Clovis D. Kuhn
Huntington, West Virginia
Attorney for the Appellee
Scott A. Damron
Huntington, West Virginia
Attorney for the Appellant
JUSTICE BROTHERTON delivered the Opinion of the Court.
1. "'A municipal corporation has only the powers granted
to it by the legislature, and any such power it possesses must be
expressly granted or necessarily or fairly implied or essential and
indispensable. If any reasonable doubt exists as to whether a
municipal corporation has a power, the power must be denied.'
Syllabus Point 2, State ex rel. Charleston v. Hutchinson, 154 W.Va.
585, 176 S.E.2d 691 (1970)." Syllabus point 1, City of Fairmont v.
Investors Syndicate of America, 712 W.Va. 431, 307 S.E.2d 467
2. The enumeration of powers and authority granted in
W.Va. Code § 8-1-7 (1990) shall not operate to exclude the exercise
of other powers and authority fairly incidental thereto or
reasonably implied and within the purposes of Chapter 8.
3. A charter provision which authorizes a veto by the
mayor of a municipality to an ordinance or resolution of city
council is reasonably implied and fairly incidental to the granted
or enumerated powers within W.Va. Code § 8-1-7 (1990) and the West
This appeal is before the Court on the issue of whether
a municipal charter provision, which provides the mayor with the
power to veto ordinances and resolutions of city council, is a
valid exercise of municipal power under W.Va. Code § 8-1-7 (1990).
On October 23, 1989, a member of the Huntington City
Council introduced a proposed ordinance in council entitled "An
Ordinance Protecting the Proposed East-West Corridor from 17th
Street to 1st Street." The ordinance stated that:
BE IT ORDAINED BY THE COUNCIL OF THE CITY OF HUNTINGTON, CABELL AND WAYNE COUNTIES, WEST VIRGINIA, that the proposed east-west corridor running from 17th Street West to 1st Street, said area being better known as the old B&O Right-of-Way, be protected from further development in order to preserve the intent of the City's comprehensive plan.
The Mayor contends that, contrary to the stated intent of the
proposal, this ordinance was enacted in order to block the
development of a 20-unit apartment complex for the mentally
disabled which was planned to be built on that strip of land.
The Huntington City Council approved the ordinance by a vote of seven to four on November 13, 1989. However, the Mayor vetoed the ordinance pursuant to section 2.7 of the City of
Huntington Charter.See footnote 1 Shortly thereafter, the appellee, a member
of the Charter Board, filed a declaratory judgment action in the
Circuit Court of Cabell County. In his complaint, the appellee
requested "a judgment declaring and adjudicating the rights and
duties of the defendant to veto ordinances legally adopted by
Huntington City Council under the provisions of the Huntington City
Charter and applicable state law."
On February 13, 1990, an attempt by the Council to
override the veto failed because they did not obtain the required
two-thirds majority. On April 23, 1990, the Cabell County Circuit
Court issued an opinion which stated that a mayor may not have the
power to veto in West Virginia. It is from that ruling that the
Mayor filed this petition for appeal.
In 1985, a new charter was adopted by the City of Huntington. Under West Virginia law, a municipality may choose
their government from four separate plans. W.Va. Code § 8-3-2.
The city chose the strong mayor plan, which is defined as:
(1) There shall be a mayor elected by the qualified voters of the city; and a city council elected at large or by wards, or both at large and by wards, by the qualified voters of the city;
(2) The council shall be the governing body;
(3) The mayor shall be the administrative
(4) Other officers and employees shall be
appointed by the mayor or by his order in
accordance with this chapter, but such
appointments by the mayor or by his order may
be made subject to the approval of the
The new charter provided the mayor with the ability to
veto decisions of city council. The veto provision in the new
Charter provides as follows:
Within ninety-six hours after the adjournment of any Council meeting, the City Clerk shall present to the Mayor the record of proceedings of the meeting and all ordinances and resolutions adopted at the meeting. The Mayor, within seven days of receipt by him or her of an ordinance or resolution, shall return it to the City Clerk with his or her approval signature, with his or her written veto, or the Mayor may not act. If the ordinance or resolution is signed by the Mayor, it shall become operative as specified in the ordinance. If the ordinance is disapproved by veto, the Mayor shall attach thereto a written statement explaining the reasons for his or her veto. If the mayor does not act, the ordinance or resolution
shall become operative at noon on the seventh
calendar day after it is received by the
Mayor. Ordinances or resolutions vetoed by
the Mayor shall be presented by the City Clerk
to Council for its consideration at its next
regular meeting and should Council then or
thereafter adopt the ordinance or resolution
by an affirmative vote of at least two-thirds
of all its members, it shall be operative upon
the date specified by Council, but in no event
less than fifteen days after the date of final
passage. If no operative date is so
specified, it shall become operative at noon
on the fifteenth calendar day after the date
of final passage. The Mayor's veto power
shall extend to disapproving or reducing any
individual appropriation item in the budget or
any ordinance or resolution, but shall not
extend or apply to any appropriation or
resolution authorized pursuant to Section 3.16
of the Charter.
