Michael L. Scales
Greenberg & Scales
Martinsburg, West Virginia
Attorney for the Appellees
Pamela Jean Games-Neely
Janet L. Scalia
Assistant Prosecuting Attorneys
for Berkeley County
Martinsburg, West Virginia
Attorneys for the Appellants
JUSTICE MILLER delivered the Opinion of the Court.
1. "'The county [commission] is a corporation created
by statute, and possessed only of such powers as are expressly
conferred by the Constitution and legislature, together with such
as are reasonably and necessarily implied in the full and proper
exercise of the powers so expressly given. It can do only such
things as are authorized by law, and in the mode prescribed.'
Point 3, syllabus, Barbor v. County Court of Mercer County, 85 W.
Va. 359 [101 S.E. 721 (1920)]." Syllabus Point 1, State ex rel.
County Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965).
2. A grant of the police power to a local government or
political subdivision necessarily includes the right to carry it
into effect and empowers the governing body to use proper means to
enforce its ordinances. Consequently, the power to punish by a
pecuniary fine or penalty is implied from the delegation by the
legislature of the right to enforce a particular police power
through ordinances or regulations.
3. The legislature has authority to delegate its law-making power to municipal corporations and counties as to matters
of local concern. Such delegation does not violate the separation
of powers doctrine contained in Article V, Section 1 of the West
4. "'This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first
instance.' Syllabus Point 2, Sands v. Security Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958)." Syllabus Point 2, Duquesne Light Co. v. State Tax Department, 174 W. Va. 506, 327 S.E.2d 683 (1984), cert. denied, 471 U.S. 1029, 105 S. Ct. 2040, 85 L. Ed. 2d 322 (1985).
This is an appeal of a final order of the Circuit Court
of Berkeley County which granted the petitioners below a writ of
prohibition to prevent respondent William J. "Bucky" Teach from
obtaining and the respondent magistrates from issuing criminal
warrants to enforce provisions of the Berkeley County Building
Code. The circuit court ruled that because the statutes
authorizing county commissions to adopt building codes did not
expressly authorize the imposition of penalties for violations
thereof, the provisions of the county ordinance imposing such
sanctions were unconstitutional. We disagree, and we reverse the
judgment of the circuit court.
Two statutes are at the heart of this dispute. In 1988, the legislature enacted W. Va. Code, 29-3-5b, which required the state fire commission to promulgate comprehensive rules and regulations, to be known as the "state building code," for the purpose of "safeguard[ing] life and property and . . . ensur[ing] the quality of construction of all structures erected or renovated throughout this State." These regulations were required to address all aspects of building construction, renovation, and operation. W. Va. Code, 29-3-5b, provided that the state building code shall be effective in those counties and municipalities which adopt it, but allowed for more stringent ordinances or regulations. The
statute placed the responsibility for enforcement of the state
building code on the adopting local jurisdictions. The current
statute is virtually identical.See footnote 1
At the same time, the legislature enacted W. Va. Code, 7-1-3n (1988), which voided all existing county building codes one year after the promulgation of the state building code and required a county commission, if it desired thereafter to enact a building code, to adopt the rules and regulations promulgated by the state fire commission under W. Va. Code, 29-3-5b.See footnote 2
In response to the legislative mandate of W. Va. Code,
29-3-5b, the state fire commission adopted as part of the state
building code the standards set out in the 1990 Building Officials
& Code Administrators National Building Code (BOCA).See footnote 3 See 7 W. Va.
C.S.R. § 87-4-4.1 (1991). The BOCA standards provide for penalties
for violations in the form of fines and/or imprisonment. The state
building code leaves the determination of the appropriate penalty
to the discretion of the local government. In particular, the
state building code provides that the BOCA standards providing for
a penalty of imprisonment for a violation of the rules are
"optional with each adopting local jurisdiction." 7 W. Va. C.S.R.
§ 87-4-5.4. The state fire commission's rules also authorize local
governments to adopt or reject certain discretionary provisions of
the BOCA standards as a way of adapting them to local conditions.
