energy supply contract of itself, Virginia University facility ex by the West State from the such tolls for the Reсovery- road, bridge parking-garage Resource use of a rel. West Gill, Authority Disposal Taylor, v. In 154 Solid Waste fees. State ex rel. Hall v. 109, 56, even 672, W.Va. 323 S.E.2d 590 174 at 178 S.E.2d at we stated W.Va. a lease. though the contract was not We special fund basis for the con- 1 Syllabus stated in Point of Gill: “Bonds cept; political payable a state or subdivision ‘separate “It is difficult to state the utility solely out of revenue derived from a precisely. application fund doctrine’ Its by money public acquired of a nature among appellate varies somewhat courts derived from the bonds do not create debts applied uniformly various states. It is against within the constitutional inhibition projects in relation to or facilities which public the contraction of debt.” self-liquidating, the toll such as bridge cases. courts hold that the Some

Moreover, foregoing rationale also applies doctrine case of a fund approval behind our of the issuance of was special created excise tax as distin- industrial and commercial revenue bonds property guished from taxes.” W.Va.Code, 13-2C-1. Under this legislation, county acquires land con special provided fund doctrine the ba- private corporation tracts to lease approval sis for both our of the State Road the land for a rental sufficient to retire special generate fund to rev- Commission’s county that are issued building enues to construct the for the De- See, facility. secure the funds to build the partment Highways ex rel. State e.g., County rel. v. State ex Ohio Comm’n Moore, Building supra, v. Commission Samol, 714, (1980); 2 Beverage use of the Alcoholic Con- County ex rel. Court Marion profits in the same case trol Commission’s Demus, supra. All these County v. vari to fund of its the construction warehouse. types arrangements ous lease have been supports toll-bridge The same our rationale generally accepted elsewhere as valid dealing our cases with the cоn- cases16 and infirm against a claim of constitutional debt struction of student dormitories West ity.15 Virginia University special out of student gener- special fees.17 The fund doctrine is addition, given approval we have our ally recognized jurisdictions in other as not that are payment to the of revenue bonds being violative of constitutional debt limita- liquidated special out of a fund. This con- lease-financing ar- tions.18 cept is related to See, Governors, 183, See, e.g., Bd. e.g., Opinion No. 278 17. State ex rel. the Justices O’Brien, (1965) (bonds supra. University v. Ala. 178 So.2d 76 correctional facilities and financed build buildings from those not consid rental income Pueblo, See, e.g., Davis v. 158 Colo. debt); v. state Cochran ered unconstitutional (bonds (1965) by parking financed fees P.2d 671 Middleton, Mayor 14 Del.Ch. 125 A. 459 and thus did not violate were revenue bonds (1924); City-County Library Dist. v. St. Charles indebtedness); Perl- constitutional inhibition on Library Bldg. Corp., S.W.2d 64 St. Charles Civic Ass’n v. Board Directors Baker Mack Metro, of 371, arrangement (lease-purchase be (Mo.App.1981) Dist., 140 Colo. and Sanitation library nonprofit corporation tween district and (bonds (1959) sewage issued to build P.2d 685 lending of state not an unconstitutional disposal plant revenues derived and financed Auth., credit); Bldg. Jersey Enourato v. New subsequent operation from its was not unconsti- (1982); Halstead v. N.J. 448 A.2d 449 indebtedness); Syl. v. tutional Pt. Naftalin (Okla.1977); McHendry, P.2d McFarland (1958) King, N.W.2d 185 252 Minn. (1969); Barron, S.D. 164 N.W.2d 607 (indebtedness if not considered unconstitutional Lowder, Bldg. Municipal 711 P.2d 273 Auth. fund, proceeds payable only special from a Giessel, (Utah 1985); State ex rel. Thomson levy collec- are derived from a and tax of which (1955). 577 271 Wis. 72 N.W.2d specific purpose); tion authorized that Cty. Fac. Comm’rs v. Idaho Health Board of (1974) (bonds Auth., See, e.g., 96 Idaho 531 P.2d 588 State ex rel. State Road Comm’n solely O’Brien, (1954). hospitals and financed issued to build 82 S.E.2d 903 argue spe- both the appellants

The that built-in restraints that must be consid- service Legislature cial fund doctrine the contract ered when it authorizes agreement concept or still lease involve legislation for the issuance bonds. ultimately be said to funds that can come case, In this no such bonds have identi- potential generаl from revenue sources. payment fiable because controls their Thus, they principles, assert that these directly general from revenue fund. acknowledged accept- which we have be statutory There is no restriction on the violating X, 4 of able as not Section Article may total value of SBA that be really are no different the more than direct and, special-fund unlike or lease- payments general from revenue funds used payment bonding, there is no identifiable in this case. source controls total value of disagree appellants We because bonds to be issued.19 overlook First, significant several differences. law, foregoing general From the special doctrine is on the fund based fact emerges principle that Section of Article specific that a source revenue is re- designed X prohibit is not the State or quired to be identified and committed to agencies issuing State’s from revenue repayment beyond of the bonds mere payable bonds that are from contracts that appropriations annual from the require payments rental of another state Second, by identifying revenue fund. require agency necessary other recur- funds, dedicating specific source ring expenses utilities; contractual such as process automatically limits total value nor provision does this pre- constitutional Legisla- of bonds can be used. clude the issuance of revenue bonds which quantify ture have to initially will special are to be redeemed from a fund. willing amount it is to commit order to special avail itself fund doctrine. process Much the same occurs in the D. case arrange- of a service contract or lease appellants place primary reli There, ment. source revenue is the ance on Virginia State ex rel. West Re payments paid rental the amounts Recovery-Solid source Disposal Waste the service contract. These amounts are Gill, Authority v. ultimately controlled the cost of the S.E.2d 590 in particular, Syl on

