State Ex Rel. Town of South Charleston v. Partlow

Bovins, Judge : The Attorney General of the State of West Virginia disapproved a proposed bond issue of the Town of South Charleston in the sum of eighteen thousand, five hundred dollars, authorized by the voters of said town on November 5, 1946. The Town of South Charleston, hereinafter designated as the “town”, and a resident and taxpayer thereof, filed a petition in this Court seeking a review and reversal of the action of the Attorney General. This Court granted the review. The Board of Education of the County of Kanawha, hereinafter referred to as the “board” was given leave to intervene in this proceeding. Eighteen thousand dollars of the proceeds of said proposed bond issue is to be used for the purchase of an improved parcel of land, now owned by the United States of America. The tract of land is described as all of Lots Nos. 9 and 10, the westerly five feet of Lot No. 8, and the east *141 erly seven feet of Lot No. 11, Block E-3, of the town. This land was formerly owned by the board. On June 10, 1941, the board conveyed Lots Nos. 9 and 10, and the westerly five feet of Lot No. 8 aforesaid to the town, and released to the town its interest in the easterly seven feet of said Lot No. 11. The consideration for such conveyance and release was nominal. The town agreed with the board that it would endeavor to secure the erection of a recreation building and other improvements on said land, and that, in the event the land was not acquired by the United States of America, the town would execute and deliver a lease in “language identical with or substantially the same as the lease * * * [thereto] attached”. The agreement further provided that if the United States of America should acquire title to said land and reconvey the same to the town, the town would execute a similar lease to the board for a term of ninety-nine years, with the privilege of renewals for two like periods. It is unnecessary further to state the terms, stipulations and provisions of said agreement. A proceeding in eminent domain was instituted by the United States of America, in the United States District Court for the Southern District of West Virginia, which resulted in the United States of America acquiring the title to said land for the sum of one dollar. The arrangement between the town and the board was recited in an order of the court entered in the eminent domain proceeding. But it was provided in such order that the agreement or arrangement should have no effect on the title acquired by the United States of America. Thereafter the Federal Government erected a building on the land. The town leased the land and improvements from the Government. Whether the town still occupies said land and improvements, as a tenant, is not clearly shown. Subsequent to the conveyance to the town and the agreement between the town and the board, a new ad *142 ministration was elected for the Town of South Charleston, and, according to the record, the members of the new administration were not apprised of the agreement between the town and the board. On September 30, 1946, an ordinance was adopted by the council of the town submitting the bond issue to the voters thereof. The money derived from the sale of the bonds was to be used in purchasing the land and improvements from the Federal Government. During the pendency of such election, officials of the town were advised of the conveyance from the board to the town, and the agreement to lease the property in the event the town reacquired ownership thereof. On October 23, 1946, a statement was made and published by the town officials to the effect that they had no intention to purchase the land and improvements, if the transaction between the board and town was binding and valid, but such statement was not submitted to the voters in the ordinance calling the election. The bond issue was authorized by the voters of said town. No defect is set forth in the record relative to the procedure in calling the bond election, in submitting the question to the legal voters of the town, and in ascertaining the result of said election. The facts hereinbefore stated were before this Court in the case of Town of South Charleston v. Board of Education, 132 W. Va. 77, 50 S. E. 2d 880, and reference is made to the opinion in that case for a statement of additional facts considered in this proceeding. The Court held in the case of Town of South Charleston v. Board of Education, 132 W. Va. 77, 50 S. E. 2d 880, that the subject matter of the controversy was not before the Court; that there was no jurisdiction to grant relief under the Declaratory Judgments Act; and, further, that the parties to that suit were relying upon contingent and future events which could not be considered. Accordingly, said declaratory judgment suit was dismissed. After the dismissal of said declaratory judgment suit, the validity of the bond issue was submitted to the Attorney General of this State, in accordance with the provi *143 sions of Code, 13-1-25. For some reason not clearly shown, the papers showing the transactions between the board and the town relative to the land and improvements were included among the papers submitted to the Attorney General. Upon consideration of the agreement and deed executed by the board and town, the Attorney General was of opinion that the agreement, not having been declared invalid by a court of competent jurisdiction, should be treated as valid; that the money raised by the bond issue could not be legally expended for the purchase of the land and improvements hereinabove mentioned; and that the proceeds of the proposed bond issue must be expended for municipal purposes and not for recreational or educational purposes controlled by the board. Counsel for the town and petitioner contend (1) that the deed and agreement executed by the town and board are invalid; and (2) that all rights, interest, and estate, if any, the board may have had in the land and improvements were extinguished by the judgment in the eminent domain proceeding above mentioned. The board contends: (1) that the deed executed by it to the town and the agreement to lease the land and improvements are valid and binding by reason of the statutory rights conferred on the board and town by Chapter 105, Acts of the Legislature, 1945; (2) that the town has no equity in the land and improvements and seeks to repudiate the agreement of October 10,1941; and (3) that the bond issue is invalid on account of the statement made by the officials of the town after the election had been called. Notwithstanding the written statement of the Attorney General, the contentions of the town, and the contentions of the board, we are of opinion that only two questions arise in this proceeding: (1) May the validity of the deed and agreement between the board and the town and their respective rights to the lands and improvements,'if any, be determined in this proceeding; and (2) is the bond issue, when separated from the expenditure of the money raised thereby, valid? *144 A review of a proposed bond issue by the Attorney General of this State, and a further review of the action of that official by this Court, are entirely statutory. It would serve no good purpose to cite cases from other jurisdictions relative to similar questions. The provisions of Code, 13-1-25, direct “the governing body of any political