City of Charleston v. Southeastern Construction Co.

Riley, Judge: The City of Charleston, a municipal corporation, brought this suit in equity in the Circuit Court of Ka-nawha County, against Southeastern Construction Company, a corporation; The State Office Building Commission of West Virginia (sometimes hereinafter referred to as the “building commission”; Honorable Okey L. Pat-teson, Governor; Honorable William C. Marland, Attorney General; Honorable D. L. Gainer, Director of the Budget; individually and as members of The State Office Building Commission of West Virginia; and Honorable Okey L. Patteson and Honorable D. L. Gainer, Secretary of The State Office Building Commission of West Virginia, for an injunction restraining the defendants from constructing a state office building upon premises purchased by the State of West Virginia from revenues appropriated by the Legislature for The State Office Building Commission, which premises are situate at the southeast corner of California Avenue and Washington Street in the City of Charleston. The basis of the injunctive relief is that the contemplated construction is in violation of the provisions of the Official Building Code of The City of Charleston of 1945, and the Building Zone Ordinance of the City, adopted on May 2, 1939, by the Municipal Planning Commission, and approved by ordinance of July 10, 1939. The circuit court upon joint motion of the parties, certified to this Court its rulings in overruling the demurrer to plaintiff’s bill of complaint. — 668 — An order having been heretofore entered in this case, this opinion is written for the purpose of stating the conclusions which prompted the Court to enter the order. The bill of complaint alleges that powers and duties of the plaintiff, The City of Charleston, were conferred and imposed by special charter, Acts of the Legislature of West Virginia, 1915, Municipal Charters, Chapter 1; Acts of the Legislature, 1919, Municipal Charters, Chapter 9; Acts of the Legislature, 1921, Municipal Charters, Chapter 4; Acts of the Legislature, 1923, Chapter 82; Acts of the Legislature, 1925, Municipal Charters, Chapter 12; Acts of the Legislature, 1927, Municipal Charters, Chapter 8; Acts of the Legislature, 1929, Municipal Charters, Chapter' 4; Acts of the Legislature, 1933, Regular Session, Chapter 117; and by general municipal law of the State, Code, West Virginia, 8-5 and 8A-4-19 and 24; and then proceeds' to set out verbatim the following excerpts from the foregoing statutory enactments, dealing with powers and; duties: “* * * to provide for and regulate the safe construction, inspection and repairs of all public and private buildings, * * * to regulate the height, construction and inspection of all new buildings hereafter erected, and the alteration and repair of any buildings already erected or hereafter erected in said city, and to' require permits to be obtained for such buildings and structures, and plans and specifications thereof to be first submitted to the building inspector;” (Acts of the Legislature, 1929, Municipal Charters, Chapter 4, Section 7). “For the purpose of promoting health, safety,, morals, or the general welfare of the city and. community, * * * to regulate and restrict the height, number of stories, and size of buildings and other structures, the percentage of lot that may be occupied, the size of yards, courts and other open spaces, the density of population, and the location and use of buildings, structures and land for trade, industry, residents or other purposes. * * * [With a specific exemption as to buildings or structures used by a public service — 669 — corporation](Section 102, Acts of the Legislature, 1929, Municipal Charters, Chapter 4). “* * * the council may divide the city into districts of such number, shape and area as may be deemed best suited to carry out the purpose of this and the four succeeding sections, and within such districts it [council] may regulate and restrict the erection, construction, alteration, repair or. use of buildings, structures or land. All such regulations shall be uniform for each class or kind of buildings throughout each district, but the regulations in one district may differ from those in other districts.” (Section 102-a, Acts of the Legislature, 1927, Municipal Charters, chapter 8.) “Such regulations shall be made in accordance with a comprehensive plan, and designed to lessen congestion in the streets; to secure safety from fire, panic and other dangers; to promote health and the general welfare; to provide adequate light and air; to prevent the overcrowding of land; to avoid undue concentration of population; or to facilitate the adequate provision of' transportation, water, sewerage, schools, parks,, and other public requirements. Such regulations shall be made with reasonable consideration, among other things, to the character of the district and its peculiar suitability for particular uses, and with a view to conserving the value of buildings and encouraging the most appropriate use of land