building, which the total determines value 3: labus Point of bonds to be issued. The cost of the turn, proposed building, governed will be “The ultimate in determining issue by economic and market considerations financing whether bond creates a state project which limit cost of the and the X, debt in violation of Article Section total value bonds to issued. be the West is not [of Constitution] words, funding sources, other these whether may paid the bonds be from approved cases, which we have in earlier legislative appropriations, future but rents, rates, charges Bldg. from and for the fees Connelly, for the use Addition Comm’n v. 39 N.M. or to (1935) services furnished be furnished (issuance 46 P.2d 1097 of bonds financed by prohibition facility each did not violate constitutional special by filing from a fund created fees from indebtedness); Eakin v. State ex requiring civil did not actions constitute debt Bd., Capital Imp. (Ind. rel. 474 N.E.2d constitution). a referendum under state See 1985) ("It through [the limita- constitutional] Annot., generally Obligation Payable Spe- From tion [on indebtedness the interests of the that] Fees, by Imposition cial Fund Created Penal- generations protected being saddled ties or Taxes Excise as a “Debt" with Constitu- spending Exceptions excesses.” to the con- Limitation, tional Debt 100 A.L.R. 900 special stitutional doctrine inhibition include the funds bonds); Woodmansee v. (1940) City, Kansas 346 Mo. S.W.2d say Legislature This is not could (voter endorsement of bond issuance to finance by merely identifying validate these bonds city expansion constitutionally market unneces- total dollar amount that could issued. There sary because bonds financed from income from necessity identifying would still be the market, city and thus did not amount to uncon- particular payment. source of their funds for indebtedness); Capitol stitutional State ex rel. legislatures It is difficult for us to understand successive are obli- how whether case, facts, its appropriations.” make such the Gill undеr could gated to be change construed to radical authorize a persuasive simply find be- do not Gill We our Certainly, from earlier bond cases.21 in there a revenue source cause was Gill financing arrangement the for the bonds in the that inde- liquidation of was for bonds markedly from fi- Gill was different the grant of direct from the State’s pendent a nancing for in arrangement the bonds this Gill, In the fund. West language case. critical Gill fol- Recovery-Solid Waste Resource lengthy lowed a discussion and citation of Authority (Authority) autho- Disposal long-term approving by contracts cases to a rized to issue revenue bonds construct public agencies purchase for the of neces- generating facility Morgantown. power this sary services and concluded with lan- to Virginia University had contracted why no guage: “We see reason the so- of its ener- purchase a substantial amount ‘service contract doctrine’ not called should gy Authority use from the and the Univer- the apply to contracts entered into State payment for sity’s this service was to be agencies buy energy.” its to W.Va. liquidate to the the used (Citation S.E.2d at 595. omit- Authority. ted). case, appellants argue In the instant the import of to obvious Gill was loosen although legislative appropria- future that the rather restrictions created in bonds, harsh may the it pay tions be used Taylor, supra, ex rel. v. State Hall as language clear from the bonds the use of lease contracts to finance the legal obligation themselves that there is no Hall, retirement revenue bonds. requiring Legislature ap- to make such Building Legislature authorized the State propriations. Certainly, Syllabus Point $24,000,000 Gill, Authority to if in that issue some rev divorced from facts case, support appel- proceeds used enue bonds. The of the bonds could be However, position. syllabus were to be used to build several office lants’ housing buildings purpose a point conclusory was derived from a state- vari ety agencies. of state The revenues for opinion. ment at the end of the There was impact repayment of the bonds were to come no discussion therein of its on Sec- paid by agen X rents the various state tion of Article of our Constitution from leasing buildings. We concluded beyond the facts of cies Gill. agencies funded that because the were standpoint, Syllabus if From a literal appropriations from general revenue Point 3 of is the litmus test for Gill Legislature Legislature, that would constitutionality of bonds issued a state required pay agencies’ rents thus be authority, then the constitutional limitation arrangement This from such funds. would meaningless. 4 of Article X is of Section of Section 4 create a state debt violation interpretation, Legisla- such an Under X Article our Constitution. agen- State or its ture could authorize the rectify long Certainly, attempt Hall cies to issue bonds amount so Gill’s if public pur- might better understood its as the bonds are used for been precise. long language more Gill also so the terms of the were pose,20 and rel. might have mentioned ex clear that the bonds are State State bonds make Moore, 155 Legislature Building v. obligations state and that the Commission where we no 184 S.E.2d obligation to fund W.Va. bonds. augured legislative appropria Gill such radical constitutional requirement If 20. The law, departure one won- may only public purposes has from our revenue bond be made for tions years why three case was needed recognized in a cases. ders the test been number our Gainer, Department Employment Lippert in State ex rel. ex v. 146 W.Va. later State rel. Manchin, (1961); Security v. ex rel. Bd. Gover 122 S.E.2d 618 State There, (1987). Sims, approved ‍​​​​​​‌​​‌​‌‌‌​‌​​​​​​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​​​​​‌​‌‍revenue bonds 140 W.Va. 82 S.E.2d 321 nors Sims, liquidated special (1954); tax on were ex rel. Catron wage employers earners. 57 S.E.2d 465 760

approved Consequently, authorization of no legislative the there is violation of Sec- tion 4 of X. Article the use of certain State Road Fund monies space Department rent office for the for may legal sophistry While we admire the building by in Highways of a constructed argument, practical of this it defies our Building the State Commission. rental judgment. paid, If the are not it bonds is liquidate payments were to be utilized to obvious that the State’s credit will be im- by paired. in a revenue bonds issued the Commission The default on bond issue of this hardly expected size can be to draw cheers facility. ap- to also order build the Moore brokerage the or from bondholders their statutory proved separate provision of a rating or houses the bond financial servic- special authorized a fund from the that sale es.23 liquor by agencies “to of be used various or departments government pay- of state for considering of validity the space ment of rent for office leased from bonds, Taylor, supra, Hall v. admonishes Building as a the Commission means of us the duty that of this Court ... “[i]t plan paying principal the of and the interest on consider the substance of the envi- by in determining sioned the statute the building of ‘state revenue bonds the state’ question constitutionality.” the ... issued ... to finance construction (Citation omitted). at 178 S.E.2d at 57. buildings[.]” the 155 W.Va. at Moreover, espoused concept Hall that a Syllabus 105. S.E.2d at We found in Point legislative that “mere declaration a state legislation 4 of at Moore issue is not debt created ... not conclusive or therein did not violate Section of Article binding on a court.” 154 W.Va. at ofX our Constitution.22 Following at jurisdictions, S.E.2d other We earlier observed none our judicial Hall held that it is a a and not cases, Gill, including prior have ever con- legislative question “[wjhether a state debt sidered a revenue bond mechanism similar by is created [a] statute[.]” present one case. Our earlier 674, 178 S.E.2d at 57. for cases share common mechanism con- juris There are several cases from other i.e., acceptance, stitutional the revenue dictions that have dealt with revenue bonds payable special bonds were from either a in a fashion similar to the bonds purpose fund dedicated to the for which appellants point Dykes case. The they payable were issued were from Virginia Transportation Northern Dis payments lease rental or similar contract Commission, trict 242 Va. arrangements necessary for service on — (1991), denied, -, cert. U.S. part public agency. of the Here we are S.Ct. 119 L.Ed.2d 201 where by faced with bonds issued the SBA which County Supervisors the Fairfax Board of liquidated by legislative appropria- will be $300,000,- entered into a contract to issue general Legis- tions from the fund that the 000 in revenue bonds to finance construc obligated legally lature is not to make. tion a highway. Supervi The Board of The ultimate contention in favor agreed pay the liquidation sors constitutionality is bonds’ that because out of its revenue funds. legal obligation However, there is no pay qualifying the contract had lan bonds, there is no guage stating: then state debt created. Syllabus Building 4 of Virginia Point Moore states: West Commission of buildings construction of and related Chapter "To the extent that Acts of the departments facilities to used various Session, 1971, Legislature, Regular authorizes state, agencies question statute West directs the Alcohol Bever- does not create or debt incur state in viola- age pay spe- Control Commissioner into a provisions tion of Section of Article X cial fund created that statute office $3,600,000 Virginia." Constitution of of the state treasurer the sum of annually, profits accruing from sale state, infra, liquors 23. As indicated note these alcoholic for the ulti- new purpose paying principal per- mate revenue bonds would amount to almost 15 the interest on bonds issued and sold of our cent total revenue bond indebtedness. opinion and held the bonds to be constitu- shall be

“[NJothing in this Contract tional. It came to this conclusion: Supervi- Board of obligate the “[W]e deemed to VII, 10(b) applicable any hold that Art. is not County appropriate of the § sors here no constitutional debt was to be because any payments sums on account at by County[.]” This incurred the Va. County hereunder. by the made pledge of S.E.2d at 10. This reversal was based not constitute a Contract shall premise financial documents did Coun- on the faith and credit of Fairfax the full County “impose legally in not enforceable obli- Fairfax ty a bond or debt of gation appropriate the County Article VII of on the 10 of violation of Section repay the funds or to bonds.” Va. of the Commonwealth.” the Constitution (Emphasis origi- in 361-62, at 3. 411 S.E.2d at 9. 242 Va. at nal). arrange- challenge made that this A was against long- Much the same result was reached prohibition the

ment violated Constitution, Steup Housing Finance Au Virginia in the v. Indiana term debt 72, 402 N.E.2d 1215 thority, debt be submitted 273 Ind. required that such which where, The in the revenue bond statute of the voters. approval cop- itself, language to the effect that initially recognized this there was Supreme Court clause, obligation of the prac- on its the bonds were not an escape but focused tract obligation the any nor there state tical effect: legislature liqui fund the part of the permits “Although the contract It was admitted that dation of bonds. promised appro- county to discontinue its retire the was to come revenue to prac- must also consider the priations, we legislative appropriations, but effect of such a calamitous event tical court stated: county in fact deciding whether legislature may appropriate to continue to service funds

