Appendix — Elmore v. North Beckley Public Service District

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IN THE SUPREME COURT OF APPEALS OF

WEST VIRGINIA

CHARLESTON

STATE OF WEST VIRGINIA ex rel

TAXPAYERS PROTECTIVE ASSOCIATION OF

RALEIGH COUNTY, BOX 236, SPRAGUE, WEST

VIRGINIA and ALL OTHERS SIMILARLY

SITUATED, C.M. ELMORE, President,

Petitioner

VS. IN MANDAMUS

THE NORTH BECKLEY PUBLIC SERVICE

DISTRICT,

Respondent

THE APPLICATION OF THE RELATOR FOR

A WRIT OF MANDAMUS

The Petitioner, Taxpayers Protective Association of

Raleigh County, respectfully represents to the Court that:

I.

The Taxpayers Protective Association of Raleigh

County, Box 236, Sprague, West Virginia, is a legally

created association chartered on August 24, 1966, and

recorded in the County Clerk’s Office of Raleigh County, in

Book No. 452, at page 299, C.M. Elmore, President.

Il.

In regard to the North Beckley Public Service District.

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Resolution authorizing the issuance of $930,000, Sewer

Revenue Bonds, Series 1964, of North Beckley Public

Service District, Raleigh County, West Virginia, to finance

part of the costs of construction and acquisition of a

complete sewer system for the district.

We, the Taxpayer’s Protective Association of Raleigh

County, pray that the Supreme Court of Appeals of West

Virginia, will rule on the constitutionality of the case laws

pertaining to the constitutionality of the bond

indebtedness. The West Virginia Constitution singles out

no “discreet and insular minority” for special treatment.

The three-fifths requirement applies equally to all bond

issues for any purpose, whether for schools, sewers or

highways.

Ill.

Article 13A, Section 3, Chapter 134 of the West Virginia

Code reads as follows: “From and after the date of the

adoption of the order creating any such public service

district, it shall thereafter be a public corporation and

political subdivision of the State with power of a perpetual

succession, but without any power to buy or collect ad

valorem taxes. Each such district shall have power to

acquire, own and hold property, both real and personal, in

its corporate name and shal! have power to sue, may be

sued, may adopt an official seal.

A. F. Gordon, etal ) On Writ of Certiorari

Petitioners ) to the Supreme Court

Vv ) of Appeal of West

Virginia

Granville H. Lance, et al )

Mr. Chief Justice Burger delivered the opinion of the

Court:

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We granted certiorari to review a challenge to a 60% vote

requirement to incur public debt as violative of the

Fourteenth Amendment.

The Constitution of West Virginia and certain West

Virginia statutes provide that political subdivision of the

State may not incur bonded indebtedness or increase tax

rates beyond those established by the Constitution without

approval of 60% of the voters in a referendum election.

On April 29, 1968, the Board of Education of Roane

County, West Virginia, submitted to the voters of Roane

County a proposal calling for the issuance cf general

obligation bonds in the amount of $1,830,000 for the

purpose of constructing new school buildings and

improving existing educational facilities. At the same

election, by separate ballot, the voters asked to authorize

the Board of Education to levy additional taxes to support

current expenditures and capital improvements. Of the

total votes cast, 51.55% favored the bond issues and 51.51%

favored the tax levy. Having failed to obtain the requisite

60% affirmative vote, the proposals were declared defeated.

Following the election, respondents appeared before the

Board of Education on behalf of themselves and other

persons who had voted in favor of the proposals and

demanded that the Board authorize the bonds and the

additional taxes. The Board refused.

Respondents then brought this action, seeking a

declaratory judgment that the 60% requirements were

unconstitutional as violative of the Fourteenth

Amendment. In their complaint they allegded that the

Roane County Schools had been basically unimproved

since 1946 and fell far below the State average, both in

classroom size and facilities. They further alleged that six

similar proposals had been previoulsy defeated, although

each had received majorities of affirmative votes ranging

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from 51.51% to 55.84%. The West Virginia trial court

dismissed the complaint. On appeal, the West Virginia

Supreme Court of Appeals reversed, holding that the state

constitutional and statutory 60% requirement violated the

Equal Protection Clause of the Fourteenth Amendment.

170 S.E. 2nd 783 (W. Va. 1969). We granted certiorari. 397

U.S. 1020 (1970) and for the reasons set forth below we

reverse.

The court below relied heavily on two of our holdings

dealing with limitations on the right to vote and dilution of

voting power. The first was Gray v. Sanders, 372 U.S. 368

(1963), which held that Georgia’s county-unit system

violated the Equal Protection Clause, because the votes of

primary electors in one county were accorded less weight

than the votes of electors in other counties. The second was

Cipriano v. Houma, 395 U.S. 701 (1969), in which we held

impermissible the limitation to ‘‘property taxpayers’’ of the

right to vote in a revenue bond referendum. From these

cases the state court concluded that West Virginia’s

requirement was constitutionally defective, because the

votes of those who favored the issuance of the bonds had a

proportionately smaller impact on the outcome of the

election than the votes of those who opposed issuance of the

bonds.

We conclude that the West Virginia court reliance on the

Gray and Cipriano cases were misplaced. The defect this

court found in those cases lay in the denial or dilution of

voting power because of group characteristics - geographic

location and property ownership - that bore no valid

relation to the interest of those groups in the subject matter

of the election; moreover, the dilution or denial was

imposed irrespective of how members of those groups

actually voted.

Thus in Gray, supra, at 381 n. 12, we held that the county-

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unit system would have been defective even if unit votes

were allocated strictly in proportion to population. We

noted that if a candidate received 60% of the votes cast in a

particular county he would receive that county’s entire unit

40% cast for the other candidates being discarded. The

defect, however, continued to be geographic

discrimination. Votes for the losing candidates were

discarded solely because of the county where the votes were

cast. Indeed, votes for the winning candidate in a county

were likewise devalued, because all marginal votes for him

would be discarded and would have no impact on the state-

wide total.

Cipriano was no more than a reassertion of the principle,

consistently recognized, than an individual may not be

denied access to the ballot because of some extraneous

condition such as race, e.g., Gomillion vy. Lightfoot, 364

U.S. 339 (1960); wealth, e.g., Harper vy. Virginia Board of

Elections, 383 U.S. 663 (1966); tax status, e.g., Kramer v.

Union Free School Dist., 395 U.S. 621 (1969): or military

status, e.g., Carrington v. Rash, 380 U.S. 89(1965).

Unlike the restrictions in our previous cases, the West

Virginia Constitution singles out no “discrete and insular

minority’’ for special treatment. The three-fifths

requirement applies equally to all bond issues for any

purpose, whether for schools, sewers, or highways. We are

not, therefore, presented with a case like Hunter vy.

Erickson, 393 U.S. 385 (1969); in which fair housing

legislation alone was subject to an automatic referendum

requirement.

The class singled out in Hunter was clear - ‘‘those who

would benefit from laws barring racial, religious, or

ancestral discriminations”, supra, at 391. In contrast we

can discern no independently identifiable group or category

that favors bonded indebtedness over other forms of

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financing. Consequently no sector of the population may be

said to be “fenced out” from the franchise because of the

way they will vote Cf. Carrington v. Rash, supra, at 94.

Although West Virginia has not denied any group access

to the ballot, it has indeed made it more difficult for some

kinds of governmental actions to be taken. Certainly any

departure from strict majority rule gives disproportionate

power to the minority. But there is nothing in the language

of the Constitution, our history or our cases that requires

that a majority always prevail on every issue. On the

contrary, while we have recognized that state officials are

normally chosen by a vote of the majority of the electorate,

we have found no constitutional barrier to the selection of a

governor by a state legislature, after no candidate received

a majority of the popular vote. Fortson v. Morris, 385 U.S.

231 (1966).

The Federal Constitution itself provides that a simple

majority vote is insufficient on some issues; the provisions

on impeachment and ratification of treaties are but two

examples. Moreover, the Bill of Rights removes entire areas

of legislation from the concept of majoritarian supremacy.

