Thomas R. Michael
Michael & Kupec
Clarksburg, West Virginia
Attorney for the Appellants

Michael D. Thompson
Prosecuting Attorney for Jefferson County
Charles Town, West Virginia
Attorney for the Appellee

Grant Crandall
Fairfax, Virginia
Attorney for Amici Curiae,
United Mine Workers of America

Jack C. McClung
Charleston, West Virginia
Attorney for Amicus Curiae,
West Virginia Association of Counties

Robert D. Williams
Assistant Attorney General
Charleston, West Virginia
Attorney for Amicus Curiae,
West Virginia Courthouse Facilities Improvement Authority

The Opinion of the Court was delivered PER CURIAM.

JUSTICE McGRAW concurs and reserves the right to file a concurring opinion.

    1. “This Court reviews the circuit court's final order and ultimate disposition under an abuse of discretion standard. We review challenges to findings of fact under a clearly erroneous standard; conclusions of law are reviewed de novo.” Syl. Pt. 4, Burgess v. Porterfield, 196 W.Va. 178, 469 S.E.2d 114 (1996).

    2. “Generally, findings of fact are reviewed for clear error and conclusions of law are reviewed de novo. However, ostensible findings of fact, which entail the application of law or constitute legal judgments which transcend ordinary factual determinations, must be reviewed de novo. The sufficiency of the information presented at trial to support a finding that a constitutional predicate has been satisfied presents a question of law.” Syl. Pt. 1, State ex rel. Cooper v. Caperton, 196 W.Va. 208, 470 S.E.2d 162 (1996).

    3. “A statute that diminishes substantive rights or augments substantive liabilities should not be applied retroactively to events completed before the effective date of the statute (or the date of enactment if no separate effective date is stated) unless the statute provides explicitly for retroactive application.” Syl. Pt. 2, Public Citizen, Inc. v. First Nat'l Bank in Fairmont, 198 W.Va. 329, 480 S.E.2d 538 (1996).

    4. “'Whether a special act or a general law is proper, is generally a question for legislative determination; and the court will not hold a special act void, as contravening sec. 39, Art. VI. of the State Constitution, unless it clearly appears that a general law would have accomplished the legislative purpose as well.' Point 8 Syllabus, Woodall v. Darst, 71 W.Va. 350 [77 S.E. 264, 80 S.E. 367].” Syl. Pt. 1, Hedrick v. County Court of Raleigh County, 153 W. Va. 660, 172 S.E.2d 312 (1970).

    5. “In due recognition of fundamental principles relating to the separation of powers among the legislative, executive and judicial branches of government, courts recognize the power of the legislature to make reasonable classifications for legislative purposes. Courts are bound by a presumption that legislative classifications are reasonable, proper and based on a sound exercise of the legislative prerogative. If a statute enacted by the legislature applies throughout the state and to all persons, entities or things within a class, and if such classification is not arbitrary or unreasonable, the statute must be regarded as general rather than special. In making classifications for legislative purposes, a wide range of discretion must be conceded by the courts to the legislature. In any case of doubt, courts must favor a construction of a statute which will result in its being regarded as general rather than special. A statute must be regarded as general rather than special when it operates uniformly on all persons, entities or things of a class. A law which operates uniformly upon all persons, entities or things as a class is a general law; while a law which operates differently as to particular persons, entities or things within a class is a special law.” Syl. Pt. 7, State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 143 S.E.2d 351 (1965).

    6. “'A statute is general when it operates uniformly on all persons and things of a class and such classification is natural, reasonable and appropriate to the purpose sought to be accomplished.' Syl. Pt. 2, State ex rel. Taxpayers Protective Association of Raleigh County v. Hanks, 157 W.Va. 350, 201 S.E.2d 304 (1973).” Syl. Pt. 5, Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983).

