State Ex Rel. Klostermeyer v. City of Charleston

Because of the nature of the writ, matters presented to this Court by means of a proceeding in mandamus are always unusually urgent to the parties concerned. As a result of such urgency, sometimes the parties fail to develop the issues, so that at times there is danger of failing fully and properly to consider those issues.

The unusual urgency of the case at bar has been further accentuated by certain political and financial considerations which are apparent, even from the meager record presented herein. Because of the political urgency of the so-called mandate of the electorate, supported by both political parties in the City of Charleston, the city's council chose to pay the annual expenses incident to the city's garbage disposal system from its general revenue funds. Realizing, perhaps, the financial strain this action would put upon the city's treasury, this proceeding was instituted to annul that action of the council. Thus the political responsibility of the municipal authorities in connection therewith has been shifted.

Probably because of such complications, urgent as they may be, I do not think that the issues between the parties to this proceeding have been as fully developed as the decided cases and authorities would warrant. I am convinced that, as a result, the majority has reached a decision herein which ignores time-honored and applicable principles of law.

The principles to which I refer are fundamental and inherent in our democracy as established by our Federal and State Constitutions. We are taught that fundamentally the sovereign power of our Government is divided into three separate branches: the executive, the legislative and the judicial. Such division of power is a part of the framework of our Federal, State and Municipal Governments. Although each branch of this power acts as a check upon, and balance for, the other branches, each is an entity within itself in that its powers, respecting the governmental functions it is intended to perform, are inviolable by the others. But in the instant case, this Court, as the supreme authority of the state judicial branch of Government, is asked to control the discretionary action of a municipal legislative body. Undoubtedly, we have authority to check the functions of the municipal legislative body in so far as it operates as a purely administrative board, if such body acts in a capricious, arbitrary, or fraudulent manner, or acts on a mistaken view of the law. Equally so, there can be no doubt that we are without authority to control or interfere with the proper and lawful exercise of a legislative discretion by the Charleston City Council. I am convinced that the decided cases of this jurisdiction support the proposition that the actions of the city council under attack in this proceeding are legislative in their character, and were lawfully exercised.

Citing the case of Hayes v. The Town of Cedar Grove, 126 W. Va. 828,30 S.E.2d 726, as authority, the majority opinion admits that the question of garbage disposal is a governmental function of a municipality; and that the municipal council can exercise its legislative discretion by charging the costs thereof to the city's general revenue. Chapter 68, Acts of the Legislature, 1935, provides an alternative method by which a municipality may exercise its governmental functions in this respect. But the majority opinion, admitting the council's legislative prerogative initially, states that once exercised, by adopting the benefits provided for in Chapter 68, Acts of the Legislature, 1935, the council loses its legislative discretion and becomes an administrative board only. It is in this respect that I disagree. Certainly, the council, as an administrative body, functions in the capacity of a trustee for the security of holders of bonds issued under the provisions of Chapter 68, Acts of the Legislature, 1935. But the Legislature did not intend by the passage of Chapter 68, Acts of the Legislature, 1935, to deprive the council of any municipality of its duly constituted legislative discretion and authority. I am of the opinion that the Act of the Legislature under discussion merely placed upon a municipal council a secondary role, without effect upon legislative functions otherwise duly delegated to it.

In point 4, syllabus, Warden v. Grafton, 125 W. Va. 658,26 S.E.2d 1, this Court said: "The validity of municipal revenue bonds * * * is not impaired or affected by the fact that funds derived from general taxation, or from other sources, also has been, or are to be, used * * *." In the body of the opinion, this Court stated: "Of course, the city, previous to the enactment of this statute [Ch. 68, Acts, 1935], had the power to expend its own funds, or to raise funds through validly issued bonds for the purpose of building, or aiding in the construction of, a hospital. This power is by the very terms of Chapter 68, Acts of theLegislature, 1935, itself [Section 25], untouched, survives infull, and prevails over any provision of that act which mightotherwise be construed as conflicting therewith." (Italics supplied.) Thus we see that this Court, as well as the Act itself, has heretofore recognized that legislative discretion exists and is continuing, despite Chapter 68, Acts, 1935. But the crux of the majority opinion herein is to the effect that a municipality loses its legislative discretion by electing to avail itself of the benefits provided by Chapter 68, Acts, 1935.

In the instant case, the relators fall within and represent two separate classifications: taxpayers and bondholders. It is clear that as taxpayers they cannot complain of the council's actions herein. The council has merely appropriated money from its general revenue funds for the payment of what is, admittedly, a governmental function. See Hayes v. The Town ofCedar Grove, supra. "A town may expend its current revenues and accrued funds and make contracts to that end." Clay Co. v. NewMartinsville, 67 W. Va. 525, 68 S.E. 118. The fact that included in the appropriation were funds to be applied to the payment of interest and principal of the revenue bonds, secured by a lien upon the garbage disposal plant, does not affect the validity of that appropriation. Such funds are properly a part of the annual operating expenses of the entire garbage disposal system.