The constitution of many States prohibit or severely limit

the power of the legislature to levy new taxes or to create or

increase bonded indebtedness, thereby insulating entire

areas from majority control. Whether these matters of

finance and taxation are to be considered as _ less,

“important”, than matters of treaties, foreign policy or

impeachment of public offices is more properly left to the

determination by the States and the people than to the

courts operating under the board mandate of the

Fourteenth Amendment. It must be remembered that in

voting to issue bonds voters are committing in part the

credit of infants and of generations yet unborn, and some

restriction on such commitment is not an unreasonable

demand. That the bond issue may have the desirable

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objective of providing better education for future

generations goes to the wisdom of an _ indebtedness

limitation; it does not alter the basic fact that the balancing

of interests is one for the State to resolve.

Wisely or not, the people of the State of West Virginia

have long since resolved to remove from a simple majority

vote the choice on certain decisions as to what indebtedness

may be incurred and what taxes their children will bear.

We conclude that so long as such provisions do not

discriminate against or authorize discrimination against

any indentifiable class they do not violate the Equal

Protection Clause. We see no meaningful distinction

between such absolute provisions on debt, changeable only

by constitutional amendment, and provisions that

legislative decisions on the same issues require more than a

majority vote in the legislature. On the contrary, these

latter provisions may, in practice, be less burdensome than

the amendment process. Moreover, the same

considerations apply when the ultimate power, rather than

being delegated to the legislature, remains with the people,

by way of a referendum. Indeed, we see no constitutional

distinction between the 60% requirement in the present

case and a state requirement that a given issue be approved

by a majority of all registered voters. Cf. Clay V. Thornton,

253 S.C. 209, 169, S.E 2nd 617 (1969), appeal dismissed,

397 U. S. 39 (1970).

That West Virginia has adopted a rule of decision,

applicable to all bond referenda, by which the strong

consensus of three-fifths is required before indebtedness is

authorized, does not violate the Equal Protection Clause or

any other provision of the Constitution.

IV.

At this very court in case no. 12995 filed December 15,

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1970, the ruling of the capital complex, in the Supreme

Court of Appeals, West Virginia, it was the ruling of the

court. It is the view of this court that the legislature has no

such authority, and that if a building complex were to be

created involving scores of millions of dollars; it was the

duty of the legislature to adopt a resolution placing that

question upon the ballot for determination by the people of

this state in the same manner in which road bonds were

voted upon. Although the bonds in question are designated

as revenue bonds. The term revenue bonds means that over

a period of twenty or more years.

The respondents authorities seem to admit that this

method of financing is at least questionable. They reason,

however, that such method is necessary to provide for the

acquisition of needed improvements. They would take the

matter of financing needed projects out of the hands of-the

electorate. We believe this is neither advisable nor

desirable. We cannot permit the exigency of a situation to

override constitutional safeguards.

In considering the constitutionality of a legislative

enactment, courts must exercise due _ restraint in

recognition of the principle of the separation of power in

government among the judicial, legislative and executive

branches. Every reasonable construction must be restored

to be the courts in order to sustain constitutionality and any

reasonable doubt must be resolved in favor of the

constitutionality of the legislative enactment in question.

Courts are not concerned with questions relating to

legislative policy. The general powers of the legislature,

within constitutional limits, are almost plenary. In

considering the constitutionality of an act of the legislature,

the negation of legislative power must appear beyond

reasonable doubt.

The following statement appears in Clayton v. Kervick, 52

N.J. 138, 150 244 A.2nd 281, 287. The common law did not

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recognize future rents as present debts or liabilities and the

holdings in most of the cases throughout the country

dealing with debt limitation clauses are to the same effect.

That statement is followed by citation in the opinion of

approximately fourteen court decisions, including a

decision of the Supreme Court of the United States to the

same effect.

The Fourteenth Amendment, after declaring that no

state shall make any law which shall abridge the privileges

of citizens of the United States, adds: “Nor deny to any

person within its jurisdiction the equal protection of the

laws.”” Here is a distinction between citizens of the United

States and ‘‘any persons,” whether citizen or alien, residing

or happening to be within the borders of a state. The

declaratory clause forbids any abridgement of the rights of

citizens of the United States. The remedial clause gives

equal protection to all persons whatever while within a

State's borders. It establishes equality between all persons

in their right to protection, but does not confer equality in

the privileges they are to enjoy. It provides that whatever

privileges the constitution and laws of the United States

confer upon a citizen as a citizen of the United States shall

be enjoyed without abridgment, and it provides that all

persons within a state, whether a citizen of the United

States, or of the states, or aliens, shall be equally protected

by the laws in whatever privileges, whether equal or not

equal, the may have fromthe United States or from thestate.

However, unequally their privileges respectively, yet a

foreigner, a citizen of another American state, and a citizen

of the state, shall have the benefit equally in the state of all

remedial laws for the recovery of rights, and of all legal

safeguards ordained for the protection of life, liberty and

property.

“It is doubtless true that a state may act through

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different agencies, either by its legislative, its executive, or

its judicial authorities; and the prohibitions of the

amendment extend to any action of the state denying equal

protection of the laws, whether it be action by one of these

agencies or by another, Congress, by virtue of the fifth

section of the Fourteenth Amendment, may enforce the

prohibitions whenever they are disregarded by either the

legislative, the executive, or the judicial department of the

state. The mode of enforcement is left to its discretion.

The scope of the prohibition of that clause of the

Fourteenth Amendment of the federal constitution which

forbids any state to deny the equal protection of the laws to

any person within its jurisdiction is broader than that of the

Fifth Amendment. It applies to, and may be violated by

state action of every kind, by any agency or instrumentality,

including not only legislative, see infra, subdivision of this

section, but also judicial and executive or administrative,

action, at least insofar as intentional and arbitrary, or

unjust and illegal, discrimination is concerned. It does not

apply to action by congress, a territory, an individual or a

private corporation, and of course, particular state action,

although within its application, may not infringe or violate

it.

We cited this constitutional provision to show that the

Court, an agent of the state, was requiring some of the

inhabitants of the area to hook on to the system and assume

the obligation to pay the outstanding bonds while it did not

bother in the same or similar circumstance to assume the

same or equal responsibility.

With bearing in mind that the North Beckley Public

Service District was unlawfully created and does not even

have a charter; who high handed, invaded private property

without the consent of the property owner or without

paying any compensation to the owner or without getting

easement or right of way.

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On page fourteen (14) on the Bond Resolution. —

This Bond is one of an authorized issue of Bonds in the

aggregate principal amount of Nine Hundred Thirty

Thousand Dollars ($930,000) of like date, tenor and effect

except as to number, interest rate, date of maturity and

redemption provisions, issued to finance part of the cost of

the construction and acquisition of a complete sewer system

of the District under the authority of and in full compliance

with the Constitution and Statutes of the State of West

Virginia, among other things.

The constitution was violated when bonds were sold

without the vote of the people and without a referendum

election. Placing liens on private owned property to try to

force people to connect to the North Beckley Public Service

District Sewer System. That it was so constructed that man

holes overflowed and raw sewage was dumped into Little

White Stick Creek at a pump station setting on the creek

bank. And also has a fifteen (15) inch pipe outlet running in

this creek. Also, at Cranberry Creek at a pump station

which also has a fifteen (15) inch pipe outlet into the creek.

This has continued on and off since it was put in in 1965.

Manholes have overflowed in different places on peoples

private owned property.

That after the North Beckley Public Service District was

supposed to have been created and was not feasible the

Chairman of the Board of Directors allowed the Raleigh

County Airport Authority to put in another Public Service

District within the boundary of the North Beckley Public

Service District which is in violation with the Bond

Resolution on Page thirty-nine (39). And also the law ss

1409 (S) (S) Sewage Treatment Plant. Provided, that such

works established or constructed by said sanitary district

shall serve and benefit the entire territory within the

sanitary and not otherwise. They also allowed another

Public Service Lagoon type system to be put right in the

—.