throughout the city.” (Section 102-b, Acts of the Legislature, 1927, Municipal Charters, Chapter 8). The bill of complaint alleges that Code, 8-5, and specifically Sections 1, 2, and 3 thereof, grants to municipalities the power to zone for the health, safety, morals and general welfare of the respective communities; and that Acts of the Legislature, 1937, by Chapter 56 (8A-4-19, 24), empowers cities to “Regulate the erection, construction, repair and alteration of structures of every kind within the city,”; and further provides that “A city may provide for city planning and zoning in accordance with * * * [Code, 8-5].” — 670 — It is further alleged in the bill of complaint that, pursuant to the foregoing statutory authority, the City of Charleston adopted the building zone ordinance of July 10, 1939, and by ordinance passed on March 9, 1936, filed as Exhibits Nos. 1 and 2, respectively. From Exhibit No. 1, it appears that the parcel of land in question lies in a zoned district, designated as “Residence ‘C’ District”, the maximum height of buildings within which district is not to exceed four stories or fifty feet, except in case of public or semi-public buildings the maximum height shall not exceed seventy-five feet or more than six stories. Sections 36, 37 and 38 provide the maximum width for front, side and rear yards. The building code (Exhibit No. 2) provides that “no person shall erect or construct any building or structure whatever, * * * without first obtaining a building permit from the [City] Building Inspector”, after filing written application therefor. The building commission by its secretary submitted the plans and specifications for the proposed building to the building inspector of the city of Charleston, and made application for a building permit, pursuant to the building code, which application was refused. Nevertheless, the State Office Building Commission, by letter dated May 3, 1950, notified the city of its intention to award the contract to the successful bidder, Southeastern Construction Company; and on May 19,1950, the building inspector served a “Stop Order” in respect to the work preparatory to the construction of the building. This suit then followed. From the bill of complaint it appears that the lot in question fronts one hundred twenty feet on California Avenue, with a depth of one hundred forty-four feet on Washington Street and is bounded on the east by a fourteen-foot alley. The proposed building will be set back twenty feet from the property line of California Avenue, a one-foot setback on the alley, and no setback from the property line of Washington Street. So if a building permit is required of the building commission and the zoning ordinance applies, the proposed — 671 — building would be in violation of both the building code and the zoning ordinance. In the appraisement of the foregoing question, it becomes necessary to consider the provisions of Chapter 43, Acts of the Legislature, 1939, creating and defining the powers and duties of The State Office Building Commission, whereby it is empowered: “To sue and be sued, plead and be impleaded” (Section 3, Subsection 1), and “To construct a building or buildings on real property, which it may acquire, or which may be owned by the State of West Virginia, in the City of Charleston, as convenient as may be to the capitol building, together with incidental approaches, structures, and facilities, subject to such consent and approval of the City of Charleston in any case as may be necessary” (Section 3, Subsection 9). In Section 7 of the last-mentioned Act, .as amended by Chapter 18, Acts of the Legislature, 1945, the commission is empowered to raise the cost of such project by the issuance and sale of revenue bonds; and in Section 2, sixth paragraph, and Section 3, Subsection 11, Chapter 43, Acts of the Legislature, 1939, it is authorized to rent the buildings, and parts thereof, to public and private tenants for compensation. The proposed building, as contemplated by the plans and specifications, is to be constructed on property located on the southeast corner of California Avenue and Washington Street, in the City of Charleston, which is owned by the State of West Virginia; and, as disclosed by the deed therefor, recorded in the office of the Clerk of the County Court of Kanawha County, the property was purchased for the sum of forty thousand dollars, the appropriation therefor being included in the general appropriation Act contained in Chapter 9, Acts of the Legislature, 1949. Item 3, Subsection (g), Section 5, Title 2, of Chapter 9, reads: “State Office Building Commission, for purchase of land upon which to construct a building to house state agencies supported in whole or in part from federal funds or state agencies supported by special funds. — 672 — The amount of this appropriation to be available upon the passage of this act . . . $40,000.00.” The circuit court in overruling the demurrer to plaintiff’s bill of complaint filed a written memorandum, in which the court, among other