    7. “The constitutional requirement that a law be general does not imply that it must be uniform in its operation and effect in the full sense of its terms. If a law operates alike on all persons and property similarly situated, it is not subject to the objection of special legislation or class legislation and does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.” Syl. Pt. 7, State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965).

    8. “The well settled general rule is that in cases of doubt the intent of the Legislature not to exceed its constitutional powers is to be presumed and the courts are required to favor the construction which would consider a statute to be a general law.” Syl. Pt. 8, State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965).

Per Curiam:

    This is an appeal by Carol Gallant and Jim Whipple (hereinafter “Appellants”) from an order of the Circuit Court of Jefferson County dissolving a temporary injunction which had previously issued prohibiting the demolition of the Jefferson County Jail and dismissing their case with prejudice. Upon thorough evaluation of the record and the arguments of counsel, we reverse the decision of the lower court.

    On January 17, 2001, the lower court issued a temporary injunction enjoining the Commission from demolishing the jail, reasoning that the statutory review must be undertaken since the Commission is a political subdivision of the State and funds used from the county's general revenue fund to demolish the county jail would constitute state funds for purposes of the statute since the county's general revenue fund would contain State funds that were deposited under state tax statutes.

    On April 14, 2001, the West Virginia Legislature amended the statute to add the following language to West Virginia Code § 29-1-8(d): “Provided, That solely for the purposes of this section, funded, in whole or in part, by the state shall not include funding from any county's general revenue fund regardless of whether or not state funds are commingled with the county's general revenue fund[.]” The amendment was made effective from passage.   (See footnote 3) 

    Based upon the alteration in the statute, the Commission filed a May 9, 2001, motion to dissolve the temporary injunction, arguing that the amendment exempted all county funds from the review requirements. The Appellants objected, arguing that the amendment could not be retroactively applied to a case pending in circuit court and that the amendment constituted “special legislation” prohibited by West Virginia Constitution Article IV, section nine because it exempted only counties from its requirements.

    On June 11, 2001, the lower court granted the Commission's motion and dissolved the injunction, reasoning that the amendment clarified that the review procedures did not apply to the Commission in this matter. The lower court also held that the amendment was not illegal special legislation because it applied to all counties equally.

    By order dated July 5, 2001, this Court stayed the lower court's order dissolving the temporary injunction pending decision on appeal. The appeal was granted on January 23, 2002. The Appellants contend that the amendment cannot be applied retroactively and that the amendment also constitutes illegal special legislation. The Commission has also asserted a cross-assignment of error alleging that the lower court erroneously concluded that the monies to be utilized in the demolition were state funds.   (See footnote 4) 

    This Court resolved a comparable dilemma in Public Citizen and explained that “[w]hen a pending case implicates a state statute enacted after the events that form the basis of the suit, 'the court's first task is to determine whether [the West Virginia Legislature] has expressly prescribed the statute's proper reach.'” 198 W. Va. at 334, 480 S.E.2d at 543, quoting Landgraf v. USI Film Products, 511 U.S. 244, 280 (1994) (holding that 1991 amendment to Civil Rights Act, creating right to recover damages, did not apply to case pending when amendment was enacted). In Public Citizen, this Court utilized a two-pronged analysis and determined that an amendment to the Uniform Commercial Code statute regarding payment of instruments with joint payees could not be applied retroactively. First, the Court asserted that a determination must be made regarding whether the new provision would, “if applied in a pending case, attach a new legal consequence to a completed event.” 198 W. Va. at 335, 480 S.E.2d at 544. Second, such new provision would not be applied “unless the Legislature has made clear its intention that it shall apply.” Id., 480 S.E.2d at 544. This Court explained that such examination requires deliberation of “a principle deeply rooted in our jurisprudence that absent some clear signal from the Legislature, a statute will not apply retroactively.” Id., 480 S.E.2d at 544. We further explained: “In unbroken precedent, this Court has stated '[a] statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute.'” Id., 480 S.E.2d at 544, quoting Syl. Pt. 3, Shanholtz v. Monongahela Power Co., 165 W. Va. 305, 270 S.E.2d 178 (1980) (holding that prohibition of discrimination statute applied prospectively only).   (See footnote 5) 