The Mayor used the veto provision from its adoption, without
objection, until the handicapped complex was proposed.
The appellee contends that the circuit court was correct
in ruling that veto power is not included in those powers which
were granted by the legislature. He points to our opinion in
Sharon Steel Corp. v. City of Fairmont, ___ W.Va. ___, 334 S.E.2d
616 (1985), in which this Court reiterated that a municipal
corporation has only those powers granted to it by the legislature,
and if any reasonable doubt exists, the power is to be denied. Id.
at 624. However, the appellee's argument ignores the fact that in
Sharon Steel, we overcame the objections to the municipal ordinance
directed at abating a public nuisance by finding the authority to
abate the nuisance within a general statute section permitting
"elimination of hazards to public health and safety." Id. at 624-15. Thus, the municipality had the power to identify the improper
disposal of hazardous waste as a nuisance even though the statute
did not specifically refer to "hazardous wastes." Id. at 625.
The appellant maintains that the "Home Rule Amendment" of
the West Virginia Constitution, Art. VI, sec. 39(a) properly
authorizes the exercise of municipal authority by veto. The
amendment states, in pertinent part, that:
The legislature shall provide by general laws for the incorporation and government of cities, towns and villages and shall classify such municipal corporations, on the basis of population, into not less than two nor more than five classes. Such general laws shall restrict the powers of such cities, towns and villages to borrow money and contract debts, and shall limit the rate of taxes for municipal purposes, in accordance with section one, article ten of the Constitution of the State of West Virginia. Under such general laws, the electors of each municipal corporation, wherein the population exceeds two thousand, shall have power and authority to frame, adopt and amend the charter of such corporation, or to amend an existing charter thereof, and through its legally constituted authority, may pass all laws and ordinances relating to its municipal affairs: Provided, that such charter or amendment thereto, and any such law or ordinance so adopted, shall be invalid and void if inconsistent or in conflict with this Constitution or the general laws of the State then in effect, or thereafter, from time to time enacted.
Besides power to contract debts, borrow money, and set taxes, the
amendment provides that the municipality has the authority to
exercise power unless it is "inconsistent or in conflict with this
Constitution or the general laws of the State . . . ." Id.
West Virginia Code § 8-1-7 (1990) further enumerates the
power granted to municipalities. That section states, in part,
The enumeration of powers and authority granted in this chapter shall not operate to exclude the exercise of other powers and authority fairly incidental thereto or reasonably implied and within the purposes of this chapter; and the provisions of this chapter shall be given full effect without regard to the common-law rule of strict construction, and particularly when the powers and authority are exercised by charter provisions framed and adopted or adopted by revision of a charter as a whole or adopted by charter amendment under the provisions of this chapter.See footnote 2
Thus, a municipality can exercise powers that are reasonably
implied from or fairly incidental to the law and within the
purposes of this chapter. Moreover, W.Va. Code § 8-12-2 provides
municipalities with plenary power and authority if it is not
inconsistent or in conflict with our Constitution or the general
laws of this State:
(a) In accordance with the provisions of the "Municipal Home Rule Amendment" to the Constitution of this State, and in addition to the powers and authority granted by (i) such Constitution, (ii) other provisions of this chapter, (iii) other general law, and (iv) any existing charter, any city shall have plenary power and authority by charter provision not inconsistent or in conflict with such Constitution, other provisions of this chapter or other general law, . . . to provide for the government, regulation and control of the city's municipal affairs . . . .
In syllabus point 1 of City of Fairmont v. Investors Syndicate of America, 712 W.Va. 431, 307 S.E.2d 467 (1983), we held that a "'municipal corporation has only the powers granted to it by the legislature, and any such power it possesses must be expressly granted or necessarily or fairly implied or essential and indispensable. If any reasonable doubt exists as to whether a municipal corporation has a power, the power must be denied.' Syllabus Point 2, State ex rel. Charleston v. Hutchinson, 154 W.Va. 585, 176 S.E.2d 691 (1970)." Similarly, in Marra v. Zink, 163 W.Va. 400, 256 S.E.2d 581 (1979), we found that "[m]unicipalities are creatures of the State who draw their powers from the law which creates them; therefore, if a city charter provision conflicts with
either our constitution or our general laws, the provision, being
the inferior law, must fail." Id. at 584 (citations omitted). See
also State ex rel. City of Charleston v. Hutchinson, 154 W.Va. 585,
176 S.E.2d 691 (1970); Matter of City of Morgantown, 159 W.Va. 788,
226 S.E.2d 900 (1976).
However, in order to defeat the validity of a charter
provision, the challenger must overcome a presumption that
legislative enactments are immune from judicial interference.