7 W. Va. C.S.R. § 87-4-5.3.
On January 31, 1991, the Berkeley County Commission
adopted a county building code based on the state fire commission's
regulations. The ordinance designated violations of the building
code as misdemeanors, punishable by fines of up to $500.
In May of 1991, Mr. Teach, Berkeley County's building
code enforcement officer, issued notices of building code
violations to the petitioners, State Line Sparkler of WV, Ltd.
(SLS), a West Virginia corporation, and its principals, R. Robert
Kirk and Jerry G. Kirk. Mr. Teach also posted a stop-work notice,
requiring construction, alterations, or repairs to cease at the SLS
premises in Berkeley County. Mr. Teach subsequently filed criminal
complaints in magistrate court charging the Kirks with continuing
to operate their business without the required permits after the
posting of the stop-work notice. As a result, the Kirks and
several SLS employees were arrested.
On June 6, 1991, the petitioners filed with the Circuit
Court of Berkeley County a petition for a writ of prohibition
seeking to prevent the respondents from obtaining, issuing, or
enforcing any warrants against them for alleged violations of the
county building code. The petition alleged that the provisions of
the building code did not pertain to the activities taking place on
the SLS premises and that the language of the ordinance was
A hearing was conducted on the petition for a writ of prohibition on June 19, 1991. At that time, the circuit court announced its conclusion that the county ordinance adopting the building code was unconstitutional insofar as it permitted imposition of penalties for a violation thereof. The court
concluded that because such penalties were not expressly authorized
by W. Va. Code, 29-3-5b (1990), and 7-1-3n, provision therefor in
the county ordinance exceeded the legislative delegation of
authority. A nunc pro tunc order reflecting these conclusions was
entered on October 12, 1991.
The general rule with regard to the powers of county governments is set forth in Syllabus Point 1 of State ex rel. County Court v. Arthur, 150 W. Va. 293, 145 S.E.2d 34 (1965):
"'The county [commission] is a corporation created by statute, and possessed only of such powers as are expressly conferred by the Constitution and legislature, together with such as are reasonably and necessarily implied in the full and proper exercise of the powers so expressly given. It can do only such things as are authorized by law, and in the mode prescribed.' Point 3, syllabus, Barbor v. County Court of Mercer County, 85 W. Va. 359 [101 S.E. 721 (1920)]."
See also Berkeley County Comm'n v. Shiley, 170 W. Va. 684, 295
S.E.2d 924 (1982). It is undisputed that neither W. Va. Code, 29-3-5b nor W. Va. Code, 7-1-3n expressly authorizes a county
commission adopting the state building code to enact penalties for
violations thereof. Nor are we directed to any general grant of
power to impose penalties for the violation of county ordinances,
such as that conferred upon municipalities.See footnote 4
It appears, however, that such power may arise by implication. The general rule is that a grant of the police power to a local government or political subdivision necessarily includes the right to carry it into effect and empowers the governing body to use proper means to enforce its ordinances. See generally 5 McQuillan Municipal Corporations § 17.04 (3d ed. 1989); 56 Am. Jur. 2d Municipal Corporations, Counties and Other Political Subdivisions § 414 (1971). Pursuant to this rule, it has been held that even in the absence of an express grant of authority, the power to punish by a pecuniary fine or penalty is implied from the delegation by the legislature of the right to enforce a particular police power through ordinances or regulations.See footnote 5 See, e.g., Dunn v. Mayor & Council of Wilmington, 59 Del. 287, 219 A.2d 153 (1966); Metropolitan Sanitary Dist. v. On-Cor Frozen Foods, Inc., 36 Ill. App. 3d 239, 343 N.E.2d 577 (1976); City of Louisville v. Fischer Packing Co., 520 S.W.2d 744 (Ky. 1975); City of Detroit v. Fort Wayne & B.I. Ry. Co., 95 Mich. 456, 54 N.W. 958 (1893); State v. Grimes, 49 Minn. 443, 52 N.W. 42 (1892); Bellerive Inv. Co. v. Kansas City, 321 Mo. 969, 13 S.W.2d 628 (1929); State v. Iams, 78
Neb. 768, 111 N.W. 604 (1907); Sitterle v. Victoria Cold Storage
Co., 33 S.W.2d 546 (Tex. Civ. App. 1930).