things, expressed the opinion that The State Office Building Commission is a quasi-private corporation. This certificate involves specific grounds of demurrer. Grounds Nos. 8 and 9 need not be considered in the opinion in this case, as they are catch-all grounds. The specific grounds which we must consider, namely, 1 to 7» inclusive, read: “The construction of state office buildings' is not subject to the requirements and provisions of Chapter 33 of the Code of Charleston, 1942, known as the building and zoning ordinances of said city, and which regulate the location, type, plan and mode of construction of buildings and other structures within the City of Charleston. “2. The building code and zoning ordinances of the City of Charleston do not specifically include the State of West Virginia, and therefore the said ordinances are inapplicable to the said State of West Virginia. “3. The building code and zoning ordinances, of the City of Charleston could not apply to the-construction of state office buildings or otherwise restrict or limit the use of such- public property for public purposes. “4. The attempt of the City of Charleston to compel the State of West Virginia to conform to the -city zoning ordinances is against the public policy of this State. “5. The Legislature cannot delegate to the City of Charleston the power to require the state to-conform to city building codes and zoning ordinances with respect to state office buildings, as. the same would be an unlawful and unwarranted attempt by the Legislature to place a nondele-gatable power in the City of Charleston with- respect to a governmental function properly b.e673 longing to the citizehs of the state and not purely local in nature, in violation of Section 2, Article II, and Article V, and Section 2, Article VI of the Constitution of West Virginia. . “6. The Legislature cannot delegate or barter to the City of Charleston a fundamental, basic and sovereign power of the people of the state' necessary to government. “7. Even if the Legislature could delegate to a city the power to dictate to the state in matters of state concern, subsection 9, Section 3, Article 6, Chapter 5 of the Code of West Virginia would be unconstitutional if it were held to be such a delegation of power, for the reason that the Legislature did not set up any standards or definite limitations under which the City of Charleston could act in requiring a building permit for a state office building, in violation of Article V of the Constitution of West Virginia.” These several grounds of demurrer have been correctly-resolved by counsel for plaintiff into three propositions,, namely: “(1) Do the Charleston ordinances apply to a building project of The State Office Building Commission; (2) can the Legislature delegate building and zoning, regulatory police powers over property and structures of The State Office Building Commission to The City of Charleston; and (3) if the Legislature may delegate such powers to the City of Charleston, is such delegation invalid because of the absence of prescribed standards?” Two major propositions, as the opinion of the circuit court states, are asserted by the defendants in the specific grounds of demurrer: (1) The State has not granted to The City of Charleston the right to regulate-in any way the construction of State buildings by the-general zoning statute, Code, 8-5, and the provision in Subsection 9, Section 3, Chapter 43, Acts of the Legislature, 1939, creating The State Office Building Commission,, to the effect that the construction of buildings by the commission shall, be “subject to such consent and approval of the City of Charleston in any case as may be necessary;” and (2) if the Legislature has attempted to — 674 — permit such regulation, the attempt constitutes an unconstitutional delegation of power. Initially, the question arising on this record is whether, as the circuit court held, The State Office Building Commission is a quasi-private corporation, engaged in a proprietary capacity, when it undertakes to build the proposed building, which is to be financed from revenue bonds only, which, under Section 2 of Chapter 43, Acts of the Legislature, 1939, may be rented to private corporations or persons, or whether The State Office Building Commission is a State agency engaged in a governmental capacity in the construction and in the future operation and management of the proposed building. It is true that under the provisions of Chapter 43, The State Office Building Commission is given some of the powers of a private corporation, but it likewise has the attributes of a public corporation. The fact that the building commission has no power to create a State debt and that the holders of the revenue bonds proposed to be issued may enforce payment of their bonds against the property and that such revenue bonds shall be exempt from taxation by the State of West Virginia, or any county or municipality therein, does not, in our opinion, take the building commission out of the category of a State agency. Chapman