would be bound “[T]he and, therefore, However, has incurred a no capital issue reserve fund. bond to the VII, 10(b). proscribed by Article fund ‘debt’ funds can flow into the reserve § recognizes importance county appropriation an unless and until there is integrity.... fiscal legislature. its The Act allows but appropriations.” require such does county recognizes also the disas- “The (Em- Ind. at 402 N.E.2d at 1219. follow fail- effect that would trous phasis original). supervisors to make ure the board county appropriation and the an annual agree with the ratio- simply We cannot would never argues that such a disaster Virginia and Indiana courts as nale of the argument That permitted to occur. Obviously, where too chimerical. we find it is- acknowledges that the bond implicitly revenue bonds only source of funds for practical effect of sue would have the logic it defies general appropriations, county. long-term binding the debt Legislature obligation has no say that the “ ^[*] ... It ^[*] obviously contemplated ^{[*] [*] [*] [*]} ing fund such bonds. These ignore practical reality that will courts are will- if there is a upon a credit visited state’s of the bonds accor- be that the issuance these courts fu- on the bonds. What would bind default the contract dance with plain language ignore the have done is to supervisors to make annu- ture boards of legislation. effect of the bond practical funds to of sufficient appropriations al Manifestly, the ani- finance the bonds. logical ap rational and We find a more contract ar- mating purpose of the bond Man ex rel. Ohio Funds proach debt, long-term rangement is to create Walker, 55 Ohio St.3d agement Board submitting to a vote of the debt without (1990). There the Ohio N.E.2d 927 County.” Fairfax qualified voters of Man Funds legislature created Ohio 364-65, 4-5. 411 S.E.2d at 242 Va. at the Trea and authorized agement Board anticipation notes. rehearing to issue However, granted a surer the court notes were de- legislation, the and, reversed its Under margin, a 4-3 the court legislation. W.Va.Code, 18-9D-6, not to be a debt or indebted- dared bonded creates Moreover, treasury ness the state. the notes in the “state a school building “ capital improvements '[Tjhey carried this disclaimer: do not to be expended fund * * * represent authority or constitute a debt or for the purposes of this bonded indebtedness state within the This same authorizes article.” section meaning any provision pledge Con- part Ohio “to all or such SBA stitution holders owners of paid building capi- revenues into the school [....] given right, sense, help we logic and common cannot the bondholders. for the benefit of fund statutory the sur- but conclude that scheme Moreover, 17 was Section added rounding bespeaks legisla- these bonds 18. It that Chapter Article 9D directs requirement they to funded. tive be in an amount of interest by unencumbered Much the conclusion reached same was ($1,000,000) Million held Dollars Supreme One Ohio Court ex rel. State acting trustee be transferred any bank as Management Ohio Funds Board Walk- fund. revenue This er, State’s if we were our supra. Even to close goes explain: on to eyes statutory language, section could this we practical close minds to the conse- purpose transfer of funds not our “The To quences arrangement. revenue is to facilitate required this section is accept Legislature appropriation premise a like amount to the and would capital improvements not bound to fund bonds building school default, thereby impairing the cred- fund, budget for allow a within the state State, rating assumes commencing day on the it a naivete year first fiscal simply possess.26 do part our that we not July, one thousand nine hundred nine- W.Va.Code, 18-9D-14, percent 15 of the State’s complete would constitute almost text of 25. following W.Va. at 434 S.E.2d at stated herein 189 in- other bonded indebtedness. The page Analysis formation from 3 year Receipts Expenditures for fiscal 1991- particularly view of the It is true in fact West issued Auditor of State of 92 issued constitutional if we exclude amendments, bonds Virginia: revenue new bonds SBA’s WEST VIRGINIA "STATE OF BONDS OUTSTANDING STATEMENT OF JUNE BONDED INDEBTEDNESS

SUMMARY OF GENERAL OBLIGATION BONDS

DEPARTMENT OF HIGHWAYS: 22,400,000 $ AMENDMENT 68,400,000 AMENDMENT 208,000,000 AMENDMENT 298,800,000 $ OF TOTAL —DEPARTMENT HIGHWAYS 74,000,000 BONDS

BETTER SCHOOL BUILDING 372,800,000 $ OBLIGATION BONDS TOTAL —GENERAL DEBT OTHER 8,730,000 BRIDGES

TOLL 4,795,000 BUILDING COMMISSION STATE 30,000 STATE ARMORY BOARD 187,381,000 HIGHER EDUCATION Accordingly, taxpayers. determining we hold that Our test Building authorized under the bonds School to make a whether court decision retroac- Authority Act indebtedness constitute an recently tive in Syllabus stated Point 4 State in Section 4 of violation of Mangum, of Kincaid v. X of the Constitutiоn. Article (1993): S.E.2d Syllabus extent that 3 of To the Point “ determining ‘In whether extend Recovery-Solid ex rel. Resource Waste retroactivity, following full factors Gill, supra, holds Disposal Authority v. First, are to considered: the nature of However, contrary, it is overruled. the substantive issue overruled must be sections, assigned the reasons in the next If the determined. issue involves a tradi- decline to make this decision retroactive tionally law, settled area of as such con- earlier so as invalidate the bonds issued. property distinguished tracts or do we foreclose the from exercis- Nor SBA W.Va.Code, 18-9D-9, torts, right and the ing clearly its new rule was refunding foreshadowed, earlier issue bonds on the retroactivity then is less in order to secure a more favorable Second, justified. where the overruled and, rate thereby, interest save state procedural deals with law decision rather funds. substantive, than retroactivity ordinarily Third, more readily will be accorded.

III. decisions, overruled, common law when may result in the cases, overruling decision be- In number of have discussed principles given opinion ing given effect, whether of a retroactive since the retroactively should be extended so as to usually substantive issue narrower has a case, past applicable be events. this impact and likely par- is fewer involve already we are aware that the SBA has Fourth, where, hand, ties. on the other issued bonds and that the funds public involved, substantial issues are only from those bonds not were used to arising from statutory or constitutional schools, also, complete new but a num- interpretations represent that a clear de- instances, ber of were to fund con- used parture prior from precedent, prospective already underway struction authorized application ordinarily will be favored. although yet actually started. Fifth, the more radically the new decision departs previous law, substantive apparent It voiding that these greater limiting the need for retroаc- bring would bonds considerable financial Finally, tivity. this also Court will look only to the State. would chaos Not it be precedent to the of other courts which damaging system to the school and the retroaetive/prospec- have determined the place, taking construction that but it place question an tive in the hardship would enormous financial same area the law on the State and citizens ultimately overruling 5, Syl. pt. their decisions.’ 5,129,427 PARK DEVELOPMENT 354,165,450 FINANCE HOSPITAL AUTHORITY 26,720,000 WEST VIRGINIA UNIVERSITY 331,040,000 SCHOOL BUILDING AUTHORITY 135,439,530 WV PARKWAY AUTHORITY 9,645,000 SOLID WASTE MANAGEMENT AUTHORITY 155,350,000

WATER DEVELOPMENT AUTHORITY 129,000,000 PUBLIC ENERGY AUTHORITY 118,694,767 REGIONAL JAIL AUTHORITY 838,564,117 HOUSING DEVELOPMENT AUTHORITY PURCHASES, OTHER —LEASE MORTGAGES, NOTES, INSTALLMENT 90,287,112 PURCHASES $2,394,971,403 TOTAL —OTHER DEBT $2,767,771,403 TOTAL

765 Co., seq., prior the date of opinion 163 Bradley Appalachian v. Power (1979).” 332, not invalid. 256 S.E.2d 879 W.Va. 2, Virgi Syl. pt. Devrnja v. West also