A municipal council or other governing body of a municipality, when acting or attempting to act in a legislative capacity, upon a subject within the scope of its powers, is entitled to the same immunity from judicial interference with the exercise of legislative discretion as in the state legislature. See, e.g., Hackney v. City of Guthrie, 171 Okla. 320, 322, 41 P.2d 705, 707 (1935). A court of equity normally may not, therefore, enjoin a municipal legislative body from exercising legislative powers by enacting a municipal ordinance.
Perdue v. Ferguson, ___ W.Va. ___, 350 S.E.2d 555, 559 (1986)
(citations omitted). See also Railway Express Agency v.
Commonwealth of Virginia, 282 U.S. 440, 51 S.Ct. 201, 75 L.Ed. 450
(1931).See footnote 3
In this case, we can find no state law or constitutional
provision violated by the veto provision.See footnote 4 The omission of a
specific provision allowing a veto in the statute or Constitution
does not mean it is forever forbidden. Given that W.Va. Code § 8-1-7 allows the exercise of "other powers and authority fairly
incidental thereto or reasonably implied," some unenumerated powers
must exist. After reviewing the evidence below, we find that the
appellee has failed to prove either that a veto provision in a
municipal charter violated either state law or the Constitution, or
that a reasonable doubt existed as to whether the city had the
power to enact the veto provision. Given that the city approved
the strong mayor system, the appellee failed to overcome the
presumption of immunity from judicial interference which exists in
the favor of municipal legislative enactments.
A charter provision which authorizes a veto by a mayor of
a municipality to an ordinance or resolution of city council is
reasonably implied and fairly incidental to the granted or
enumerated powers within W.Va. Code § 8-1-7 and the West Virginia
Constitution. Therefore, we reverse the April 23, 1990, ruling of
the Circuit Court of Cabell County and hold that the provision of
the charter of the City of Huntington, which provides the mayor
with the power to veto ordinances and resolutions of the city
council, is a valid exercise of municipal authority under W.Va.
Code § 8-1-7 (1990).
Footnote: 1The Mayor states that the "old B&O Right-of-Way" is owned primarily by CSX. He contends that the old proposed street plan had been resurrected only when the Evergreen Project, Inc., had decided to develop a supervised apartment-style housing complex for the severely mentally disabled on that site. Area residents campaigned against the project.
Since the area was zoned R-2, single family, a special exception was required to provide for a multi-family zoning of R-3 or R-4. Counsel for the Board of Zoning Appeals advised that a denial of special exception would possibly violate federal law by discriminating against the handicapped in the area of housing. 42 U.S.C. § 3604(f)(1), 24 C.F.R. 100.50(b)(3) and 24 C.F.R. 100.70(a) and (c) forbid discriminating in housing based upon, among other reasons, handicapped status. Thus, the Board of Zoning Appeals approved the special exception.
Footnote: 2West Virginia Code § 8-11-1 (1990) states that:
To carry into effect the powers and authority
conferred upon any municipality or its
governing body by the provisions of this
chapter or any past or future act of the
Legislature of this state, the governing body
shall have plenary power and authority to
make and pass all needful ordinances, orders,
bylaws, acts, resolutions, rules and
regulations, not contrary to the Constitution
and laws of this state . . . .
Further, W.Va. Code § 8-10-1 (1990) provides that:
When not otherwise provided by charter
provision or general law, the mayor of every
municipality shall be the chief executive
officer of such municipality, shall have the
powers and authority granted in this section,
and shall see that the ordinances, orders,
bylaws, acts, resolutions, rules and
regulations of the governing body thereof are
faithfully executed . . . .
Footnote: 3On March 28, 1985, the State Attorney General certified the Huntington charter as "consistent in all respects with the Constitution and general law of the State of West Virginia."
Footnote: 4Other jurisdictions have held veto provisions valid even when no specific authorization existed in their state statute. See Flanigen v. Preferred Development Corp., 226 Ga. 267, 174 S.E.2d 425 (1970).