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center of the North Beckley Public Service District which is

called the Stanaford Acres. Which has a service charge of

Three Dollars and Fifteen Cents ($3.15) flat rate a month

and approximately one hundred (100) customers. They

expect the other people in the North Beckley Public Service

District to pay Five Dollars and Sixty Six Cents ($5.66) for

the first two thousand (2,000) gallons and we have bills on

the average of Thirty Dollars ($30.00) or more a month.

On Page twenty-seven (27) and twenty-eight (28) on the

Bond Resolution, Section 4.03, Sale of the System. The

System may be sold, mortgaged, leased, or otherwise

disposed of only as a whole, or substantially as a whole,

only if the net proceeds to be realized shall be sufficient

fully to pay or redeem at or prior to maturity all the Bonds

and the interest thereon, among other things in the Bond

Resolution.

On page two (2) on the Bond Resolution, particularly

described in and according to the plans and specifications

prepared by Holley, Kenney, Schott & Associates, Inc.,

Consulting Engineers, of Beckley, West Virginia.

That the Taxpayer’s Protective Association of Raleigh

County can prove that the engineering firm of Holley,

Kenney, Schott & Associates, Inc., never made a field

survey out in the communities and did in fact overlap

Beckley’s sewer lines and hooked some of Beckley’s

customers on to the North Beckley Public Service District.

But they did charge for making a field survey, and also

charged for residential inspection which was never made.

There was never a feasibility study made of the district.

Page thirty-nine (39) of the Bond Resolution.

Section 4.14. No Competition.

The district will not grant, or cause, consent to or allow

the granting of any franchise, permit or right to any person,

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firm, corporation, body, agency or instrumentality

whatsoever for the services provided by the system to or

within the district.

That the citizens of the North Beckley Public Service

District have been intimidated and threatened to sell their

property and placed liens against their property, for not

engaging in the illegal sell of bonds that were sold by the

North Beckley Public Service District which is not a

government agency, and does not do any government

business or function in any government business, that the

sewer lines were laid through their property without first

paying for the reasonable value of the land appropriated

and obtaining the consent of each of the defendants to lay

said lines, and the defendants say that the property has

been taken in contravention of Section 9, Article 3 of the

Constitution of West Virginia, and of the Fourteenth

Amendment to the Constitution of the United States: and

the defendants say that said sewer lines now existing under

and upon their property constitute a continuing and illegal

trespass and that these plaintiffs have no right in law or

equity to maintain said lines upon the respective properties

of the defendants herein.

Implied power to issue negotiable bonds when expressly

authorized to borrow money.

As a result of the narrow construction of the city’s powers

to borrow money, many charters now expressly grant

municipalities the power to borrow money. Does this

express power carry with it an implied power to issue

negotiable bonds for the loan? The question is an

important one, for it is one of the characteristics of

negotiable instruments that certain defenses which would

render the instruments unenforceable in the hands of the

original holders are lost if they pass into the hands of

persons to when they are transferred for value, before

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maturity, without notice of such defenses. The Supreme

Court of the United States in the case of Brenham v.

Bank(6) held that such a power was not one fairly to be

implied as incidental to the express power to borrow

money. Three of the nine members of the court, however,

dissented from the conclusions of the court, and pointed

out that Judge Dillon agreed with their view rather than

with that of the majority. Judge Dillon’s statement is as

follows. ‘““Express power to borrow money, perhaps in all

cases, but especially if conferred to objects for which large

or unusual sums are required, as for example subscriptions

to aid railways and other public improvements, will

ordinarily be taken, if there be nothing in the legislation to

negative the inference, to include the power (the same as if

conferred upon a corporation organized for pecuniary

profit) to issue negotiable paper with all the incidents of

negotiability. It would seem that the view of the minority of

the United States court represents not only the better view,

but also the weight of authority.

* (6) 144 U. S. 173.

Constitutional restrictions on power to incur

indebtedness.

Perhaps the reluctance of the courts to imply broad

financial powers on behalf of the local corporations is

justified by experience, which shows that many of them when

granted the wider powers promptly exercised then to so

great extent as to become bankrupt. Because of this it is not

uncommon to find in the state constitution limitations

forbidding the local corporations to borrow beyond certain

limits, usually a fixed percentage of their assesed valuation.

As usual, these constitutional limitations have given rise to

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much litigation. In Valparaise v.Garnder (7) taxpayers

sought an injunction to stop the letting of a contract to a

waterworks company for the supply of water for twenty

years at $6,000 a year. The municipal corporation had no

money in the treasury at the time and had reached the limit

not by the constitution to its indebtedness. The

constitutional provision in question provided that ‘‘no

political or municipal corporation in this state shall ever

become indebted, in any manner or for any purpose, to an

amount in the aggregate exceeding two per centum on the

value of the tabable property within such corporation, to be

ascertained by the last assessment for state and county

taxes previous to the incurring of such indebtedness; and

all bonds or obligations, in excess of such amount, given by

such corporation shall be sold.” The court decided that as

the water rent would only become due in annual

installments an indebtedness within the meaning of the

constitution.

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* (7) 97 Ind. 1. See also Donovan v. City of Dallas, 377 U.S. 403 (1964)

On the other hand, in the case of Spilman v. Parkersburg

(8) the court held the obligation incurred was a debt. The

facts were that the city, being indebted up to the

constitutional limits, entered into a contract which

purported to be a lease of an electric lighting plant, paying

so much per year, but with an option to buy the plant at the

end of the period for $1; plainly, said the court, a contract

of purchase, creating a debt for the whole sum due in

installments. The distinction between this and _ the

preceding case seems to be that in the former the article,

water, was to be furnished from year to year, and the debt

accrued at once. From these two cases it is obvious that the

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interpretation of these apparently plain constitutional

provisions is not so simple as at first sight seems to be the

case. A full discussion would occupy more space than is at

our command, and we must content ourselves with noticing

that some courts hold that the limitation does not apply to

indebtedness incurred for expenses imposed upon quasi-

municipal corporations by state law, but only to

indebtedness voluntarily incurred by the county or town (9),

while others adopt the contrary view (10). Perhaps a slight

difference in the wording of the constitutional provisions

may explain some of the apparent conflict. It is also

possible for a city to escape the constitutional provision by

providing for assessing the cost of local improvements upon

abutting property, so drawing the contracts that no liability

to pay rests upon the city (11).

* (8) 35 W. Va. 605.

(9) Rauch v. Chapman, 16 Wash. 568.

(10) Barnard v. Knox Co., 105 Mo. 382.

(11) Davis v. Des Moines, 71 lowa 500.

Right of holders in due course of negotiable bonds:

Recitals. In those cases in which municipal corporations

have been given power to issue negotiable bonds, it is

difficult to determine the question of the rights of holders

of the same who have purchased them in good faith, for

value, and without notice that certain formalities required

by law have not been satisfied. Very often the law requires

that the voters of the locality sanction the issue by a

majority vote. If this is not done, may a holder in due

course, i.e., a transferee for value without notice of the fact

that no vote was had, enforce the bonds? It is clear that if

the bonds as issued or as to the prior votes or proceedings of

the voters, no recovery can be had, even by a holder in due

course (12),

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Where, however, the officers whose duty it is to ascertain

whether all conditions required by statute have been

complied with, insert in the bonds a recital that they

have, e.g., that the election was duly held and a

majority vote given sanctioning their issue, it is held

that a holder in due course may recover (13). The idea

back of this is that the legislature must intend the officials

to announce the result and that other persons may rely

upon their statements--clearly a fair rule. In the case cited

the court put it as follows: ‘‘Where legislative authority has

been given to a municipality, or to its officers, to subscribe

for the stock of a railroad company, and to issue municipal

bonds in payment, but only on some precedent condition,

such as a popular vote favoring the subscription, and where

it may be gathered from the legislative enactment that the

officers of the municipality were invested in power to decide

whether the condition precedent has been complied with

their recital that it has been, made in the bonds issued by

them and held by a bona fide purchaser, is conclusive of the

fact and binding upon the municipality; tor the recital is

itself a decision of the fact by the appointed tribunal.”

* (12) March v. Fulton Co., 10 Wall 676.

(13) Coloma v. Eaves, 92 U.S. 484.