See 594, Medicine, 408 IV. 185 W.Va. nia Bd. of Clark, (1991); 185 v. Geibel S.E.2d We also understand from the rec 84, (1991); 510, 408 S.E.2d W.Va. issue, present ord that under the bond it is Rose, Oil, Inc. v. Syl. pt. Ashland contemplated that some of the earlier is (1986); Daily W.Va. 350 S.E.2d sued are to revenue bonds be refunded. Co., Legal v. Inc. Committee Gazette right to refund these earlier bonds is 550, 551-52, Ethics, 346 S.E.2d W.Va.Code, specifically authorized (1985); City 342-43 Bond Hunt 18-9D-9, generally: which states 581, 600, ington, 166 W.Va. S.E.2d refunding “The issuance of revenue (1981); Syl. pt. Mooney, Ables provisions bonds under the of this article shall be authorized resolution of the our has rela While bond law been building authority school and ‍​​​​​​‌​​‌​‌‌‌​‌​​​​​​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​​​​​‌​‌‍shall other- to constitutional tively certain as limita limitations, subject wise to the condi- tions, willing accept we are the assertion provisions of other revenue tions may have Syllabus Point 3 of Gill under this article.” bonds the revenue misconstrued to authorize been Allowing right for the to utilize refund- extent, the SBA. To this practice. ing bonds is a common It is de- may unsettled our be claimed Gill signed purposes, one for several of which bonds, law on at least to the constitutional issuing authority is to enable bond today’s opinion could be said to extent advantage of lower interest obtain Thus, unanticipated. the first have been refunding through rates the use of bonds. test not favor two elements of our would the cost of Refunding the bonds saves on retroactivity. bonds, is the liquidating the older which retroactivity and fourth consid The third purpose part of the 1993 Series avоwed impact on the of the new erations bear recognized courts have that bonds. Other today’s have no decision. We doubt purpose utilizing refund- this is a valid substantially limit the SBA’s opinion will See, Faubus, ing e.g., bonds. Beaumont v. ability to issue future bonds. 801, (1965); 239 Ark. 394 S.W.2d 478 State Also, that we have limited to the extent 180, Miami, 155 Fla. 19 So.2d City v. of Gill, departure may it said that a be (1944); of Ky. Highway 790 Comm’n State Syllabus Finally, Point 3. we (1935); created 414, Ky. 82 S.W.2d 443 King, 259 Supreme the United States 419, observe Cave, 193 La. ex rel. Maestri v. Court, of its cases where it found in several (1939); People City 631 ex rel. 190 So. from a to be unconstitutional 408, state bonds 378 Ill. 38 Rudgren, Rock Island v. of voter restric standpoint federal because Annot., (1941). generally N.E.2d 723 See tions, the decisions retro refused to make to Issue Power Unit Governmental earlier bonds that and to strike down active Power Implying Bonds as Refund infirmity. constitutional the same contained Them, (1948). 1 A.L.R.2d 134 Stone, See, 95 Hill v. U.S. e.g., County In Board Education of (1975); City 44 L.Ed.2d 172 S.Ct. 437, 445, Slack, 174 Hancock v. 204, 90 Kolodziejski, 399 U.S. Phoenix v. we discussed S.E.2d (1970); Cipri 26 L.Ed.2d 523 S.Ct. refunding and stated: concept of bonds Houma, 395 U.S. City ano majority of question no “There is (1969). 23 L.Ed.2d 647 S.Ct. refunding hold that bonds jurisdictions still (Cita- create a new indebtedness.” Thus, general principles do not upon our based omitted). decisions, present find no viola- tions We retroactivity judicial issuing part 4 of Article X by the tion of Section revenue bonds issued conclude that purpose W.Va.Code, 18-9D-1, bonds for this of the 1993 Series pursuant et SBA through no new debt is created should have ques- because known that this was a procedure, refunding the bonds. tionable and the matter of the validity question of these bonds and the pre- Consequently, we determine that they of whether obligation were issue of SBA bonds is not invalid vious bonds or revenue bonds28 could have and, principles retroactivity, be- proper been tested in a proceeding in a also have determined that cause we competent jurisdiction court of before refunding of bonds does not create new Building proceeded Commission debt, the SBA is authorized to issue refund- pоint admittedly where chaos may ing from the 1993 series bonds new bonds result because of the decision of this existing replace bonds at a lower inter- Court in this case.” est rate.27 We, therefore, forego- conclude for the ing judgment reasons that the of the Cir- V. cuit Court of County Kanawha should be closing, reemphasize we wish to what affirmed.29 prudent we stated earlier: No bond counsel Affirmed. reading specific arrangements financial outlined in could Gill have believed that it NEELY, J., concurs and reserves the would authorize the revenue at issue right concurring to file a opinion. in this case. We are amazed that no at- NEELY, Justice, concurring: tempt original was made before the issue opinion of the SBA bonds to obtain an as to I separately because, concur as Justice validity Attorney said, their from the General. John Marshall once “... we must Moreover, in forget view of the amount involved never that it is a constitution we are bonds, purpose prudence expounding.” and the Maryland, M’Culloch v. (4 Wheat.) 316, 407, U.S. would have 4 L.Ed. dictated that a court determina- twenty years I tion have been on the sought should have been as.to their court have seen numerous bond legality. cases. What help We cannot but echo the ad- instructed our understanding of these given monition of this Court more than spirit cases was the as well as the exact twenty years ago in Taylor, Hall v. text of our Constitution. W.Va. at 178 S.E.2d at 59: “If this decision may this state Our constitutional framers well under- financially, embarrassed it is not political stood that wildly leaders become fault of parties popular this Court. The by spending knew money wildly and un- $338,145,000 We refunding are advised that of the of of Consequently, opin the bonds. its subject new revenue bonds that are the of this applicability ion order has no to these two is suit, $154,000,000 approximately of the new Moreover, point although sues. we also out that bonds will be used to refund the earlier bonds at a reduced interest rate once the herein, gеneral authority not at issue there is applicable precludes taxpayers that citizens and from at estimated debt service revenue and the cost of tacking validity of a bond issue where the issuing the bonds are taken out. The net parties bonds were sold to third and the bond projects amount $160,000,000. Thus, left for new is estimated at partially funds authority were utilized. Such opinion will not invali- proposed upon See, based e.g., the doctrine of laches. percent date almost 50 of the new Dist., Sanitary Solomon v. North Shore 309, 48 Ill.2d previ- bonds which will be used to refund the (1971); Drenning 269 N.E.2d 457 v. Bd. of ously issued bonds. City Topeka, Comm’rs 148 Kan. of of purposely (1938); attempt Hinsdale, 28. We have declined to P.2d 720 Zeitler v. Town of distinguish general obligation between Mass.App. (1977); and reve- 359 N.E.2d 1315 New opinion. nue bonds in this These terms are not York Group, Public Interest Research Inc. v. Lev used in Sections 4 or 6 or Article X. The itt, (1978); 62 A.D.2d 404 N.Y.S.2d 55 names, critical issue is not their but whether the City Washington, Ciletti v. 392 Pa. impermissible bonds create an indebtedness (1958). Maynard A.2d 98 v. Board Educ. Cf. against the State. Wayne County, 178 W.Va. 357 S.E.2d 246 (1987). generally See 64 Am.Jur.2d Public Secu point 29. We would out that the Circuit Court of (1972). Obligations rities and § 478 County question Kanawha addressed neither the retroactivity question validity nor the Thus, leaders, political government But run popular by taxing. and business on com- devices, inevitably pletely principles: if left own will different to their business supporters jobs, government contracts and on efficiency; reward thrives thrives raising public patronage. always works without taxes whenev- on Business lowers course, This, possible. usually end, can gov- er costs as means to an while borrowing money future only by done means ernment the end. That’s generations repay. must why back-slapping, log-rolling, pork- barrelling, job-giving, vote-buying and deal- democracy electoral has two American making M.M. Neelys, Daleys (senior) Dick components numerosity and voter —voter Alfonse and D’Amatos of this world are so Although intensity. taxpayers are numer- wildly politics, successful while thе nar- ous, they provid- are not intense. It is the row, clean-cut, technocratic, honest, humor- ers government services in- who are Dukakises, Jerry Michael less Browns and tense, their entire de- because livelihoods stupendous Richard Lamms are such fail- pend largesse. government Provider ures.2 intensity directly political translates into contributions, organized campaign election politics’ None of exotic considerations day support badgering constant from play private come into business where providers’ lobbyists. influential person most voters When a dwell. sells swimming pool cleaner, example, may seem, he