v. The Huntington, West Virginia, Housing Authority, 121 W. Va. 319, 336, 3 S. E. 2d 502; West Central Producers’ Co-Operative Association v. Commissioner of Agriculture, 124 W. Va. 81, 20 S. E. 2d 797; Meisel v. Tri-State Airport Authority, W. Va., 64 S. E. 2d. 32, pt. 1 syl., decided on March 1, 1951, at the January, 1951, term of this Court; and while we do not have the question immediately before us whether under the provisions of said Chapter 43 the building commission may rent to a private person or persons, the fact that in that sense the commission may be acting as a private property owner, the over-all purpose of the construction of buildings under said Chapter 43 is the housing of public agencies, and the fact that rental moneys may be obtained from private sources does not take the public or governmental character from the building commission. In Schippa v. West — 675 — Virginia Liquor Control Commission, 132 W. Va. 51, 53 S. E. 2d 609, this Court held that the commission, though organized for the purpose of engaging in the business of selling intoxicating liquor, is an “agency of the State”, engaged in the performance of governmental functions and duties, and, as such, under Section 35, Article VI of the Constitution, is immune from suit. See also State of West Virginia ex rel. Board of Governors of West Virginia University v. Sims, Auditor, 133 W. Va. 239, pt. 2 syl., 59 S. E. 2d 705; Sims v. Fisher, 125 W. Va. 512, 538, 25 S. E. 2d 216; Gordon v. Board of Control, 85 W. Va. 739, 741, 102 S. E. 688. In the instant case, however, the status of The State Office Building Commission is of no importance, because the building is to be erected on land owned by the State, and purchased from public revenues appropriated in the general appropriation Act, contained in Chapter 9, Acts of the Legislature, 1949, and whatever The State Office Building Commission may be empowered to do with reference to other buildings in the matter of renting to private corporations or persons, that question likewise is of no moment in the instant suit, for the very Act providing for the appropriation of forty thousand dollars, the purchase price of the land upon which the building is to be erected, provides solely for the construction of a building “to house state agencies supported in whole or in part from federal funds, or state agencies supported by special funds.” We therefore hold that The State Office Building Commission is an agency of the State, which, in the construction of the proposed building and in its future management and control, is and will be acting in a governmental, as distinguished from a proprietary capacity. That being so, under the holding of this Court in Schippa v. Liquor Control Commission, supra, and kindred cases, it is immune from suit under Section 35, Article VI of the Constitution of this State. We further hold that as the building is to be erected on property purchased by the State of West Virginia, ap — 676 — propriated from the revenue funds of the State, the purpose of the building being to provide only for housing of .State agencies, either supported in whole or in part from Federal funds, or State agencies supported by special -funds, the building is a public building. What then is the effect of the zoning ordinance read in connection with the provision in said Chapter 43, creating ‘The State Office Building Commission, to the effect that the construction of the building by the commission shall be “subject to such consent and approval of the City of Charleston in any case as may be necessary”? We are «of opinion that for the moment, disregarding the last-quoted provision in said Chapter 43, that the zoning ordinance, whether it was enacted before or after the effective date of said Chapter 43, does not govern The State Of.fice Building Commission in its construction and future «operation and control of the building. In this position we are governed by the clear weight of authority in this country. In Kentucky Institution for the Blind v. The City of Louisville, 123 Ky. 767, 97 S. W. 402, the Kentucky Court held that “A city ordinance requiring ‘all buildings occupied by any person or persons or in which any person or persons shall be employed or assembled, of three «or more stories in height (except private residences) shall be provided with one or more improved fire escapes when ordered by the inspector or his deputy’ * * * does not apply to a blind asylum created and belonging to the State located in such city, which is under control of a board of visitors appointed by the Governor with the approval of the Senate.” In City of Milwaukee v. McGregor, 140 Wis. 35, 121 N. W. 642, the Court held that in the case <of the construction of a building by the state board for .state purposes under state authority, the matter is wholly 'the concern of the state and not subject to general state «or municipal regulation. The general rule in this jurisdiction is that “When a municipal ordinance is opposed to The policy of the state in relation to the subject