The limitations on this doctrine are clearly set forth by

Mr. Justice Gray of the United States Supreme Court in the

case of Sutliff v. Lake County Commissioners (14): “In

those cases in which this court has held a municipal

corporation to be estopped by recitals in its bonds to assert

that they were issued in excess of the limit imposed by the

constitution or statutes of the state, the statutes, as

construed by the court, left it to the officers issuing the

bonds to determine whether the fact existed which

constituted the statutory or constitutional condition

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precedent, and did not require those facts to be made a

matter of public records. But if the statute expressly

requires those facts to be made a matter of public record,

open to the inspection of every one, there can be no

implication that it was intended to leave that matter to be

determined and concluded, -contrary to the facts so

recorded, by the officers charged with the duty of issuing

the bonds.” In other words, it must appear that the recitals

relied upon must be made by officers whose duty it was,

under the statute authorizing the issue of the bonds, to

ascertain and determine whether all conditions were

complied with, “‘not merely for themselves, as the ground of

their own action, in issuing the bonds, but, equally as

authentic and final evidence of their existence for the

information and action of all others dealing with them in

reference to it” (15). In the case from which the foregoing

extract is taken, the court concluded that the holder in due

course of the bonds in question could not recover, as the

recitals were not of the required character.

* (14) 147 U.S. 230

(15) Harlan, J., in Bank of Toledo v. Porter Township, 110 U.S. 608

Right to recover from a public corporation in quasi-

contract, the principles of the law relating to quasi-

contracts are treated as follows: As pointed out there, the

basis of the liability is the fundamental principle that no

person shall unjustly enrich himself at another’s expense.

This principle, of course, may be applied to corporations,

private and public, as well as to natural persons. For

example, on who paid money to a city for invalid bonds was

permitted, on returning the bonds, to recover, not on the

contract contained in the bonds, but on a quasi-contractual

Se I LT LEAL ALIEN | LL ILE ALLIES

19a

duty to restore the amount paid(16). The bonds were invalid

because not having been registered with a state official, but

the city officials concealed this by antedating them so that

they appeared to have been issued before the act requiring

registration went into effect. However, a recovery in quasi-

contract will be denied if to permit it will result in

destroying the effect of limitations placed upon the powers

of a municipal corporation to protect the taxpayers from

what is popularly known as “‘graft”’. In McDonald v.Mayor

of New York (17) the charter of the city required contracts

for the purchase of supplies above a certain amount to be

let to the lowest bidder--obiviously to protect the public

from the payment of exorbitant prices. The plaintiff

furnished supplies to the city in virtue of an agreement not

made in accordance with the charter provision. He could

not, of course, recover on the contract, as that was clearly

void; but sought to reach the same results by relying on the

fact that the city had had and used the supplies, and should

pay for them, at least, their reasonable value. A recovery

was denied, the court saying that all who dealt with the city

must at their peril ascertain the limitations contained in the

city charter, and that to permit any recovery at all would

nullify the limitation in question.

——_—_———_—

* (16) City of Louisiana v. Wood, 102 U.S. 294.

(17) 68 N.Y. 23; 23 Am. Kep. 144.

Affirmative damage caused by defective public works. It

is a different matter, however, if the city plans a public

work, carries it out, and so changes the situation that

damage is caused which would not otherwise have been

inflicted on the plaintiff (S1A).For example in Seifert v.

Brooklyn (53) the city planned a sewer which did not have

sufficient capacity to carry the sewage, the result being that

20a

sewage canie us -hrough the manholes of the sewer and

flooded plaintiff's property. The city was very properly held

liable. The differen<e is between omitting to prevent injury

to plaintiff in the second. This very obvious distinction has

not been kept in mind, and ageneral statement that a city is

not liable merely because it failed to adopt a plan for

adequate public works, true enough when applied to proper

cases, has been used to deny liability when the city has

acted in constructing a public work so as to damage the

plaintiff in a way in which he would not have been injured if

the city had not acted. For example, in Johnston v. District

of Columbia (SA) foul water from a sewer escaped into

plaintiff's land, because of the inadequacy of the original

plan in failing to provide for a sewer of sufficient capacity

to carry the water and sewage. A recovery vas denied, on

the ground that the municipality was vesied with a

discretion in providing public works and the court could

not undertake to supervise their exercise of that discretion.

The result of such a decision is that if an inadequate plan

for a sewer is adopted and injury results, even from a

physical invasion of plaintiff's premises, the city is not

liable, but if an adequate plan is adopted and defectively

executed, the city is liable if the same kind of injury results.

This is hardly a satisfactory result, and the better view

seems to be that taken in other cases, that, for acts of

commission such as this, the city is liable, even if the injury

results from a defective plan. It is assumed, of course, that

in all these cases the public work is of a private and local

character, and not purely public and governmental. As

previously stated, the cases are conflicting in their

decisions upon these questions it is difficult to state the law

with any degree of accuracy. In Detroit v. Beckman (SS) the

injury complained of resulted from the adoption by the city

of a defective plan for a culvert, the plaintiff driving off the

end of the culvert into a ditch. The city was held not liable,

on the ground that the adoption of a plan was legislative in

—————————————————————————

21a

character and adequacy could not be reviewed by the court.

The same court, however, holds, the city liable if the act

results in a physical invasion of another’s property, as in

Ashley v. Port Huron (56); but it seems that the rule ought

to be that if the city creates a dangerous situation which did

not previously exist and injury results from that, it should

be responsible therefor. That was the view taken in Gould

v. Topeka (S6A) in which the injury for which the plaintiff

recovered resulted from being thrown over the side of an

embankment built by the city without any railing or lights,

the original plan calling for none. The tendency of the later

cases seems to be in the direction of compelling the city to

adopt a reasonably safe plan as well as to execute it without

negligence after it has adopted it (S7), though many still

follow the order rule (58).

*<14)Stockstad v. Town of Rutland, 99 N.W. 2nd 813, 8 Wis. 2nd 528, :

(1959). t

(53) 101 N.Y. 136 :

(54) 118 U.S. 19 ;

(55) 34 Mich. 125. &

(S6) 35 Mich. 296. ,

(56A) 32 Kans. 485; 49 Am. Rep. 496. 4

(57) North Vernon v. Voegler, 103 Ind. 314.

(58) Keeley v. Portland, 100 Mo. 260.

Jeresuage.

Se

Liability of public corporations in tort for ultra vires acts.

Since a corporation of any kind is not a natural person, the ;

law has always had considerable difficulty in dealing with

the question of the responsibility of the artifical legal

person for acts done in its name by its members or officers.

On the one hand it is urged that since the corporation is

only an artifical and not a natural person, it can do only

those things it is authorized to do; on the other, it is argued

S|

22a

that in reality the law simply treats the group of persons

who are members of the corporation as one person for

convenience, and that the group really constitute the

corporation. Space fails us to go into this discussion, and

we must content ourselves with noticing that today private

corporations are held to a very wide responsibility in tort,

even for acts involving malice, such as malicious

prosecution. In dealing with public corporation, in addition

to the difficulties arising in connection with private

corporations, we have the additional fact to deal with that

usually the members of the corporation, the voters, do not

authorize the doing of particular things, as do the

stockholders of a private corporation at the stockholder’s

meeting, but merely elect representatives who do all that is

done in the name of the city or other public corporation

undertake a work not authorized by the charter and in

carrying it on injure someone. In the space at our command

we cannot go fully into a discussion of the cases dealing

with this subject. If the work undertaken and in the course

of which the injury occurs be within the general scope of the

authority conferred by the charter upon the municipality

and the officers concerned, although actually in excess of

those powers, the city is liable; but if the undertaking be

wholly beyond the powers of the municipality and its

officers, no liability rests upon the corporation(S9a.)

*(59) The introduction of the initiative and referendum will,

of course change this in many cases.

(S9a) City and County of Denver v. Austria, 318 Pac. 2nd 1101, 136

Cole. 454 (1957); McQuillin on Mrn. Corps. (3rd Ed.)

Vol. 18, Section 53.60.