Counter-intuitive as it worry things doesn’t like invariably means about inherited overwhelm the ends in political party preference or low practical politics.1 primary world Political election voter No customer perennially boy- battlefields are littered with the turn out. mangled X corpses pool of officials cotts Brand cleaner because Mrs. X who believed government illegal run like a like an could be looks unmade bed or hires business. (which long example English The how famous I like best of the means in bow had a politics longer range ends overwhelm the comes from the much effective than the French England many Years’ War between Hundred crossbow and fired at least five times as minute.) infantry, per English France. In the Hundred Years’ War the over- arrows un- guaranteed whelming counterpart, of ends means like its knew how to French with- raped, charge knights. France would be looted burned for stand a armored generations numerically English ordinary five inferior Unfortunately for the Frenchman of operating very long at the end of period, explicit recog- forces the Hundred Years’ War Right precarious logistical begin- line. superiority English infantry nition of the ning money destroyed said that French knights the smart over armored would daylights English, out of the but aristocracy’s should beat French raison d'etre and shiftеd the happened (and pow- that wasn’t what because the smart military political) center of therefore landed, money understand the French away equestrian didn’t aristocra- class er from the to a cy’s "provider” its own obsession with status. professional infantry officers. If cadre goal simply been French élite had field great battles of There were three the Hundred armies, winning Agin- both Poitiers and then (1356) Crécy Poitiers Years’ War— court would have been decisive French victo- Agincourt In all three of these battles However, goal goal: ries. that was not English stomped through French the use to maintain the social French élite was easily that the French could have tactics political chivalry. quo French status within 7,000 English Crécy, At archers overcome. larger French force that included routed a much simple, trying explain I am these matters in 1,000 knights. And near- more than armor-clad terms, common but both Kenneth Arrow sense later, Agincourt, ly seventy years a mere separate won Nobel and James Buchanan have 13,000 English longbows armed with soldiers "public theory.” choice Prizes for their work in pikes French and 50,000! defeated a force of about sub-specialty theory, choice as a eco- Public nomics, complex involves the construction consistently English won because explain behavior that mathematical models to fourteenth French armies of the and fifteenth county anyone who ever been elected com- has primarily heavily relied armored centuries intuitively. or sheriff understands missioner See, knights terrify opposition’s untrained Arrow, ranks, e.g., Choices Kenneth Social peasant infantry, break its and then hack (New Values, Wiley & Sons Individual John heavy it to swords and axes. But the death with Buchanan, York, 1951); Essays on the English James infantry was not like French infan- University infantry composed Economy, of Hawaii Press try: English Political was of well (Honolulu, 1989.) trained, professional skilled soldiers in the use Reaganomics Keynes

aliens, really Mr. X cause boycott does he because nor Now, however, actively having restated Kafka. or more or woman isn’t black breaking point, importantly, Most no stretched ourselves to against abortion. pool only big give gov- X clean- tax hikes will us more purchase of Brand customer’s programs. Roughly percent formula ernment six depends upon some cockamamie er (not gets pool gross product cleaner of our national our fed- one customer by which pays budget) exclusively pay- customer three eral is devoted free while another price. ing the on the national debt. the market interest times Government, however, approaching a cock- does have States and cities are now whereby funding problems some customers scheme same vex the amamie pay government, three times federal but with two get goods free while others notable big print price. The difference be- differences: States and cities cannot the market business, then, money government and or borrow for decades without re- tween every pur- payment impunity. customer must near In fiscal that in business 1992-93, year goods and services with his California had over a $14 chase his own money, government budget gap, budget gap in a custom- billion own while billion, may quite possibly er obtain a valuable state of New York exceeded $6 somebody good governments including or service and else most other state — Illinois, government, Pennsylvania, the sale of pay for it. Massachusetts and Maryland experienced a constitutional amendment serious financial bonds without — problems. or dedicated revenue source is ultimate scheme, those game; shell even Indeed, responsible failure to exert con- actually pay are more or less led who will borrowing may trols on the downfall of goods are free. Such a to believe City. New York Between 1989 and 1992 mechanism, therefore, exactly what payments debt serviсe rose faster than Const, X, prohibits. art. § major expense, growing by per- other 47.7 inflation, Notwithstanding adjusting all of the free-market cent after versus era, Reagan longest only percent preceding 9.2 rhetoric of the three (1982- history years. peacetime boom recorded Debt service accounted for three- 1990) largest peacetime city was fueled fourths of the net real increase in history, spending in recorded much of which 1989 and deficit between 1992. This re- build-up. growth In- cent city went into a massive defense occurred because the de- tax, spend payments by refinancing of the old Roosevelt “tax ferred interest stead elect,” Republi- during brought spend, elect and the stolid debt the 1980s.3 This debt improved upon momentarily: They cans of the 1980s the New service costs down con- percent Deal vote formula with “borrow sumed 11.0 buying fund borrow, spend spend, only percent elect elect.” versus 6.3 1990. But awhile, only quite coming today, just city This worked for but be- the bill is due as the Trustee, 3. One of the leading Although public cases cited N.Y.S.2d at 356-57. benefit Bank, support corporation taxing United National of the bonds that issued the bonds lacked State, authority primarily at issue in this case is and the bonds were secured Schulz tax, (trial 1992). percent subject Misc.2d 582 N.Y.S.2d 355 court one sales to annual state, acquiescing appropriation by This case shows courts in the exact the court found that government. good antithesis of Schulz, The bonds in the bonds did not violate the New York Consti- payments prohibition against political were "to fund local assistance tution’s state and education, elementary secondary approval. com- subdivision debt without voter munity college pro- money aid and tuition assistance involved in the bonds was of "astronomi- grams, payments proportions $4.7 of non-Federal share of local cal ultimately total of billion bonds —a pro- approximately $2.4 Medicaid costs and other local assistаnce to be issued: bil- assistance, issued; including already grams, sharing approximately $450 lion and improvement upon and health and the of environ- million to be issued” the court's decision. for initiatives, quality, housing borrowing for mental mental 582 N.Y.S.2d at 362. The bill to ' drug governmental programs, transpor- health and abuse mass fund basic service is also astro- bridge highway programs.” tation and 582 nomical.

769 tively government today The bestows benefits severe recession.4 wis- experiencing Virginia postpones taxpayer pain constitutional until tomor- of our West dom Const, framers, then, appears X, to be timeless. We prohibited by art. row is W.Va. mistakes ‍​​​​​​‌​​‌​‌‌‌​‌​​​​​​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​​​​​‌​‌‍of others profit from the 6, must approve unless the voters §§ discipline City failed to like New York who a constitutional amendment. project with themselves. explains the results in the That is what duly by and discussed the ma- cases cited

“Budget gaps” are not “deficits.” jority. cuts in Through a services combination mirrors, smoke and California and and blue Among we have al- the instances where theoretically spent no more than

