Basil R. Legg, Jr.
Stephen R. Brooks
Clarksburg, West Virginia Flaherty, Sensabaugh & Bonasso
Attorney for the Appellant Morgantown, West Virginia
Attorney for the Appellees
JUSTICE DAVIS delivered the Opinion of the Court.
1. 'The appellate standard of review of questions of law answered and
certified by a circuit court is de novo. Syllabus point 1, Gallapoo v. Wal-Mart Stores, Inc.,
197 W. Va. 172, 475 S.E.2d 172 (1996).' Syllabus point 2, Keplinger v. Virginia Electric
& Power Co., 208 W. Va. 11, 537 S.E.2d 632 (2000). Syllabus point 2, Charter
Communications v. Community Antenna Service, Inc., 211 W. Va. 71, 561 S.E.2d 793
(2002).
2. 'Where the language of a statute is free from ambiguity, its plain
meaning is to be accepted and applied without resort to interpretation. Syl. Pt. 2, Crockett
v. Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970).' Syllabus Point 4, Syncor
International Corp. v. Palmer, 208 W. Va. 658, 542 S.E.2d 479 (2001). Syllabus point 4,
Charter Communications v. Community Antenna Service, Inc., 211 W. Va. 71, 561 S.E.2d
793 (2002).
3. Pursuant to W. Va. Code §§ 18-5-13(f)(1) and (2) (2002) (Supp. 2002),
a county board of education may unilaterally establish bus stops within another county to
provide bus transportation to students who have received proper authorization from both
county school boards under W. Va. Code § 18-5-16 (b)(1) (2002) (Supp. 2002) to attend
school in the county providing the bus transportation.
Davis, Justice:
The Circuit Court of Taylor County presents this Court with a certified
question asking whether a county board of education may, without agreement from another
county, establish bus stops within that other county to provide transportation to students
who have received proper authorization to attend school in the county providing the
transportation. We answer this question affirmatively.
Marion County has not violated any statutes or policies
by allowing Taylor County students, who have been granted
board permission to attend Marion County Schools, to ride the
bus on an existing Marion County bus route from Taylor
County into Marion County to attend school.
Voluntary transfers of students from one county to
another within the state of West Virginia are controlled by
W. Va. Code § 18-5-16. The statute does not require that
counties provide transportation to students voluntarily
transferring into or out of the county.
. . . .
A county board of education is not responsible for
transportation costs for students who attend school in a
county other than that of their residence, even though
the county board has approved the attendance in another
county, unless the county board itself has initiated a plan
to have the students attend school in a county other than
their residence. In an instance where the plan has been
initiated by one or more county boards of education, the
sending and receiving counties, where both have agreed
to the transfer, must determine the method of, and
provide coverage for the costs of, transportation to the
other county.
West Virginia Board of Education Policy 7212. The Policy
further states that [c]ounty school buses may provide
transportation to students across county boundaries and may
pick up students in one county for attendance in the schools of
another county. (Emphasis added).
Therefore, based on the applicable law and policy,
Marion County should not be prohibited from choosing to
allow Taylor County students, who have been granted board
permission to attend Marion County Schools pursuant to
W. Va. Code § 18-5-16, to ride a bus on an existing Marion
County bus route from Taylor County into Marion County to
attend school.
Thereafter, on October 23, 2001, the Board of Education for the County of
Taylor (hereinafter referred to as the Taylor County Board) filed a complaint in the
Circuit Court of Taylor County against the Board of Education for the County of Marion
and its Superintendent, Thomas E. Long (hereinafter collectively referred to as the Marion
County Board). The complaint sought preliminary and permanent injunctive relief and a
declaratory judgment against the Marion County Board to prevent that Board from
continuing to provide bus transportation services to students residing in Taylor County but
attending school in Marion County. The Taylor County Board complained that, beginning
with the 2001-2002 school year, the Marion County Board established one or more new
school bus stops within the boundaries of Taylor County for the purpose of transporting
students residing in Taylor County to schools located in Marion County. It is undisputed
that the students being transferred included students who had received authorization from
both County Boards of Education to attend school in Marion County, as well as students
who had not obtained such authorization and were, thus, improperly enrolled in Marion
County Schools.
The Taylor County Board's request for temporary injunctive relief was denied. Thereafter, the parties jointly moved that the legal question presented by this case be certified to this Court. After determining that a certified question was proper, the circuit court formulated the following question:
May the Marion County Board of Education, absent an
agreement with the Taylor County Board of Education,
establish bus stops within Taylor County to provide bus
transportation to Taylor County resident students who have
received authorization from both the Taylor County and
Marion County Boards of Education to attend school in Marion
County?
The circuit court answered this question in the affirmative. Noticeably absent from this
certified question is any reference to Marion County's admitted practice of busing Taylor
County resident students who had not received proper authorization to attend school in
Marion County. The circuit court omitted this class of students from the certified question
as there is no question of law regarding Marion County's authority to transport them.