Prohibition of special legislation. Aside from the

SEV ELEN ES 4 PERLE REEL PEE GERRI LE NS GOGOL GALI T LOR LEIS SAIL DGB DS ORES

23a

question of the power of the legislature in dealing with

public corporations where no express constitutional

provisions are involved, we find that the interpretation of

such express provisions as do exist is by no means free from

doubt and difficulty.

*(21) State v. Haben, 22 Wis. 660.

(22) Mayor v. Baltimore, 15 Md. 376; People v. Draper, 15 N.Y. 532.

I. §13-2D-1 Public Bonded Indebtedness

Article 2D

Airport Development Bond Act

§13-2D-3 Definitions read as follows, the following terms,

whenever used in this article, shall have the following

meaning:

(a) The term ‘‘county court” shall mean a governing body

created pursuant to Section 22 of Article VIII of the

Constitution of this State and any other governing body

established in lieu thereof pursuant to Section 29, Article

VIII, of the Constitution of this state.

II. The Constitution of West Virginia, Article VIII, Section

22, reads as follows: There shall be in each county of the

State a county court, composed of three (3) commissioners

and two(2)of said commissioners shall be a quorum for the

transaction of business. It shall hold four regular sessions

in each year, and at such times as may be fixed upon and

entered of record by the said court. Provisions may be made

by law for hoiding special sessions of said court.

Article VIII, Section 29, reads as follows: The legislature

shall, upon the application of any county, reform, alter or

modify the county court established by this article in such

OI GS OE

24a

county, and in lieu thereof, with assent of a majority of the

voters of such county voting at an election, create another

tribunal for the transaction of the business required to be

performed by the county court created by this article; and

in such case all the provisions of this article in relation to

the county court shall be applicable to the tribunal

established in lieu of said court. And when such tribunal

has been established it shall continue to act in lieu of the

county court until otherwise provided by law.

The Constitution does not give the rights to the West

Virginia State Legislature to create a political sub-division,

which does not function in any government business. For

they were created in Raleigh County for one reason, which

is a Sanitary Sewer System and the County Court does not

have the authority to appoint a governing board for a

public utility of a public corporation. The reason for a

political sub-division for the State of West Virginia was one

purpose only. To deny the people due process of law and

equal protection under the laws in the State of West

Virginia and call it an arm of the State.

We want the Supreme Court of Appeals to rule on the

constitutionality of the Public Bonded Indebtedness a vote

of the people.

We pray that the Supreme Court of Appeals will rule on

the Public Bonded Indebtedness, Chapter 16, Article 13A

of the Code of West Virginia and also Creation of district

by county court Chapter 16, Article 13A, Section 2 of the-

Code of West Virginia.

The Taxpayers Protective Association of Raleigh County,

West Virginia pray that the court will rule on the West

Virginia Code as amendment, 13-2D-3. Definitions on

Section 22, Article 8 of the Constitution of State of West

Virginia also Section 29, Article VIII of the Constitution of

the State of West Virginia.

25a

West Virginia Code, Chapter 16

Public Bonded Indebtedness

and Sewage Services

Article 2D

Airport Development Bond Act

Sec. Sec. Sec.

13-2D-1 13-2D-5 13-2D-9

13-2D-2 13-2D-6 13-2D-10

13-2D-3 13-2D-7 13-2D-11

13-2D-4 13-2D-8 13-2D-12

13-2D-13 ‘

13-2D-14 i

13-2D-15

13-2D-16

13-2D-17 :

13-2D-18

West Virginia Code, Chapter 16 ;

Article 13A E

Public Service Districts for Water '

t

Sec. Sec. j

16-13A-1 16-13A-15 '

16-13A-2 16-13A-16 i

16-13A-3 16-13A-17

16-13A-3a 16-13A-18 [

16-13A-4 16-13A-18a

16-13A-5 16-13A-19 :

16-13A-6 16-13A-20 '

16-13A-7 16-13A-21 é

16-13A-8 16-13A-22 '

16-13A-9 16-13A-23 i

16-13A-10 16-13A-24 :

16-13A-11 16-13A-25 f

16-13A-12 ;

16-13A-13 ‘

16-13A-14 {

:

— POPOL CAI BABI LOI IAD Be ELIA? o

26a

Public Bonded Indebtedness

Revenue Bond Refunding Act

13-2D-15 No Notice, consent or publication required.

No notice to or consent or approval by any other county

court, other governmental body or public officer shall be

required as a prerequisite to the issuance or sale of any

bonds or the making of any agreement mortgage or deed of

trust under the authority of this article. No publication or

notice shall be necessary to the validity of any resolution or

proceeding had under this article. (1967, c. 157).

This is one for the record.

The Constitution of West Virginia

Page 47

1966

Constitutional Improvement Amendment; providing for

submission of amendments to the voters for ratification or

rejection at special elections. Rejected. Vote for, 152, 489;

against 252, 822.

The Constitution of West Virginia

Page 48

Amendment to Better Schools Amendment

Reducing vote necessary to approve excess levies and

bond issues for school purposes from three-fifths to a

majority of the votes cast. Rejected. Vote for 206, 542;

against 212, 883.

That the voters have proven to this State of West Virginia

by the two above amendments that they want an election on

all bond issued for any purpose, school, sewers and

highways.

This notice was never served on anyone in the North

27a

Beckley Public Service District except C.M. Elmore which

was served approximately three (3) years after the sewer was

put in, which is still not completed.

W.VA. Code - Sec. 16-13A-9 - Rules and regulations

KHAKKAKEK HE *

Whenever any district has made available sewer facilities

to any owner, tenant or occupant of any house, dwelling or

building located near such sewer facility, and the engineer

for the district has certified that such sewer facilities are

available to and are adequate to serve such owner, tenant,

or occupant, and sewage will flow by gravity from such

house, dwelling or building into such sewer facilities, the

district shall have the immediate right to charge, and such

owner, tenant or occupant shall have the duty to pay from

and after the date of receiving notice that such facilities are

available, the rates and charges for services established

under this article.

Exhibit D

16-13-18a. Publication of financial statement.

Every sanitary board shall prepare a financial statement

and cause the same to be published as a Class 1 legal

advertisement in compliance with the provisions of article

three, chapter fifty nine of this code, and the publication

area for such publication shall be the sanitary district. Such

statement shall contain an itemized account of the receipts

and expenditures of the board during the previous fiscal

year, showing the source from which all money was derived

and the name of the person to whom an order was issued,

together with the amount of such order, and why such order

RCS IP AT IE PO IEA LE OTC BAA GOK Ig BOLD AMA MEE ERLINDA ALA ALLE LEP BG BATE

28a

was issued, arranging the same under district heads, and

including all money received and expended from the sale of

bonds, and also a specific statement of the debts of such

board, showing the purpose for which any debt was

contracted, the amount of money in all funds at the end of

the preceding year, and the amount of uncollected service

charges. Such statement shall be prepared and published

by the board as soon as practicable after the close of the

fiscal year: Provided, that such statement for the fiscal year

ending June thirtieth, one thousand nine hundred fifty-six,

may be published any time during the year one thousand

nine hundred fifty-seven. The statement shall be sworn to

by the chairman and secretary and treasurer of the board.

If a board fails or refuses to perform the duties

hereinbefore named, every member of the board concurring

in such failure or refusal shall be guilty of a misdemeanor,

and upon conviction thereof, shall be fined not less than

one hundred nor more than five hundred dollars and the

circuit court or criminal court and justices of the peace, of

the county where the offense was committed, shall have

concurrent jurisdiction to try such offense.

AUTHORITIES

Chapter 16, Article 13A, Section 38b of the Code of

West Virginia, as amended.

Daughterty v. Ellis, 142 W.Va. 340, 97 S.E. (2nd) 33.

State v. Morris, 91 W.Va. 269, 112 S.E. 519.

Barbor v. County Court, 8S W.Va. 359, 101, S.E. 721.

Goshorn v. County Court, 42 W.Va. 735, 26 S.E. 482.

5S M.J., Counties, Section 24.