New York to issued without voter lowed bonds be But, prevent in. in order to they took approval, explain the easiest cases to are becoming “budget gaps” from “deficits” the real “revenue cases where bond bond” important existing cut governments proceeds projects used to were be build budgets police protec- The for services. Virginia bridges, like toll the West Turn- maintenance, tion, protection, fire road college buildings.6 In pike or state these traditional, desirable, valuable local other cases, projects generate cash revenue government services have been reduced to parties. government The reve- from third governments the state from run- prevent simply straight-up nue scheme is bond po- ning actual deficits. Given the limited government in involving business deal its significantly to increase tential for states capacity: proprietary Lenders conclude future, in the near the deci- their revenues project the income from the will be provided by of which services are sion repayment of interest sufficient to cover increasingly a zero-sum states has become principle; wrong, lenders are when then, directly game. today, leads Debt lenders, taxpayers, take a bath. cuts in services tomorrow.5 Const, Then, quasi-revenue there are the bond X, 6, 4 and are art. §§ agrees pay government cases where the generation poli- designed prevent one technically building rent on a new that is helping their friends whilst ticians from Well, by the bondholders.7 the se- generation taxpayers to owned leaving the next building, curity for the is the Any given project that effec- bondholders foot the bill. Journal, 3, (1954) See, paid (Spring, (principal "out of City and interest Vol. Number 4. 1993) p. operation the revenues to be derived from the Guaranty bridge”); Trust Co. N.Y. West tap user fees and California has moved to Commission, Virginia Turnpike 144 W.Va. pay once property taxes to for services that were (1959) (“the S.E.2d tolls and the state fund. California funded received from time to time other revenues proportion property taxes used increased the pledged assigned "to the Commission” are schools, reducing public the re- to fund maining money thus bonds”); payment of such State ex secure to fund available to localities Virginia Univer- rel. Board Governors filling protection, pothole police, and other fire 88, 90, O'Brien, sity v. 142 W.Va. 94 S.E.2d provided localities. National Gover- services (1956) ("principal such of and interest on Association, Survey The Fiscal States: nor’s solely special payable shall be from the April p. 17. deposited non-revolving fund” in which are “all higher up in the edu- To make for the cuts university from students at the fees collect ... public budget, institu- tuition and fees at cation schools). specified in” significantly. Uni- other than students tions have been raised versity California State Uni- of California and versity systems nearly their tuitions doubled Building Commission v. State ex rel. State 7.See 1993, while the California between 1991 and 212, 217, Moore, 184 S.E.2d 155 W.Va. during colleges tripled community their tuition (1971) (rents pledged buildings for state Legislative period. Ana- California that same paid that are to be secure the bonds (Nov. 1992). lyst, Spending Plan payment of special into which “an annual fund system System, University of California $3,600,000 to be made the West [is] pride providing itself on low-cost that used to Beverage Commissioner from Alcohol Control increasingly college shed- quality education is accruing of alcoholic li- profits from the sale well, (as image perhaps, ding that low-cost a state quors pursuant to statutes which create quality). some of the thereof”). monopoly the sale Road Commission 6. See State ex rel. State 114, 116, O'Brien, cheaper plans find doubt than the best laid of successful government if the can private corporations. facilities, government alternative depart, leaving the technically entitled to bonds, hand, School other are for However, building holding bag. purpose structures whose bondholders are nonexistent. revenue returns While distinction between what the bondhold- jobs thousands of and millions of dollars in security building versus er’s is— profits emerge contractor will from school really important the most credit—is not construction, appears there to be little cor- important The distinction is distinction. quality relation between school building there is a mea- that in office cases and the buildings achievement level of stu- efficiently need that can be met surable leaving system. big dents correla- cheaply through quasi- the issuance of tions in education are between school suc- Furthermore, office build- revenue bonds. cess on the one hand student’s schools, non-govern- ings, unlike have a structure, family parents’ the student’s so- non-gov- mental use and can be rented to class9, parents’ cial and student’s edu- although, perhaps, tenants at a еrnment cational level on the other.10 Both our high rap- current rate of divorce11 and our loss. idly rising illegitimate rate of births have power can said for the The same ratcheting the effect of down the social generating plant Virginia at West Universi- larger class of the households in which a ty; plant designed to earn a fair larger percentage school-aged of our plant market return from the outset.8 The following prepared children live. chart purpose had a narrow scheme’s by pres- Centers Disease Control viability point clearly. economic was never more ents the Income, York, (New Viking 8. See State ex rel. West Resource Recov- cation and Press Gill, 1961). ery-Solid Disposal Authority Waste 109, 110, (1984) ("[t]he buy board would steam for universi- See, Moe, Terry 10. E. John Chubb and M. Poli ty, and revenues received from those steam tics, Colleges, Markets & American The Brook plant oper- pay Institution, sales would retire the bonds and D.C., 1990, ings Washington, pp. costs”). ation and maintenance 105-111. By sociologists Cayo 1,175,000 like Patricia Sexton grant- 11. In there were divorces University pointing of New York were out that ed in the United States. Divorce rates are calcu- 1,000 prominent the most correlation between a per popula- lated as number of divorces tion; child’s success in life and other factors is be- the national divorce rate was 4.7. tween success in life and the social class of the Table States, Statistical Abstract the United See, Sexton, parents. Cayo Patricia child's Edu- The child of a never-married is partners produces totally mother over of disrupt- roughly likely three times more ex- to be any ed life for a child which makes edu- pelled from than the school child of a two- entirely cational endeavor problematic. parent family child of a never- spend per pupil States that more in the married mother almost three more times public generally do schools likely family two-parent than the child of a performance better educational to show for repeat grade.12 sequence of di- it. The correlation between financial in- vorce boy followed a succession of puts educational girlfriends, outputs nearly non- marriage, fre- second quently another turn- any positive divorce another existent because contribution June, tics, Dept, Hyattsville, Maryland, Source: of Health U.S. and Human DHHS Services, Service, Dis- Public Health Centers for (PHS) Publication Number 91-1506. Control, ease Center for Statis- National Health performance school students vis a high

to educational that emanates vis same facilities, European students from and improved teachers, Pacific Rim from better or countries demonstrates that we doing are superior equipment is more than offset something very wrong schooling pro- in the meteorically rising illegitima- our rates of cess grades. between the first and twelfth parental neglect. Clay In cy, divorce and However, doing we wrong what are has County, population the black nothing to do money with the amount of we percent one the illegit- is one-tenth of while willing spend. Objective are to criteria like imacy White percent. illegiti- rate is 29.5 funding levels, budgets, construction and macy in the today alone United States ex- competency, teacher that demonstrate percent.13 ceeds 19 highly are committed to education and free- $4,000 spent more per Connecticut than ly willing pay superior quality. So pupil in but student test scores were far, however, money more helped has not Vermont, spent than those in lower which comparison us a bit in to societies that just $3,000 per pupil. Rhode Island spend far money less but have far fewer spent $4,000 per family-related pupil pathologies stemming also close and had rampant illegitimacy and divorce. average the lowest test scores of the three. spent York New state which more than unpleasant My decidedly conclusions are $5,000 per year, pupil just finished out comparison borne of America to barely signifi- ahead of Island seeming nemesis, Rhode and our Japan. economic On cantly are, standard tests mathematical behind Vermont.14 There skills the United Japan, States ranks well below course, Ko- high expenditures cases where cor- rea, Taiwan Europe.15 and most of Western high perfectly perfor- relate with academic Yet, superior performance of students great private as in mance our preparatory outside the entirely United States is unre- Groton, schools like St. Paul’s and Taft or superior systems, lated education upper-middle-class public schools like systems if least education are measured High Greenwich School and Bethesda- credentials, teacher teacher to student ra- Chevy Chase. More affluent communities tios, expenditures per student, absolute parents, however, and more affluent expenditures percentages education higher typically class, likely social less Gross National Product.16 The charts be- and be divorced better-educated. When compare Japanese low and American edu- parents emphasize education to their chil- European cation.17 Western countries that dren, the children do well. out-perform the spend slight- United States consistently poor performance ly per Japan more pupil than while Pacific grade school, American middle (Korea school and Rim Taiwan) countries and out- Keeves, 13. Table Statistical Abstract the United L. Comber J. Science Achievement States, every illegitimate For Countries, 1992. one (New York, black Wiley in Nineteen John birth, illegitimate there are 1.3 white births. In 1973). 593,900 illegitimate there were white States, 457,500 illegiti- births in the United Japan highest elementary 16. has the and sec- 1970, however, mate black births. In there ondary school science and mathematics test many illegitimatе were more black births than However, Japan scores the world. ranks 215,100 175,100 illegitimate white births: States, Canada, France, below the United erlands, Neth- illegitimate every black 1.23 births for white Belgium ratios, in student:teacher illegitimate twenty years, birth. a mere teachers, facilities, quality of and class size. exactly gap situation has turned around See, Howarth, M. Britain’s Educational Reform: grow. Consequently, contrary continues to Comparison A lapan, Nissan Insti- belief, illegitimacy popular predominantly is not series, tute/Routledge Japanese studies Rout- inner-city problem. Today a black underclass (New York, ledge 1991). white, America, illegitimacy ais heartland mid- problem. class dle objection Japan’s supe- 17. The can be raised that performance rior vis a vis United States has See, Sowell, 14. Thomas Inside American Edu- year. to do with our shorter school I don't cation, York, (New 1993) p. The Free Press correlation, there believe is much even but if a See, Mead, longer year Lapointe, explained Japan’s superiority school A.E. N.A. G.W. Phil- U.S., lips, explain Japan’s supe- A over riority it would World An International of Differences: Science, Europe, Assessment Mathematics and over Edu- Western where the school J., Testing (Princeton, 1989); year long cational Service N Japan. is about as as in tests, perform spend the United States substan- dard why which is I have chosen to Japan. Japanese students, than tially less compare Japanese, us to the however, out-perform everyone on stan-

JAPAN18

EDUCATION Students Schools Teachers per Students Teacher 24,852 445,000 Primary 9,607,000 16,774 Secondary 570,000 11,265,000 Third Level 1,145_145,000_2,581,000_18