    Application of the statutory amendment to the present case will undeniably “attach a new legal consequence to a completed event,” to the extent that it will eliminate the historic review process to which this demolition determination would otherwise have been entitled. 198 W. Va. at 335, 480 S.E.2d at 544. The decision to demolish the jail was made prior to the amendment of the statute. Thus, at the time of that pivotal decision, the prior version of the statute applied. Retroactive application of the amended version of the statute would entirely abrogate the Division of Culture and History review process. Thus, based upon the unique facts of this matter and the absence of any indication by the West Virginia Legislature that the amendment should operate retroactively,   (See footnote 6)  this Court concludes that retroactive application is improper under the clearly articulated standards of Public Citizen and its progeny. As this Court stated in Public Citizen, “[b]ecause the amendments, if given retroactive effect, would attach a new legal consequence to the transaction that occurred before the amendments came into existence, this legislative silence, coupled with the presumption against retroactivity, leads us to hold that the new amendments do not apply to this case.” 198 W. Va. at 335, 480 S.E.2d at 544.

    Our review of the applicable precedents, however, persuades us that the constitutional prohibition against special legislation does not preclude the legislature from enacting legislation designed to affect specific classes of political subdivisions, where, as here, each entity within that particular class of political subdivision is dealt with equally. In the first instance, the question of whether a special or general act is appropriate is for legislative determination. Hedrick v. County Court of Raleigh County, 153 W. Va. 660, 172 S.E.2d 312 (1970) (holding that statute creating public library to be supported by county court and county board of education did not violate constitutional provisions regarding special legislation). In syllabus point one of Hedrick, this Court explained:

        “Whether a special act or a general law is proper, is generally a question for legislative determination; and the court will not hold a special act void, as contravening sec. 39, Art. VI. of the State Constitution, unless it clearly appears that a general law would have accomplished the legislative purpose as well.” Point 8 Syllabus, Woodall v. Darst, 71 W.Va. 350 [77 S.E. 264, 80 S.E. 367].

This Court also explained in Hedrick that such “legislature prerogative . . . has been consistently recognized and safeguarded by this Court.” 153 W. Va. at 668, 172 S.E.2d at 316.   (See footnote 7) 

    The Hedrick Court observed that “[i]t is also difficult to formulate a general rule in this area by which the courts of this state must be guided, because of the varying factual situations involved in cases of this character presented for decision from time to time.” 153 W. Va. at 669, 172 S.E.2d at 317. The “nearest possible approach to a general rule” was stated to be that “in a great measure, a proper decision in any case of this character depends upon the peculiar facts and the nature of the act involved in the case.” Id. at 669-70, 172 S.E.2d at 317.

    In State ex rel. County Court of Marion County v. Demus, 148 W. Va. 398, 135 S.E.2d 352 (1964), this Court resolved that the determination is to be left to the legislature unless the Legislature's alleged disregard of the section is “clear and palpable.” 148 W. Va. at 402, 135 S.E.2d at 356, citing Brozka v. County Court of Brooke County, 111 W.Va. 191, 160 S.E. 914 (1931). In syllabus point seven of Appalachian Power Co. v. Gainer, 149 W.Va. 740, 143 S.E.2d 351 (1965), this Court explained:

        In due recognition of fundamental principles relating to the separation of powers among the legislative, executive and judicial branches of government, courts recognize the power of the legislature to make reasonable classifications for legislative purposes. Courts are bound by a presumption that legislative classifications are reasonable, proper and based on a sound exercise of the legislative prerogative. If a statute enacted by the legislature applies throughout the state and to all persons, entities or things within a class, and if such classification is not arbitrary or unreasonable, the statute must be regarded as general rather than special. In making classifications for legislative purposes, a wide range of discretion must be conceded by the courts to the legislature. In any case of doubt, courts must favor a construction of a statute which will result in its being regarded as general rather than special. A statute must be regarded as general rather than special when it operates uniformly on all persons, entities or things of a class. A law which operates uniformly upon all persons, entities or things as a class is a general law; while a law which operates differently as to particular persons, entities or things within a class is a special law.