DISCUSSION

The Legislature of the State of West Virginia, in Chapter

16, Article 13A, of the Code provided for the creation of

SELENE LEC GIO OE RIAA LES TS LL IY SS IAD ON IYER) BIDE OE OOO IG: SRI LE DAIL GD LP IE PENAL

29a

public service districts in the exercise of its police powers.

In Section 38b of said Article 13A, the Legislature

established the procedure to be followed in the creation of

such districts. Among other things, it is set out in said

section that:

“When the County Clerk of any county enters an

order on its own motion proposing the creation of a

public service district, as aforesaid, the County Court

shall at the same session fix a date of hearing in such

county on the creation of the proposed public service

district, which date so fixed shall not be more than

forty days nor less than twenty days from the date of

such action.’’ (Emphasis supplied)

This statute under which the County Court of Raleigh

County undertook to act, mandatorily required the fixing of

a date for hearing in the session at which it proposed to

create the North Beckley Public Service District. It is

clearly provided by the statute that such date of hearing

shall not be more than forty days nor less than twenty days

from the date of the entry of the order proposing the

creation.

In the case at bar, the action of the County Court

proposing the creation of the North Beckley Public Service

District was entered of record on the 27th day of November,

1962, and it fixed the date for hearing on the 11th day of

December, 1962, some fourteen (14) days later. It is

significant that the records of all prior sessions of the

County Court are silent as to the proposal to create said

North Beckley Public Service District. In the absence of

recording its action, the County Court could not have and

did not effectively act in regard to the creation of the North

Beckley Public Service District prior to November 27, 1962.

In Daughterty v. Ellis, 142 W.Va. 340, 97 S.E. (2nd) 33,

the Supreme Court of Appeals of West Virginia, speaking

through Mr. Justice Haymond, said (97 S.E. (2nd) at 40):

30a

‘A county court, a corporation created by statute, can

do only such things as the law authorizes it to do and

must act in the manner prescribed by law. (Citations

omitted). A county court can exercise its powers only

as a Court, while in legal session with a quorum

present, and it must follow that procedure and enter

its proceedings of record to make its action valid and

binding. (Citations omitted.)”’

In State ex. rel. Tyler County Court v. Morris, 91

W.Va. 269, 112 S.E. 519, the Court said (112 S.E. at

520):”. . . all proceedings of the county court are

required to be entered of record. Without this, there

can be no binding action of the court.”’

In view of foregoing authority which is based not only on

the decisions cited, but upon authorities cited in those de-

cisions which have been omitted, it is quite clear that no legal

action was taken by the County Court of Raleigh County in

respect to the creation of the North Beckley Public Service

District until November 27, 1962. The statute, hereinbefore

referred to, authorizing the creation of public service

districts and prescribing the method of their creation does

not say that the county court may fix the date for public

hearing on the proposed creation of such a district in not

less than twenty nor more than forty days, the statute

clearly states that the county court shall set such hearing

date at a time in not less than twenty nor more than forty

days. The purpose for this seems obvious. The minimum

period of time as additional notice to the public. The

County Court of Raleigh County certainly had no authority

to attempt to improvise or to alter the statute.

The county court is possessed only of such powers as are

expressly conferred by the Constitution and Legislature,

together with such powers as are reasonably and necessarily

implied in the full and proper exercise of the powers so

3la

expressly given. It can do any such things as are authorized

by law, and in the mode prescribed.

Barbor v. County Court, 85 W.Va. 359, 191 S.E..721;

Goshorn v. County Court, 42 W.Va. 735, 26 S.E. 452.

The County Court of Raleigh County attempted to create

the North Beckley Public Service District in a manner

specifically contrary to the mandatory provisions of law.

Since the North Beckley Public Service District was

invalidly created, it has no power to function and no

standing in this court.

PROPOSITION

The County Court of Raleigh County, West

Virginia, in entering its order on the 27th day of

November, 1962, proposing the creation of the North

Beckley Public Service District, had no power or

authority to relate the entry of said order back to the

13th day of November, 1962.

AUTHORITIES

Gandy v. Elizabeth City County, 179 Va. 340, 19 S.E.

(2nd) 97;

Chaney v. State Compensation Commissioner, 127

W.Va. 521, 33 S.E. (2nd) 284;

Council v. Commonwealth, 198, Va. 288, 94 S.E. (2nd) 245:

’

Stannard Supply Company v. Delmar Coal Company,

110 W. Va. 560, 158 S.E. 907;

Baker v.Gaskins, 125 W.Va. 326, 24 S.E. (2nd) 277;

11 M.J., Judgements and Decrees, Section 39, 40 and

41.

errr

32a

DISCUSSION

On the 27th day of November, 1962, the county court met

in regular session as shown by the opening order of the

court recorded in Commission Record Book 32. at page

128. The records reveal that during this session, the county

court proposed a resolution and order to create the North

Beckley Public Service District. In the resolution itself, it is

shown as dated on the 13th day of November, 1962. A note

is appended thereunto stating ‘(Order should have been

entered November 13, 1962, is entered now for then)’. This

order of November 27, 1962, is in the nature of a nunc pro

tunc order.

It is not disputed that the office of a nunc pro tunc

judgment or order is to record some act of the court done at

a former time which is not then carried into record. A

retroactive order of this character may be used to make the

record speak that truth, but not to make it speak what had

not been spoken, even though it ought to have been spoken.

In the case at bar the note clearly states that the order

should have been entered on the 13th day of November,

1962. The records of the County Clerk of Raleigh County

show that the order was entered on the 27th day of

November, 1962.

In Baker v. Gaskins, 125 W.Va. 326, 24 S.E(2d) 277, the

Supreme Court of Appeals held:

‘A judgment which, by the order for its entry, is shown to

have been rendered on the date stated therein, cannot by a

subsequent provision in the order, be made to take effect as

of an earlier date.”

The records of the November 13. 1962, session of the

county court are silent and without mention of the North

Beckley Public Service District. However, the indispensible

premise for the entry of a nunc pro tunc order is that the

33a

action of the court be taken at the time to which it relates.

If there must be recorded evidence of the action of the cowrt

at the time to which the order relates.

In Chaney v. State Compensation Commissioner. 1727

W.Va. 521, 33 S.E. (2d) 284, the Court held:

“AS a prerequisite to entry of a mune pre tume order

reasonable notice must be given to a party who may

adversely be affected and order may be made only

upon showing of some entry or memorandum upon the

records of quasi records of the court evidencing its

ior action, and evidence of such action is

inadmissible until entry of memorandem is

In Stannard Supply Company +. Delmar Coal Company.

110 W. Va. 560, 158 S.E. 907, the Court held:

“In this state the rule is that a same pre tume order can

only be made upon the showing of same entry or

memorandum upon the records or quasi records of the

court, and that parol evidence of the rendition of the

judgment and its terms cannot be received, at least

until such entry or memorandum is produced.”

The only evidence of action on the 13th day of Nowemnber,

1962, in record to the North Beckley Public Service Diserict

is the other itself, purporting to be dated on the 1 th day of

November, 1962. That order was not made a part of the

court's records until November 27, 1962. It is wery clear that

the rule in this jurisdiction is that there mest be some

written memorandum entered of record on the date of the

action to justify the entry of a sume pre tame order.

There is yet another reason why the action of the Cownty

Court of Raleigh County in attempting to relate the emery ©

the order back to November 13, 1962, is iewalid. be

accordance with the provision of Article &. Section 24. of

Re

A OE A r= a om

0 ————————SSSSaeaaaaaSSa....QQeaearnE—

34a

the Constitution of the State of West Virginia, county

courts are vested with judicial authority in all matters of

probate, the appointment and qualifications of personal

representatives, guardians, committees, curators, and in

the settlement of their accounts, and in all matters relating

to apprentices. In addition to such judicial powers, the

county courts are vested with the power and authority,

under such regulations as may be prescribed by law, to

supervise and administer the internal police and fiscal

affairs of their counties. In attempting to create the North

Beckley Public Service District, the county court undertook

to exercise, not its judicial powers, but its police powers as

delegated to it by the legislature. Query, as to whether in

the exercise of its non-judicial power, the County Court of

Raleigh County, West Virginia, was vested with the power

and authority to enter a nunc pro tunc order. We think not,

the judgments of the courts clearly indicate that a nunc pro

tunc order is an instrument whereby courts of records may

prevent injustices in the determination of judicial matters.