Nor does such action constitute an assumption of the bonded indebtedness of the garbage disposal plant. It is merely an annual appropriation of funds from which the interest and principal accruing within that year, can be paid. "If the contracts and engagements of a municipal corporation do not overreach the dependable current resources for which provision exists at the time the contracts and engagements are assumed, no lawful objections to them can be interposed, however great the indebtedness of the municipality may be." Clay Co. v. New.Martinsville, supra. See Warden v. Grafton, supra; Allison v.City of Chester, 69 W. Va. 533, 72 S.E. 472; 41 W. Va. Law Quarterly, 78.

If the relators, as taxpayers, feel aggrieved, their recourse is to the electorate and not to this Court. Admittedly, the referendum election held on the question is not controlling, but certainly it was advisory in that it reflected the desires of the majority of the voters.

Nor, in my opinion, can the bondholders complain. They admit that there has been no default in payment of the principal or interest on any of the bonds as due. They contend that payment to them from the general revenues of the city would be unlawful and thus recoverable by the city. But, as heretofore pointed out, such payment under an ordinance, properly appropriating money therefor, could not be the subject of a valid, legal complaint.

The bondholders urge that the debts owned by them, and the security thereof, might eventually be affected by the present action of the city council. That is to say that the general revenues of the city, at some future date, may not be sufficient to allow for appropriations therefrom providing for payment of the then accruing principal and interest. This may be true. But in such event they are fully protected by the provisions of the bonds and the statute under which the bonds were issued. The provisions of Section 24, Chapter 68, Acts, 1935, quoted in the majority opinion as Code, 8-4A-24, were designed to protect against such eventuality. But where default in the payment of the bonds is speculative and in futuro, that section was not intended to authorize the judicial branch of the government to supplant the legislative discretion vested in the municipal council. In other words that section does not become operative so as to divest the city council of its legislative discretion until there is default, or the imminence thereof can be clearly shown. No such case is presented here, and, under the circumstances of this case, I am unable to see whereby the sanctity of the bonds, as contracts, is violated or threatened to be violated.

This Court has stated: "`* * * Where legislative power is conferred upon * * * [a municipal corporation] * * * by the State it is necessary that a degree of freedom should be allowed in its exercise; otherwise, the city would be so hampered in the government of its people as would defeat the very ends of its incorporation. Hence it is that state courts will never interfere with the free exercise of such rights as are left to the discretion of a corporate authority, unless such authority should go beyond the scope of power delegated, or unless the discretion given should be abused by an arbitrary exercise thereof, and by a plain and unwarranted violation of private rights.'" Philippi v. Water Co., 99 W. Va. 473, 481,129 S.E. 465.

Indeed, the general rule is well stated in the following language: "Assuming that the municipal authorities have acted within the orbit of their lawful authority, no principle of law is better established than that courts will not sit in review of proceedings of municipal officers and departments, especially those involving legislative discretion, in the absence of bad faith, fraud, arbitrary action or abuse of power. Thus where a municipal board is authorized to do a particular act in its discretion, the courts will not control that discretion unless manifestly abused, nor inquire into the propriety, economy and general wisdom of the undertaking, or into the details of the manner adopted to carry the matter into execution." 1 McQuillin Municipal Corporations, Second Edition, Revised, Section 390. See I Dillon on Municipal Corporations, Fifth Edition, Section 242.

In the instant case, the majority opinion admits that the city council is authorized to appropriate money from the city's general revenue funds for garbage disposal purposes; it is not contended that the city council has arbitrarily, fraudulently, or capriciously exercised any discretion granted it; and though, by way of speculation, at some future date there may be a violation of some private rights by default in the payment to the bondholders, there certainly is no "plain and unwarranted" violation of those rights at present. Therefore, I am of opinion that the principles of Philippi v. Water Co., supra, fully apply to the case at bar.

The result of this proceeding is typical of a trend in centralization of government, which eventually will eliminate local self-government. The benefits of local self-government are attested by its long use throughout history by liberty loving peoples.

Moreover, since any expenses incident to the collection of garbage at households throughout the city, and transportation thereof to the garbage disposal plant, are not involved in this litigation, they should not be considered by the respondents in establishing the rates and charges required by the writ herein. By implication the writ so directs. But because such expenses are so closely related to the charges which the writ does require to be considered, I think that the writ, as well as the opinion, should, by explicit language, exclude the expenses of garbage collection and transportation.

Convinced that the majority opinion ignores the principles discussed herein, and that those principles, supported as they are by the decided cases, are controlling, I would refuse the writ herein sought.