Of particular interest is City of Louisville v. Fischer
Packing Co., supra, where the court considered a city ordinance
which provided that any person who failed to file an occupational
license tax return would be assessed a penalty of up to 25 percent
of the unpaid license fee. The legislation authorizing cities to
issue such licenses provided no penalty for failure to file a
return. It did, however, provide that licenses issued pursuant to
the statute would be "issued and enforced on terms and conditions
as prescribed by ordinance." 520 S.W.2d at 745. Recognizing, as
we do, that counties and municipalities "possess only those powers
which have been granted to them expressly plus those powers
necessarily implied or incident thereto as to enable them to carry
out the expressed powers," the Kentucky court held that the
"having expressly authorized the levy and the collection of the occupational license and having provided that they shall be issued and enforced as prescribed by ordinance, authorize by implication the power to require the filing of a return and the enforcement of that requirement by means of a penalty as a necessary incident to the exercise of the expressed grant." 520 S.W.2d at 746. (Citations omitted).
The enabling legislation here contains similar provisions. W. Va. Code, 29-3-5b(d), provides: "Enforcement of the provisions of the state building code is the responsibility of
the respective local jurisdiction." By authorizing county
commissions to exercise the police power with regard to the safety
and quality of building construction, maintenance, and operation,
and by placing the responsibility for enforcement on the adopting
local government, the legislature has, by implication, granted
counties the power to enforce violations of building code
ordinances by imposing a fine. We conclude, therefore, that the
power to impose pecuniary penalties for violations of the county
building code was within the legislature's delegation of authority
to the county commission.
The circuit court concluded, and the petitioners argue on appeal, however, that the delegation of legislative authority was itself invalid. In this regard, the petitioners rely on State v. Grinstead, 157 W. Va. 1001, 206 S.E.2d 912 (1974).
In Grinstead, the Court considered a challenge to a criminal statute proscribing the possession or sale of dangerous drugs on the ground that the legislature had unlawfully delegated its law-making authority to the West Virginia Board of Pharmacy. The statute in question authorized the Board to expand a list of proscribed drugs by adding substances which (1) contained or were derived from barbituric acid or amphetamines, (2) were determined by the Board, after investigation, to be habit-forming because of their stimulant effect on the central nervous system, or (3) were
designated as dangerous or habit-forming by existing or future
federal drug regulations. The defendant in Grinstead was convicted
of possession and delivery of lysergic acid diethylamide (LSD)
after that drug was added to the federal list.
This Court in Grinstead was concerned with whether the
legislature's delegation of authority violated Article VI, Section
1 of our State Constitution, which reposes the law-making authority
in the legislature.See footnote 6 We noted that under this provision, a statute
"may be invalid as incomplete if it is left to a body other than
the Legislature to determine without benefit of legislative
standards what shall and shall not be an infringement of the law."
157 W. Va. at 1010, 206 S.E.2d at 918. We determined that the
Board's power to expand the list of proscribed drugs under the
first two categories was accompanied by sufficient legislative
standards to constitute a valid delegation of legislative
authority. Moreover, we stated that the legislature could adopt
and incorporate by reference existing model legislation or the
enactments of other bodies declaring conduct unlawful.
Our ultimate conclusion, however, was that the legislature could not empower the Board to engraft future declarations of unlawful conduct by other bodies onto the present statute: "[W]hen a legislative body delegates its legislative
powers so loosely as to permit another legislative body or an
executive board or agency to redefine and expand the criminal acts
in futuro and without limitation, such attempt at delegation is
constitutionally invalid." 157 W. Va. at 1011, 206 S.E.2d at 919.