GNP for Education: 5.0% Literacy Rate: 99%

UNITED STATES OF AMERICA19

EDUCATION Students Schools per Teachers Students Teacher 71,608 1,306,001 Primary 25,506,170 29,442 977,079 Secondary 14,786,138 Third Level 3,406_772,000_7,117,000_10

GNP for Education: 6.7%

Literacy Rate: 97% States, Compared to the Japa- primary teachers; United than American Japanese school buildings compare favorably do not spend percent money nese 25.4 less as a buildings; with American school many and education, proportion of their on GNP have Japan schools and classrooms in are sub- substantially higher student to teacher stantially more average overcrowded than ratio, only percent and send of their class size would indicate. In the United secondary on students to third level edu- States, contrast, student to teacher ra- opposed percent. Japa- cation as to our 48 tios are set law and enforced teacher teachers, primary nese average, school through unions the courts—a situation that years have several less formal education never in Japan.20 would exist Globe, Inc., Tempe, productivity: 18. Source: P.C. AZ anese In 1990 each full time U.S. $49,600 services, produced goods worker and 19. Ibid. $38,200 compared Japanese workers. And, Japanese productivity protected in such belief, Contrary popular Japan is not the general retailing only percent areas powerhouse efficiency it is often be- factory Japanese that of U.S. workers. workers Japanese pow- lieved to be. The have created a produced only percent overall as much about 80 automobiles, semi-conductors, erhouse in hourly Consequent- as Americans on an ly, basis. electronics, they exported consumer have Japanese supermen world, and su- not the products Japa- those around the but the perwomen press portrays, and often encourage competition nese do not in the rest of belief, contrary popular Japanese economy, Japanese do their omy so the rest of the econ- anywhere way languished horribly close to the most efficient and falls far be- has See, Indeed, doing counterparts. hind its business in the world—we do. American Ameri- higher productivity significantly Jap- Productivity, McKinsey can is than Global In- Service Sector top high end nearly of American education— schools aren’t as suсcessful as college graduate money pour namely, school edu- them into would seem Colleges graduate cation—is the best in world. That our to warrant. schools, contrast, educating problem lies in are overwhelmingly children rather implies parental supervision our successful because than adults alone crisis in longer cynosure no primary secondary of student education is success. funda- mentally a function of the students. The A years ago my few editor at the Free quality comparison our schools in to the Ujifusa, Press was Grant a Nisei Japanese roughly schools of other countries is Wyoming cowboy who wears boots levels, all soon same at but as as the Amer- and went to Harvard. Grant told me about system given ican motivated students friends, one of his middle-aged sister’s (i.e., class), adults who want to inbe Amer- woman who first came to the United States performance skyrockets to ica’s stellar years ago husband, fifteen with her heights, leaving every system other prominent young Japanese executive. Liv- world far below. ing immediately outside New York City, Japanese woman Anglo witnessed her grades The first six of school are not being women friends abandoned their only hard, supremely are also boring. but (who typically husbands ran youn- off with Learning read, write, spell calculate and ger women), Anglo being children sent off drill, drill, requires drill and more drill. boarding to third rate schools because dual try Good teachers to make this drill as parents career didn’t have time to care for possible, nobody much fun as but ever dis- home, them Anglo at and women abandon- guised tedious school’s nature for me. Un- ing both husbands and children to run off grade (when til the seventh finally school with lovers. Commenting on what she had began ideas) I to deal with hated school as seeing sister, been to Grant’s she asked Huckleberry much My as Finn did. father rhetorically: people, “What are these ani- school, school, my hated wife hated mals?” my Indeed, son now hates school. among

my friends isit hard to find someone who Thus, prime fact of education that did not hate part at least the “school” Japanese well understand but most school, even if he enjoyed going or she ardently deny: Americans Primary and sec- school for the social distraction. ondary depend education percent about 60 on parents, students and only about 40 very School doesn’t work well without percent on teachers and schools. homework, Of yet children uniformly hate course, highly when motivated students are geniuses homework and even like Albert teachers, combined with superior they as Einstein and adamantly Winston Churchill great upper-middle public class refused to do homework without coercion. or great schools in the private boarding commonly Children can’t do their home- schools, the results are spectacular. These work alone they because can’t understand spectacular results, however, are because it. is particularly This true reading when students, not because of the teach- skills have not developed point to the ers schools. Seldom accepting candi- grasp where children written di- can dates below the percentile 50th on the Parents, consequently, rections. must su- (the secondary SSAT apti- school scholastic pervise homework, which in most cases test), Groton, tude St. Paul’s pop- and Taft actually means doing the homework with ulate their schools with having students an (if for) the child. As educators are now ability rating well above percentile the 95th coming to appreciate, homework can compared as to all age children that in the most element in family divisive life. Over- United States. worked, par- indifferent self-absorbed cope ents can’t with the stress inherent in In the I private 1950s went to a school coaxing coercing children to do home- Europe had moved from to the United work, grade schools, so middle schools and States to escape the Nazis. The school was stitute, Co., McKinsey D.C., (Washington, & Inc. 1992). Wmthrop leading

located the old in Le- The on estate article effects of low nox, Massachusetts, expectations very on minority close to Bos- children writ- Steele, ten M. Symphony Tanglewood ton Claude a sociologist Orchestra’s at According Steele, Stanford.21 to Professor property. Winthrop Old Man had loved more birds, college than half of black large students exotic so he built a struc- had complete fail to their degree work for rea- ture in which house his bird collection. sons that have little to with do innate abili- ceiling of higher this structure was ty or conditioning. environmental ceiling than the of a traditional chicken problem, according Steele, to Professor coop, house, ceiling but lower than the of a that black students from the outset of their every and about ten feet there was a little days malevolent, school are undervalued in high round door about fifteen inches at ways subtle, racist as well uncon- ground level so the ingo birds could ways. Yet scious the class valedictorian of My out. school had converted this bird my high own school graduating class was a palace into what we called the “class student whose professor black father was a house”—the building where our classes physics University. at Howard He went were held. The class house primitive had a MIT, on to high thence became a rank- heating system, temperature and when the ing Company executive Ford Motor be- zero, went below we all needed to wear our family, cause that is what peers, his his jackets inside. Steam emanated from the expected and his of school him. they teachers’ mouths as lectured. parents Most power understand the Although public library the Lenox pressure, peer only minority par- but a well-stocked, extraordinarily my school’s li- ents relationship understand the between brary awas disaster and the dormitories parental peer pressure. nurture and passed inspection would never have if the general it is not true identify that children place state-operated had been a school for their peers par- with more than with their juvenile delinquents. And while the cam- parents ents. When actively are involved pus was beautiful than and food better in their children’s lives and behave reason- average, place dump. was otherwise a ably, identify children primarily with their Nonetheless, the teachers knew their sub- Thus, parents. adopt almost all children jects enthusiastic, surpassingly and were parents’ religion par- both their and their so the for school radiated excitement political party ents’ is affiliation. This not arts, music, literature, politics and sci- say to that there isn’t a constant battle for Enough ence. students studied hard that parents a child’s soul between concerned peer pressure posi- a generally worked peers; say is only and it to most top my tive direction. The half of small parents time win handily. concerned college graduating class had board scores imply None of this should be taken to well over was a and it rare student any that either I or judges of the other who scored under 1000. Yet the facilities court not for would vote a constitution- officially this school be con- would pass amendment to al million in school $338 today demned in any public school district. bonds; Nonetheless, do would. schools Good perform revenue-producing students two functions. not have the same direct They possible ability turnpike, make it college building the teachers to a fee- students, they inspire power be enthusiastic and class- paying generating plant, their single important county building mates. The most element even a or office or state are, person’s Although a is expectations; buildings education have. the office person when expected by perhaps, distinguish, a is his or her the hardest cases to teachers, parents, peers well, goes municipal and to he state and offices do what usually parents largely important she is does well. When is routine work that peers expect economy. performance, functioning bad the stu- the smooth schools, performs political dent badly. there is no debate Unlike cans,” Atlantic, Schooling April 21. "Race and the of Black Ameri- county ought city’s a clerk do in rapidly about what cause accelerating deeds, liens, financing filing agreements, debt. One that borrowing reason got- has etc., there is little debate what about provider ten out of there hand is that lob- courts, clerks, boards, zoning circuit circuit successfully argued bies have that such Efficiency ought and assessors do. in things as care health should be funded indeed, does, operation of these offices through capital budget. providers All county’s city’s per- a enhance economic always argument will make that health and, importantly, formance most cost care, education, drug facilities, treatment taxpayers bought facilities new children, away shelters for run etc. are financing may a through bond device not actually capital. “investments” human substantially higher be than the cost of true, may This be but then again may it inefficiency, worker maintenance and re- Certainly be true. it doesn't seem to be pairs use of with continued old facilities.22 particular true education at this moment. Const, minimum, then, At a art. Therefore, any time the credit the State X, requires that bonds of sort § even implicitly pledged, it as would be issued without constitutional amendment project whenever has no measurable rev- project be secured ONLY the bonds enue-generating potential, specter build, there be a overwhelming means ends becomes suffi- definitely special ascertainable ciently prominent that spirit of W.Va. source from which the bonds are Const, X, art. 4 is confounded and the § That, least, inspires retired. lenders to proposed project must peo- be taken to the inquire carefully project into whether the ple. specific measurably profit- built for able end whether revenue source is Therefore, it seems to me that in order adequate to retire the bonds. for a bond issue to survive W.Va. Const. However, attempted as I make to X, scrutiny, art there are three criteria § concurrence, clear in this I do not believe First, that must be met. project must that change a cosmetic of what amounts to reasonably be calculated either to earn or general obligation school bonds ato lease money, quality not enhance save of life or purchase arrangement using a revenue increase some speculative “investment” in permit