This Court has also explained that the question may be phrased in terms of whether the classification is reasonably related to the purpose of the legislation. In syllabus point five of Atchinson v. Erwin, 172 W.Va. 8, 302 S.E.2d 78 (1983), this Court explained:

        “A statute is general when it operates uniformly on all persons and things of a class and such classification is natural, reasonable and appropriate to the purpose sought to be accomplished.” Syllabus Point 2, State ex rel. Taxpayers Protective Association of Raleigh County v. Hanks, 157 W.Va. 350, 201 S.E.2d 304 (1973).

In syllabus point seven of State ex rel. Heck's, Inc. v. Gates, 149 W.Va. 421, 141 S.E.2d 369 (1965), this Court resolved:

        The constitutional requirement that a law be general does not imply that it must be uniform in its operation and effect in the full sense of its terms. If a law operates alike on all persons and property similarly situated, it is not subject to the objection of special legislation or class legislation and does not violate the Equal Protection Clause of the Fourteenth Amendment to the Constitution of the United States.

    This Court's evaluation of the legislative action under scrutiny must also be guided by the general rule that doubt concerning constitutionality of legislative enactments should be resolved in favor of legitimacy. Construction as a general law is favored, and the Legislature's determination will be accepted where the class is rational and not arbitrary or unreasonable. This rule is stated in syllabus point eight of Gates, as follows: “The well settled general rule is that in cases of doubt the intent of the Legislature not to exceed its constitutional powers is to be presumed and the courts are required to favor the construction which would consider a statute to be a general law.” 149 W.Va. at 423, 141 S.E.2d at 373.

    With regard to the specific classification chosen by the Legislature in this case -- that of counties -- to the exclusion of other subdivisions, we note that history sanctions such a classification, especially by two readily apparent means. First, our state constitution addresses counties in its Article IX as one distinctly separate class of political subdivision. Likewise, the constitution addresses municipalities as a distinctly separate class in Article VI, § 39(a), in a substantially different manner. Second, in forming the overall statutory scheme for the governance of the various political subdivision of the state, the Legislature has consistently addressed counties as a separate and distinct class,   (See footnote 8)  municipalities as another separate and distinct class,   (See footnote 9)  and other political subdivisions in separately defined distinct classes.   (See footnote 10)  The Legislature has provided separate sets of powers, limitations and responsibilities for each of the various classes of political subdivisions, in accordance with the constitutional scheme and the Legislature's judgment of what is appropriate for each such class. While judicial review of those judgments is clearly available where arbitrary and capricious choices are alleged, it is readily apparent that an absolute minefield would be created in both the Legislature and the courts were it to be determined that the mere fact that the Legislature applied a given statute to counties without also making it applicable to municipalities or other subdivisions violated the proscription against special legislation, per se. We decline that invitation. In the absence of a showing that the exclusion of other political subdivision from the operation of the statute at issue constitutes a “clear and palpable” disregard for the proscription against special legislation, the Legislature's choice is presumptively appropriate. See Demus, 148 W. Va. at 402, 135 S.E.2d at 356. In this case there simply is no showing that the Legislature's choice was arbitrary or capricious. On the contrary, the choice, in keeping with the history of legislation relating to political subdivisions, addresses a long-recognized separate class, a palpably rational class, long the subject of legislation separate and apart from other political subdivisions. We agree with the Legislature's determination that the statute at issue is a general one, not prohibited by Article VI, § 39 of the Constitution.