We reasoned that under Article VI, Section 1 and Article V, Section
1, relating to separation of powers,See footnote 7 "enactment of criminal
statutes is solely a legislative function. . . . The authority to
enact laws, being exclusively a legislative function, cannot be
transferred or abdicated to others." 157 W. Va. at 1013, 206
S.E.2d at 920. (Citations omitted). We found the statute to be
unconstitutional insofar as it granted the Board of Pharmacy the
power to declare conduct unlawful based on future federal
pronouncementsSee footnote 8 and reversed the defendant's conviction.
The petitioners argue that the principles enunciated in Grinstead precluded the legislature from delegating to county commissions the power to penalize violations of county building codes. What this argument ignores is the fact that in Grinstead, the legislature attempted to delegate its law-making function to an administrative body, an agency of the executive branch of government. In such cases, the constitutional provisions relating to separation of powers and reposing the law-making function in the legislature prevent delegation except where the legislation is complete and sets forth adequate standards to guide the agency in the exercise of such power. See, e.g., State ex rel. Barker v. Manchin, 167 W. Va. 155, 279 S.E.2d 622 (1981); Quesenberry v. Estep, 142 W. Va. 426, 95 S.E.2d 832 (1957); State v. Grinstead, supra; Rhinehart v. Woodford Flying Serv., 122 W. Va. 392, 9 S.E.2d 521 (1940).
Here, however, the delegation was made to the county commission, a political subdivision of the State. In such circumstances, the general rule restricting delegation of legislative authority has no application. See generally 16 Am. Jur. 2d Constitutional Law § 350 (1979). We have repeatedly recognized the legislature's authority to delegate its law-making power to municipal corporations and counties as to matters of local concern. See, e.g., State ex rel. City of Charleston v. Bosely, 165 W. Va. 332, 268 S.E.2d 590 (1980); State ex rel. City of Charleston v. Coghill, 156 W. Va. 877, 207 S.E.2d 113 (1973); State
ex rel. City of Charleston v. Sims, 132 W. Va. 826, 54 S.E.2d 729
(1949); Brackman's, Inc. v. City of Huntington, 126 W. Va. 21, 27
S.E.2d 71 (1943); Haigh v. Bell, 41 W. Va. 19, 23 S.E. 666 (1895).
The Constitution itself recognizes the legislature's right to
delegate to county governments by stating in Article IX, Section 11
that county commissions "may exercise such other powers, and
perform such other duties, not of a judicial nature, as may be
prescribed by law." Such delegation does not violate the
separation of powers doctrine contained in Article V, Section 1 of
the West Virginia Constitution.
Here, no other infirmity in the legislative grant of
authority is alleged. The legislature itself had the authority to
exercise the powers it delegated to the county commission. There
is no allegation that the penalty imposed under the county
ordinance is in conflict with any other legislative enactment. We
therefore find no reason for holding the ordinance unconstitutional
as the result of an invalid delegation of state authority, and we
reverse the judgment of the circuit court.
We note in closing that the parties below raised several issues with regard to the certainty of the language of the ordinance and its application to the particular facts in this case. Resolution of those issues was avoided by the circuit court's ruling on the constitutionality of the ordinance. We do not
address these issues based on our familiar rule expressed in
Syllabus Point 2 of Duquesne Light Co. v. State Tax Department, 174
W. Va. 506, 327 S.E.2d 683 (1984), cert. denied, 471 U.S. 1029, 105
S. Ct. 2040, 85 L. Ed. 2d 322 (1985):
"'This Court will not pass on a nonjurisdictional question which has not been decided by the trial court in the first instance.' Syllabus Point 2, Sands v. Security Trust Co., 143 W. Va. 522, 102 S.E.2d 733 (1958)."
For the reasons stated herein, the judgment of the
Circuit Court of Berkeley County is reversed, and the case is
remanded for such further proceedings as may be necessary.
Reversed and remanded.
Footnote: 1The relevant portions of W. Va. Code, 29-3-5b (1990), are:
"(a) The state fire commission
shall promulgate and repeal rules and
regulations to safeguard life and property
and to ensure the quality of construction of
all structures erected or renovated
throughout this state pursuant to the
provisions of chapter twenty-nine-a [§ 29A-1-1 et seq.] of this code through the adoption
of a state building code. Such rules,
regulations, amendments or repeals thereof
shall be in accordance with standard safe
practices so embodied in widely recognized
standards of good practice for building
construction and all aspects related thereto
and shall have force and effect in those
counties and municipalities adopting the
state building code.