PROPOSITION

The plaintiff, in its action against the defendants,

employes a department of the state government, the

judiciary, to deny these defendants equal protection of the

laws in violation of their constitution guaranty.

AUTHORITIES

Central Kentucky Natural Gas Company vy. Railroad

Commission of Kentucky, 37 F. (2nd) 938;

16 C.J. 2nd, Section SOS (page 994);

4M.]J., Constitutional Law, Section 126:

State v. Goodwill, 10 $.E. 285

35a

DISCUSSION

It cannot be denied that there are several people residing

in the area described as the North Beckley area that are not

using the sewage facility. The North Beckley Public Service

District in its memorandum to present and prospective

customers, bearing date the 2Sth day of April, 1962,

acknowledged that the burden on the properties or

liabilities of the users would necessarily increase unless all

persons to whom the service has been made available

connect on and pay their share of the cost of construction

and maintenance. By its action against these defendants it

seeks decree of the court, a state agency, imposing a burden

upon the property of these defendants when there are many

other persons of the same burden who are presumable

exempted. It should be borne in mind that there are not

actions to establish a right on the part of the plaintiff, but

to require these defendants to assume a burden and act in

the affirmative subject to the penalties of the court while

others admittedly in the area and identically situated are

not being required, not even asked, to do so. It cannot be

presumed that the exempted persons will voluntarily place

themselves in a position of having to share this enormous

burden.

The Equal Protection Laws of the Fourteenth

Amendment of the Federal Constitution may be violated by

action of the judiciary as well as by the legislative or

executive departments of government. In 4 Michie’s

Jurisprudence, Constitutional Law, Section 126 at (page

218), it is said that:

“It is doubtless true that a state may act through

different agencies, either by its legislative, its

executive, and its judicial authorities; and the

prohibition of the amendment extends to any action of

the state denying equal protection of the laws, whether

it be action by one of these agencies or by another.”

§

:

é

¥

§

LATF

te ak inl 2 Cea a

apace res ee Ms OR BPM EIR TROU POM A RE ALIEN PM ACMI le IGM Cea I LTS NE EE

Pg ae: WE DAE IELS POA US HM a OCA ad RM Bae 6A ANE A i A

36a

In 16 Corpus Juris Secundum, at page 988, in discussing

the equal protection clause of the Constitution, it is written

that:

“This clause is a pledge of equal protection of the laws

or protection of equal laws; and it means, and is a

guaranty, that all persons subjected to state legislation

shall be treated alike under like circumstances and

conditions, both in privileges conferred and liabilities

imposed.” (Emphasis supplied)

The very gist of this action is to impose upon these

defendants liabilities and burdens in connection with the

financing of the facility because of their location within the

district. It is of no consequence that other actions may be

commenced against other parties. If decrees are entered,

these defendants will be burdened while others remain

exempt. The law is so written that a public service district

has the authority to require all persons falling within a

certain classto bear their proportionate share of the burden.

Neither the person nor property of an individual should be

subjected to any liability or burden except by law or rule

which operates equally on all persons in the same situation.

PROPOSITION

The motes and bounds description of the territory

proposed to be included in the North Beckley Public

Service District, as published in the Beckley Post Herald on

November 30, 1962, was not sufficient to identify said

territory to the persons residing in or owning or having an

interest in property in said territory and theretore an

opportunity to be heard for or against the creation of said

public service district was effectively denied to the

interested parties.

DISCUSSION

The court has previously indicated if the motes and

PLETAL PERE ILLS REIL ISLE SEIN LG IME NIE STM TI SEE —

Fie ace,

2

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bounds description of the territory to be included in the

North Beckley Public Service District is legally sufficient to

set out the perimeter of the territory, then such a motes and

bounds description is sufficient to satisfy the requirements

of Chapter 16, Article 13A, Section 38B, of the Code of West

Virginia. It is submitted that this point of view is erroneous

and for the record, these defendants and various

defendants in the suits presently pending wish to file

affidavits executed by property owners within the territory

all to the effect that after reading said description that they

were unable to determine that their property is located

therein.

Section 38B provides: ‘All persons residing in or owning

or having any interest in property in such proposed public

service district shall have an opportunity to be heard for

and against its creation.”’ It is submitted, therefore, that

the meaning of the statute in reference of the sufficiency

of the description and notice of public hearing required to be

advertised is that said description convey to the interested

parties reasonable notice as to the territory to be embraced.

Was the description as advertised reasonably sufficient for

such purpose? It is now known that the territory embraced

by the purported North Beckley Public Service District

includes many communities well known by their

community and area names, such as ‘Sprague’,

Cranberry’, etc. It is not argued here that the motes and

bounds description will suffice to withstand the test of time

in identifying the territory. However, it is argued that in

addition to the legal description, there should have been

designated the names of ithe communities to be embraced

therein. The statute clearly contemplates that the parties be

given an opportunity to be heard. It is submitted that the

notice was not designed in such a way as to do this. Legal

identification of a parcel of property by a motes and bounds

description does not in and of itself relate notice. A motes

38a

and bounds description of ones own residential propert)

could be advertised in a newspaper and without othe:

reference, such as the name of the registered owner, woulc

not serve as adequate notice to the property owner.

These defendants ask only that the court peruse the

description as advertised in this case to determine if said

description gives reasonable notice to the property owners

in the communities within the North Beckley Public Service

District.

PROPOSITION

Presupposing the validity of the creation of the North

Beckley Public Service District, said district, as a public

corporation and a political subdivision of the state, should

not be permitted to maintain suit for equitable injunctive

relief because said district has taken and/or damaged

private property for public use in these premises without

just compensation.

AUTHORITIES

Article III, Section 9, West Virginia Constitution;

Chapter 54, Article I and II, of the Code of West

Virginia, as amended;

Hardy v. Simpson, 113 W. Va. 440, 190 S.E. 680;

Riggs v. State Road Commissioner, 120 W. Va. 298

197 S.E.813;

State v. Graney, 143 W. Va. 610, 103 S.E. (2nd) 878.

DISCUSSION

It has heretofore been argued that the North Beckley

Public Service District was not created in the manner

OPES TEIN

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provided by stature and herefore, has no standing to sue in

this court. If, however, the Court should find that its

creation was validly effected, then, by the terms of the

statutes (1409, 38C), said public service district is a public

corporation and political subdivision of the state. It is a fact

that said public service district did not acquire permission

from these defendants or permission from any of the

defendants in the actions now pending for entry upon or

right-of-way across their properties. It is also a fact that i

said public service did not file condemnation proceedings ;

and did not obtain an order from this court permitting it to

enter upon, take possession, appropriate, and use the real

estate of any of the defendants. This is the procedure

established in such cases by Chapter 54, Article II, Section

14, of the Code of West Virginia. By ignoring this

proceeding, the said public service district, and its

contractor or contractors became trespassers when they

entered upon the property of these defendants.

a ee

SO Eek AN: Mt Soe

It must be remembered that these defendants and the

other defendants in the actions now pending in this court

are not afforded the right to institute an action against the

North Beckley Public Service District for their alleged

grievances. This must be done in condemnation

proceedings. In this connection the syllabus in Hardy v.

Simpson, 118 W. Va. 440 190 S.E. 680, 681, Points 1 and 2,

are as follows:

“1. Section 9, Article 3, of the Constitution, which

provides that ‘Private property shall not be taken or

damaged for public use, without just compensation,’

requires action on the part of the state, its subdivisions

or instrumentalities, to ascertain damages and

compensate owners of property for the taking thereof

or damage thereto, incident to any _ public

improvement for which such property may be

appropriated.”

‘2. Where the construction or improvement of a state

$2 IEEE TEAMS LE CLIMATE LLORAS AE AR IRON IIE OO ER

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highway results in damage to private property short of

the actual taking thereof, it is the duty of the State

Road Commission, under Code, 54-2-14, and within a

reasonable time after the completion of the work out of

which such damage arises, to institute proceedings to

ascertain the damage to which the owner of such

property may be entitled.”’