division issuing bonds under this article”, after the ascertainment of the result of a bond election, to submit to the Attorney General certified copies “of all orders, ordinances, proclamations, affidavits, resolutions and records of all of the proceedings connected with or. pertaining to such bond issue, and any other matters relative thereto which the attorney general may require.” Assuming that a proposed bond issue is for a purpose authorized by law, the power of the Attorney General in approving or disapproving the validity thereof, pursuant to Code, 13-1-25, is restricted to passing upon the procedural steps taken by the political subdivision: (1) in submitting the question of the issuance of the bonds to the electorate; (2) in ascertaining the result of an election held for the purpose of authorizing or rejecting the proposed bond issue; and (3) in the passage and adoption of such resolutions, ordinances or orders, including those providing for the form of the bonds, as may be necessary to effectuate the will of the electorate expressed at such election. We do not think that the question of the expenditure of the money raised by a bond issue should be submitted to the Attorney General or passed on by him. This being true, we can see no purpose in the Attorney General reviewing the actions of the town and the board relative to conveying the land and making the agreement above referred to. Those questions properly come before a duly constituted court, having judicial power conferred by the constitutional provision reading as follows: “The judicial power of the State shall be vested in the supreme court of appeals, in circuit courts and the judges thereof, in such inferior tribunals as are herein authorized and in justices *145 of the peace.” Article VIII, Section 1, Constitution of West Virginia. If the deed executed by the board to the town and the agreement to lease executed by the town and the board are invalid, a court possessing judicial power may declare such invalidity. We find no constitutional or statutory provision authorizing the Attorney General to pass on such questions. We therefore think that the review of the Attorney General in this instance should be confined to the procedural steps above mentioned. The jurisdiction of this Court to review the action of the Attorney General in approving or disapproving a proposed bond issue rests solely on Code, 13-1-26, and should “be proceeded with as in cases of original jurisdiction”. Eliminating any questions with respect to the division of power provided by Article V of the Constitution of this State, this Court has held: “The Legislature may, within constitutional limitations, enlarge by statute the jurisdiction of this Court so as to authorize us to control the action of executive or administrative officials, not including the governor, in all purely ministerial or administrative matters, not involving discretion, but depending on the application to the facts of positive law and correct legal principles.” State v. England, 86 W. Va. 508, 103 S. E. 400. In State v. England, supra, the Court did not characterize the powers of the Attorney General under Code, 13-1-25, as being judicial or ministerial, but used the following language with reference thereto: “But do his [Attorney General’s] duties involve purely judicial action or discretion? Manifestly, the legislature did not so determine. The purpose was to make his duty supervisory and ministerial, although calling for his opinion and judgment on the law. His duties in this respect are not different from almost any other ministerial or executive officer.” See: “Judicial Review of Administrative action”, 44 W. Va. Law Quarterly 270, 350, 357. The questions sought to be reviewing in this proceeding are not within the scope of the review authorized by Code, *146 13-1-26, and generally may be determined only in a plenary suit, properly brought, considered and determined in a constitutional nisi prius court. We think the review by this Court of the Attorney General’s action, contemplated by Code, 13-1-26, is limited to his actions with respect to the powers he may properly exercise pursuant to Code, 13-1-25, as hereinbefore stated, and to no others. The validity of the deed from the board to the town and the agreement to lease executed by them was not properly before the Attorney General. The rule adopted by this Court, restricting the review under Code, 13-1-26, is stated in the third point of the syllabus of Baxa v. Partlow, 132 W. Va. 859, 54 S. E. 2d 825 (decided June 1, 1949, and not yet reported), as follows: “Ordinarily the sole question to be considered upon the review provided for in Code, 13-1-26, is the approval or disapproval, by the attorney general of a proposed bond issue; and generally this Court will not undertake therein the supervision of the expenditure of funds to be procured as the result of such bond issue.” In exercising the statutory authority to review the action of the Attorney General, this Court should not extend the scope of its review to include questions de hors the bond issue which should be determined in the first instance by a trial court having judicial power under our organic law. The title to the land in question is not before the Court in this proceeding. It was held in the case of Town of South Charleston v. Board of Education, supra, that the subject matter of the litigation was not before the Court, and that there was no jurisdiction to grant relief under the Declaratory Judgments Act. A fortiori, the title to said land is not before the Court in this proceeding, and we should not pass upon any question connected with it. This Court should not co-mingle the claimed equities and property rights of the town and the board with questions arising in a restricted statutory review. *147 In view of the foregoing we express no opinion relative to the rights and equities asserted by the town and the board in this proceeding, and remit them to their remedies, if they are so advised, to be enforced in a proper suit, in which such questions are properly presented. The statement made by the town council on October 28, 1946, with reference to the intention of the officials of the town not to purchase the land for use by the board of education, has no bearing on the validity of the bond issue. That was something outside the submission set forth in the ordinance published, as required by statute. The voters of the town did not vote on the informal statement made by the town council on October 23, 1946; but did vote on the question submitted to them by the ordinance as first published. Said statement was only published as a matter of information. We are not concerned here with the reasons motivating any voter in voting for or against the bond issue. The record discloses no actual defect in the submission of the bond issue to the voters of the Town of South Charleston, and the ascertainment of the result of the election held pursuant to such submission. Nor is any irregularity disclosed in the proposed issuance of the bonds. We are, therefore, of the opinion that the proposed bond issue is valid and binding on the Town of South Charleston. For the foregoing reasons we reverse the action of the Attorney General in disapproving said proposed bond issue, and direct that official to approve the same in accordance with the principles expressed in this opinion. Reversed.