* * *
"(c) For the purpose of this
section the term 'building code' is intended
to include all aspects of safe building
construction and mechanical operations and
all safety aspects related thereto. . . .
"(d) Enforcement of the provisions
of the state building code is the
responsibility of the respective local
jurisdiction. Also, any county or
municipality may enter into an agreement with
any other county or municipality to provide
inspection and enforcement services.
"(e) After the state fire
commission has promulgated rules and
regulations as provided herein, each county
or municipality intending to adopt the state
building code shall notify the state fire
commission of its intent."
Footnote: 2W. Va. Code, 7-1-3n, provides, in pertinent part:
"(a) In addition to all other
powers and duties now conferred by law upon
county commissions, county commissions are
hereby authorized and empowered, by order
duly entered of record, to adopt building and
housing codes establishing and regulating
minimum building and housing standards for
the purpose of improving the health, safety
and well-being of its citizens. . . .
"(b) Notwithstanding the provisions
of subsection (a), all existing county
building codes are void one year after the
promulgation of a state building code by the
state fire commission as provided in section
five-b [§ 29-3-5b], article three, chapter
twenty-nine of this code.
"Upon the voidance of the county's
existing building code, if the county
commission votes to adopt a building code, it
must be the state building code promulgated
pursuant to section five-b, article three,
chapter twenty-nine of this code.
"(c) In addition to all other
powers and duties now conferred by law upon
county commissions, county commissions are
hereby authorized and empowered, by order
duly entered of record, to adopt such state
building code upon promulgation by the state
fire commission. . . ."
Similar power is granted to municipalities under W. Va. Code, 8-12-13 (1988).
Footnote: 3The state fire commission initially adopted the 1987 BOCA standards. These provisions were in effect from April 28, 1989, until June 28, 1990, when they were replaced by emergency rules which incorporated the 1990 revisions to the BOCA standards. Those revisions became part of a permanent rule, now in effect, on April 3, 1991.
Footnote: 4W. Va. Code, 8-11-1 (1990), gives municipal corporations plenary power to enact ordinances "and, for a violation thereof, to prescribe reasonable penalties in the form
of fines, forfeitures and imprisonment in the county jail or the place of imprisonment in such municipality, if there be one, for a term not exceeding thirty days." See also W. Va. Code, 8-12-2(a)(11) (1969), 8-12-5 (1989).
Footnote: 5The rule may be otherwise where the ordinance is not enacted pursuant to a grant of police power. See City of Detroit v. Fort Wayne & B.I. Ry. Co., 95 Mich. 456, 54 N.W. 958 (1893). See generally 62 C.J.S. Municipal Corporations § 179 (1949).
Footnote: 6Article VI, Section 1 of the West Virginia Constitution provides, in pertinent part: "The legislative power shall be vested in a senate and house of delegates."
Footnote: 7Article V, Section 1 of the West Virginia Constitution provides:
"The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except the justices of the peace shall be eligible to the legislature."
Footnote: 8In West Virginia Manufacturers Association v. State, 714 F.2d 308 (4th Cir. 1983), the Court of Appeals held that the principal concern of the Grinstead court, i.e., that the statute allowed the Board to proscribe certain conduct as unlawful without the prior approval of the legislature, has been addressed by revisions to the state Administrative Procedures Act requiring such regulations to be approved by the entire legislature. See W. Va. Code, 29A-1-1, et seq.; 29A-3-11 (1986); 29A-3-12 (1986). We have not yet passed on the constitutionality of this procedure, and we decline to do so here. See Chico Dairy Co. v. West Virginia Human Rights Comm'n, 181 W. Va. 238, 382 S.E.2d 75 (1989); West Virginia Chiropractic Soc'y, Inc. v. Merritt, 178 W. Va. 173, 358 S.E.2d 432 (1987).