In Riggs v. State Road Commission, 120 W.Va. 298, 197

S.E. 813, and in State V. Graney, 143 W. Va. ascertaining

and compensating for the damages it has done, and in

violation of the constitutional right of these defendants to

be fairly and justly compensated for the damage, the North

Beckley Public Service District instituted this action as

plaintiff seeking the equitable relief of a mandatory

injunction. It is submitted that before said district should

have obtained equitable relief, it should have been done

equity to these defendants. In equity and good conscience,

the plaintiff should not have been awarded the relief

granted by the triai court.

EXHIBIT A

Board of Commissioners

North Beckley Public Service District

Raleigh County

Skelton, West Virginia

Gentlemen:

For your legally issued, properly executed $930,000

North Beckley Public Service District, West Virginia Sewer

Revenue Bonds, Series of 1964, to finance the construction

of your project as described in your consulting engineer

report dated December 1, 1963, which is made a part

hereof by reference, we will pay the sum of $883,500 plus

accrued interest from the date of the bonds to the date of

delivery.

a ie Soe rth FITTED! as ORS ETS Bs TLE I OR A RII TEIN AE EE TRL EO ES Oy ee a

x 9

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EXHIBIT A LETTER

Oo EPC I UL Bete AI 2 Pa

The customary closing certificates including a non-

litigati certificate.

j Where there can be no litigation it gives the North

Beckley Public Service District a perfectly right to

embezzle, misappropriate and misuse funds. A perfectly

right to envade private property without paying just

compensation to the property owner.

Both the North Beckley Public Service District and its

employees or any agent of the State of West Virginia does

as they please and all the cases that has been filed in the

Circuit Court of Raleigh County, West Virginia. They

would just let them lay on the Court Docket and throw

them out of Court. The taxpayer protective association of

Raleigh County, West Virginia would like to know why

certain classes of people is locked out of court? While other

classes has a free hand at the Court and their cases are

settled according to law and the Constitution of the State of

West Virginia.

It appears to the Taxpayer’s Protective Association of

Raleigh County, West Virginia that Exhibit A give the law

firm of Steptoe and Johnson, Attorneys at Law, Clarksburg,

West Virginia and the Law Firm of Bowers, File, Hodson

and Payne, Beckley, West Virginia. That thesetwo law firms

can take the law into their own hands and say who will be

tried in a Court of law and who won’t be tried. Locking the

citizens of the North Beckley Public Service District out of

Court. Denying them equal protection of the law and deny

them of their Constitution Guarantee of equal protection of

equal law.

PiGrine >»

, SE A oa I pp PLIERS" FEES SEY W BI Sere “sto neces —_——— " ne en —_—

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LIENS

C 16-13A-10

Lien not a deprivation of property without due process.

The provision that delinquent fixed rates and charges for

services rendered by a public service district shall be a lien

on the premises served of equal dignity, rank and priority

with the lien on such premises of state, county, school and

municipal taxes, does not deprive the owners of their

property without due process of law. State ex rel.

McMillion v. Stahl, 141 W. Va. 233, 89 S.E. 2nd 693 (1955S).

It may not deprive the owner of the use of his property.

But even if he is not hooked on the sewer and not using it

and goes to borrow money from a bank or saving and loan

company. They try to blackmail him and make him pay

back sewer bills (which he has not used the sewer) before he

can borrow any money. We would like a answer on this

question?

CONSTITUTIONALITY

1. That the provisions of the statute granting a tax

exemption to the property income and bonds of the Board

is in violation of Section 1, Article 10 of the Constitution of

West Virginia.

2. That the statute improperly delegates legislative

powers to administrative body; in violation of the

Constitution of West Virginia.

3. That the statute providing for liens to enforce the

payment of fees, rates and charges violates the Fourteenth

Amendment to the Constitution of the United States, etc;

4. That the grant of eminent domain violates the

Constitution of this State of West Virginia.

5. That the statute creating a mortgage lien on the

property and authorizing foreclosure creates a debt of

DP RE ERE etpeTy Con

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public service districts without a vote of the people in

violation of the Constitution of this State of West Virginia.

6. That by creating public service districts as public

service corporations for special purposes, violates the

constitution of this State of West Virginia.

Respectively Submitted by

Taxpayers

Protective Association of Raleigh

County, West Virginia

(President) C.M. Elmore

General Delivery

Cranberry, West Virginia 25828

STATE OF WEST VIRGINIA

At a Regular Term of the Supreme Court of Appeals

continued and held at Charleston, Kanawha County, on the

6th day of October, 1975 the following order was made and

entered, to-wit:

State of West Virginia ex rel. Taxpayers

Protective Association of Raleigh County

etc., et al.

vs. Mandamus

The North Beckley Public Service District

On a former day, to-wit, September 22, 1975, came the

petitioner, Taxpayers Protective Association of Raleigh

County, by C. M. Elmore, President, pro se, and presented

to the Court their petition and exhibits, and note of

argument in support thereof, praying for a peremptory writ

of mandamus to be directed against The North Beckley

Public Service District, as therein set forth. And came also

File, Payne, Scherer & Brown and W. H. File, Jr., council

LS TE LETT OMT TE

44a

for the North Beckley Public Service District, in opposition

to granting the writ of mandamus. Upon consideration the

Court is of opinion that a rule should not be awarded and

the prayer of the petition is therefore denied.

A True Copy

Attest: George W. Singleton

IN THE SUPREME COURT OF APPEALS

OF WEST VIRGINIA

Charleston

State of West Virginia ex rel

Taxpayers Protective Association of Raleigh

County, Box 236, Sprague, West Virginia and

All others Similary Situated, C.M. Elmore,

President

Petitioner No.

Section 3 Article 13A Code of West Virginia

The North Beckley Public Service District of Raleigh

County, is from and after this date of the adoption of

the order creating any such public service district it

shall thereafter be a public corporation and _ political

subdivision of the State of West Virginia.

Appeal

NOTICE OF APPEAL TO THE SUPREME COURT

OF THE UNITED STATES

Notice is hereby given that the Taxpayers Protective

PI OR Ee, OF eee ee TE IOS LEIS OME MES POLE REID J EOI DEB LY Tan RN

PIES NPSL ED RE MO ELINA SRL OLE. PORES, Bt BON PELL AEA Pa BISCO. Pond Pitta aL

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45a

Association of Raleigh County, Box 236, Sprague West

Virginia and all Others Similarly Situated, C.M. Elmore,

President, the Petitioner In Mandamus in the above-

captioned proceeding hereby appeals to the Supreme Court

of the United States from the final order of the Supreme

Court of Appeals of the State of West Virginia entered in

this action on September 19, 1975.

C. M. Elmore

President Taxpayers Protective

Association of Raleigh County

Box 236, Sprague, West Virginia

and all others Similarly Situated

AFFIDAVIT OF SERVICE OF NOTICE OF APPEAL

State of West Virginia

County of Raleigh, To-Wit:

The Taxpayers Protective Association of Raleigh

County, Box 236, Sprague, West Virginia and all

Others Similarly Situated C.M. Elmore, President, the

Petitioner

In Mandamus herein, despose and say that on the

3ist day of October 1975, I served a copy of the

foregoing Notice of Appeal to the Supreme Court of

the United States upon the North Beckley Public

Service District, 106 McCreery St. (Raleigh County)

Beckley, West Virginia petitioner In Mandamus, by

delivering the same to Robert R. Thompson, Jr.

(Office) Chairman of the North Beckley Public Service

var | REE ricco remmep cen ODPL ILLICIT ELL LE IOS OLLIE OTE OGY VDL IES WL LMG A ACRE TON ll

46a

District, 106 McCreery St. (Raleigh County) Beckley,

West Virginia

Subscribed and sworn to before me Raleigh County at

Beckley, West Virginia, this 22 day of October, 1975

Sandra Jean Via

Notary Public and for

Raleigh County, West Virginia

My Commission Expires September 29, 1979