matter thereof and in conflict with the statute of the State in relation thereto, the ordinance is void to the extent of its conflict with the statute and should not be-enforced.” — 677 — State ex rel. Wells v. City of Charleston, 92 W. Va. 611, pt. 1 syl., 115 S. E. 576. In the opinion at page 617 this Court observed that “The law is that when an ordinance is inconsistent with the statutes or general laws of the state, it will be null and void, unless it emanates by vir-ture of the express grant of the State. McQuillin, Municipal Ordinances, Section 16; Thomas v. Richmond, 12 Wall. 349; Thompson v. Carroll, 22 How. 422; Block v. Crockett, supra.” (61 W. Va. 421). But did the consent clause contained in said Chapter 43 constitute a valid express grant of the State? We think .not. As heretofore stated the Charleston zoning ordinance was passed on July 10, 1939. Chapter 43 of the Acts of the Legislature, 1939, creating The State Office Building Commission, was enacted on March 9, 1939, and became effective ninety days from passage, so at the time Chapter 43 was enacted, the zoning ordinance in question had not been passed. If we should hold that the zoning -ordinance should apply, we would thereby give to the Council of the City of Charleston and to future councils thereof unbridled power to enact ordinances as to building zones, such as they might deem proper. Such delegation would make the Legislature subservient to every .future action of the Council of the City of Charleston, and thus reside in the authorities of that city future indefinite powers without any standards whatsoever to guide or control them, in which event the Council of the City of Charleston could act arbitrarily and capriciously. Moreover, the Legislature is without power to bind future Legislatures, and it cannot grant or delegate the right to exercise in perpetuity the police power of the State. Such ■delegation would be violative of Section 1, Article VI of our Constitution, which reads: “The legislative power shall be vested in .a Senate and House of Delegates. * * The foregoing is an accepted principle of law. See 1 Cooley’s Constitutional Limitations (8th ed.) 436, wherein it is stated: “Equally incumbent upon the State legislatures and these municipal bodies is the restriction that they shall adopt no irrepealable legislation. No legisla — 678 — tive body can so part with its powers by any proceeding as not to be able to continue the exercise of them. It can and should exercise them again and again, as often as the public interests require. Such a body has no power, even by contract, to control and embarrass its legislative powers and duties. * * And, finally, there is another and controlling reason why we think the demurrer to the bill of complaint should have been sustained, rather than overruled as held by the circuit court. Assuming that the power to control the erection of the proposed office building, and the requirement of a building permit are validly vested in the coun-cilmanic authorities of The City of Charleston, they have not, in our opinion, either by the enactment of the building code or the zoning ordinance effectively exercised those powers. Section 201, Chapter 2, Part 1, of the Official Building Code of The City of Charleston, filed as Exhibit No. 2 with plaintiff’s bill of complaint, provides expressly that “No person shall erect or construct any building or structure whatever * * * or cause the same to be done without first obtaining a building permit therefor from the Building Inspector * * (italics supplied) and that “Any person desiring a building permit * * * shall file with the building inspector an application therefor.” (Italics supplied) The zoning ordinance provides in Section 79 thereof for penalties to be inflicted upon “any person” who violates the provisions thereof; and Section. 84 thereof grants the right of an appeal to the Circuit Court of Kanawha County from the decision of the board of adjustment, to “any persons, jointly” or severally, or any taxpayer, or any officer, department, board or bureau of the municipality. Neither the building code nor the ordinance specifically mentions a public building, and, though Code, 2-2-10, defines the word “person” in the following language: “The word ‘person’ or ‘whoever’ shall include corporations, societies, associations and partnerships, if not restricted by the context”; and the general rule in the interpretation of statutes is that the word “person” includes private corporations (United States v. Supply Co., 215 U. S. 50; Covington and — 679 — L. Turnpike Road Co. v. Sandford, 164 U. S. 578), the rule is not applicable in this jurisdiction to State agencies which are an arm of the State, or even to public corporations, which are not State agencies. Welch Lumber Co. v. Carter Bros., 78 W. Va. 11, pt. 2 syl., 88 S. E. 1034. For these reasons we are of opinion that the demurrer to the instant bill of complaint should have been sustained, and, therefore, we reverse the rulings of the trial chancellor. Rulings reversed.