bond format would the scheme to capital. Second, human financing pass new, constitutional muster unless rely scheme lease/purchase must sound, fiscally dedicated tax were enacted. structure where the bonds are secured general, projects bond-funded that only by project the bonds are issued to approved have been without constitution- construct and not implicitly by even al amendment created measurable benefits And, third, credit of the State. there must directly that translated into earned or fund, special preferably some be from third saved tax dollars. This cannot be said for party payors, possibly but also a dedicated by any schools stretch of the imagination. portion budgets (such tax or existing Borrowing (like money consumption portion City) maintenance) New York build projects that that can be give will no tax dollar return idio- pledged is fiscal to the retirement of the bonds. cy. projects, For those the voters must Thus, analogous we have a situation to a approve either (cid:127) project polls at the (cid:127) = equation mathematical X where Y Z k. legislature must muster the resolve vеry large, If X is perhaps then Y and Z immediately new, to enact a tax. dedicated smaller, can be a Z large, little and if perhaps beginning At the I then X and Y be a opinion dis- can little plight cussed the City of New York be- smaller. partic-

22. This latter cost equation. my consideration becomes dards are into added See ularly prominent regard prisons concurring opinion part II of which Justices jails specter litigation joined when the of federal court Miller and Brotherton ex rel. Scott, requiring jails pris- and federal court orders Dodrill v. 352 S.E.2d 741 Eighth ons to meet federal Amendment stan- government of this each Although In all branch constitution is all about. it is not possible say “special advance what place. proper its It is the role of the has fund” schemes qualify will as outside the forward-looking, imagina governor be Const, X, prohibition, Va. art. W what § tive, optimistic. Similarly, enthusiastic and be can said is when that each scheme is legislature role of the it is the make sure merits, evaluated on its the history of other pork political pork, if there is will states’ problems fiscal and the prob- fiscal is also equitably distributed. It the role lems of the mother Commonwealth of Vir- legislature temper enthusiasm ginia at the time our Constitution was governor his zeal whenever threat drafted will be what most forcefully in- interests, in ens even narrow constituent understanding. struct our cluding (Thus the interest in taxes. lower cry priests and barons who war composed legislatures first the 12th leges

and 13th centuries: angli-cae “Nolumus tarel”23)

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are the collective That,

memory. regards, many is what a leges anglicae change!”

23. "Nolumus imitare" tradition- ally England translated "The laws of will never notes not improvements may shall be the and have tal fund as be needed to right, by no have requirements any to excises or taxes levied meet the of revenue bond purpose state for the paying by the note issue or issues authorized this article charges ***.’” Ohio any agreement service St.3d at and in ... trust made 8, 561 N.E.2d at 933. connection therewith[.]” W.Va.Code, 18-9D-8, relates is- to the Supreme The began Court of its Ohio requires the suance of bonds and them to by analysis stating: must look to “[W]e signed by governor by presi- the be and the plain language practical both the and effect ‍​​​​​​‌​​‌​‌‌‌​‌​​​​​​‌‌‌‌‌‌‌​‌‌​​‌​​‌​‌​​​​​‌​‌‍vice-president dent or of the SBA “under This court must examine [the statute]. great state, by the seal of the attested the only purports a transaction not for what it secretary of goes It on to re- state[.]” be, actually to but what it is.” Ohio quire: (Citation St.3d at 561 N.E.2d at 932. “Any pledge of omitted). revenues for such rev- proceeded The then court to ana- by enue bonds made building the school lyze the the applicable various sections of authority binding shall legislation. be valid and be- It found that the notes autho- parties tween the from the time the payments rized from the revenue “ made; is pledge interest, and the so pay principal, pre- fund ‘to revenues pledged mium, shall any, immediately subject be to payable if on notes issued ... the pledge lien such any without fur- paying financing and for costs and costs physical delivery ther thereof or paid further for ... services ... to the extent not ” act.” proceeds.’ from note 55 Ohio St.3d at (Citation omitted). 561 N.E.2d at 933. right SBA the to enter into trust agreements for bondholders is contained in Moreover, the court found there was W.Va.Code, 18-9D-12. In the following statutory “granted authority to the note- section, W.Va.Code, 18-9D-13, sinking require deposit holders to the Treasurer to fund is created an “in amount sufficient to sufficient tax revenues into the Note Ser- requirements meet the any issue of pay to vice Fund 55 Ohio notes[.]” provisions bonds sold under the of at 561 N.E.2d at St.3d 933. Based on article, may specified be in the resolu- provisions, Supreme these Court of authority tion of authorizing the issue Ohio concluded that its constitutional debt thereof and in agreement trust entered limit was violated.24 Finally, into connection therewith.” (cid:127) analyze When we Building W.Va.Code, School 18-9D-14, observe that while Act, Authority W.Va.Code, 18-9D-1, рrovides et pledge SBA cannot seq., pattern we find a similar to the Ohio taxing power State, credit or of the particular provisions fifty constitutional in set exceed seven hundred and thousand dol- by out the court rel. lars; ex Funds Ohio money, arising and the from the cre- Walker, Management Board v. 55 Ohio St.3d debts, applied ation of such shall be to the 561 N.E.2d at were: obtained, purpose repay for which it was or to provides: "Section of Article VIII contracted, pur- so debts and to no other debts, may supply "‘The state contract to pose whatever.’ revenues, casual deficits or failures meet provides: "Section 3 of Article VIII for; expenses provided not otherwise '“Except specified the debts above in sec- aggregate debts, but the amount of such direct article, tions one and two of this no debt contingent, by whether contracted virtue by, whatever shall hereafter be created or on general assembly, of one or more acts of the behalf of the state.”' time, periods or at different shall never ty-two, used as debt service for are not “deemed to be obligations the SBA’s state,”25 it revenue to be issued the au- obligations does not bonds of the to be thority pursuant provisions effect that the to the of sec- any language to the contain eight obligated fund tion this article Legislature not 18-9D-8] [§ to be projects finance needs selected bonds. authority which not heretofore it foregoing provisions, would From the unavailability been funded because to conclude that difficult funding, pay necessary obli- the SBA such costs and reserves of bond issues.” Certainly, the re- gations of State. sinking maintaining the fund quirement again positive Here we see commitment provide to service the bonds part Legislature pay in order on the redemption a financial their indicates debt the bonds. Legislature. The same commitment Finally, are to unless we abandon our respect pledge true with

Case Details

Case Name: Winkler v. State School Building Authority

Court Name: West Virginia Supreme Court

Date Published: Jul 22, 1993

Citation: 434 S.E.2d 420

Docket Number: 21829, 21830

Court Abbreviation: W. Va.