Indeed, the circuit court explained that Marion County was clearly without authority to bus
students who had not obtained the proper authorization:
Both parties agree there are a number of Taylor County
resident students attending school in Marion County who have
not received transfer authorization from the Taylor County
Board of Education, but who are being transported by bus from
within Taylor county by the Marion County Board of
Education. The plaintiff asserts, the defendant admits, and the
court finds the Marion County Board of Education is without
legal authority to provide bus transportation within Taylor
County to Taylor County resident students who are attending
Marion County schools without authorization from the Taylor
County and Marion County Boards of Education. Accordingly,
the Plaintiff's request to include this issue as part of the
question to be certified is hereby DENIED.
In addition, notwithstanding the circuit court's determination that Marion County did not
have the authority to transport students who were not authorized by both county boards of
education to attend Marion County schools, it refused to amend it's earlier denial of Taylor
County's request for temporary injunction to prohibit Marion County from continuing to
transport those students without proper authorization. In this regard, the circuit court
expressly found that the potential for physical harm or emotional trauma to those children
who would be immediately affected by such a modification of the Court's prior order
outweighs any prejudice to [Taylor County].
This Court accepted the certified question for review by order entered June
25, 2002.
To determine which versions of the relevant statutes should be applied to this
case, we must consider the nature of the action below. The law suit underlying this certified
question seeks an injunction. It has been explained, in general, that:
Based upon the foregoing authority, it is clear that the proper statutes to be
applied in deciding the issue presented in this case, which involves the prospective remedy
of injunction, are the statutes in effect at the time we render our decision. Consequently,
we will apply the 2002 versions of W. Va. Code §§ 18-5-16 and 18-5-13 in reaching our
decision in this matter.
The boards, subject to the provisions of this chapter and
the rules of the state board, have authority:
Syl. pt. 4, Charter Communications v. Community Antenna Serv., Inc., 211 W. Va. 71, 561
S.E.2d 793.
We do note, however, that the Taylor County Board has specifically
complained of the Marion County Board's establishment of new bus routes and bus stops,
particularly those that enter into Taylor County residential subdivisions. Admittedly, the
interpretation letter issued by Dr. Stewart, the State Superintendent of Schools, concluded
that the Marion County Board was not prohibited from transporting students, who of course
had obtained the requisite transfer approval, on an existing Marion County bus route.
(Emphasis added). We are puzzled by Superintendent Stewart's limitation requiring an
existing route. But we recognize that it may be merely a result of the manner in which
the question to him was posed. Nevertheless, his interpretation was rendered prior to the
enactment of the amended 2002 version of W. Va. Code § 18-5-13, and we have herein
concluded that the 2002 version of W. Va. Code § 18-5-13 is unambiguous and not subject
to interpretation. Consequently, though our traditional rule is that
Based upon the forgoing discussion, we hold that, pursuant to W. Va. Code
§§ 18-5-13(f)(1) and (2) (2002) (Supp. 2002), a county board of education may unilaterally
establish bus stops within another county to provide bus transportation to students who have
received proper authorization from both county school boards under W. Va. Code § 18-5-
16 (b)(1) (2002) (Supp. 2002) to attend school in the county providing the bus
transportation.
Finally, we note that during oral argument of the case sub judice, the Taylor
County Board urged that, despite the statutory authority granted to counties to provide
transfer students with adequate transportation across county lines without an agreement between the interested counties,
(See footnote 7) the clause contained in the form used by
both counties to authorize a student transfer from one county to another prohibited
each county from providing transportation to students whose transfers had
been approved. We are not persuaded by this argument. As the Taylor County
Board submits, its REQUEST FOR STUDENT TRANSFER OUT-OF-COUNTY
form includes the statement that The Taylor County Board of Education
will not assume responsibility for transportation and/or any expenses relating
to this transfer. However, this clause has not been violated as Marion
County has voluntarily assumed the task of transporting transfer students
from Taylor County to Marion County Schools, and there has been no allegation
of any attempt to burden Taylor County with any responsibility for transportation
or any costs related to approved transfers. To the extent that the transfer
request form used by the Marion County Board contains a similar clause, the
Taylor County Board is simply without standing to seek its enforcement. Cf
Snyder v. Callaghan, 168 W. Va. 265, 275, 284 S.E.2d 241, 248
(1981) (The question of standing to sue is whether the litigant has
alleged such a personal stake in the outcome of the lawsuit so as to present
the court with a justiciable controversy warranting judicial resolution of
the dispute. . . . In order to have standing to sue, a party must
allege an injury in fact, either economic or otherwise, which is the result
of the
challenged action and show that the interest he seeks to protect by way of the institution of
legal proceedings is arguably within the zone of interests protected by the statute, regulation
or constitutional guarantee which is the basis for the lawsuit. (Internal citations omitted.).
'[t]he appellate standard of review of questions of law
answered and certified by a circuit court is de novo.' Syllabus
point 1, Gallapoo v. Wal-Mart Stores, Inc., 197 W. Va. 172,
475 S.E.2d 172 (1996). Syllabus point 2, Keplinger v.
Virginia Electric & Power Co., 208 W. Va. 11, 537 S.E.2d 632
(2000). Syl. pt. 2, Charter Communications v. Community Antenna Serv., Inc., 211 W. Va. 71, 561
S.E.2d 793 (2002).
Before addressing the specific question certified in this case, we pause to first
discuss the proper statutes to be applied to our resolution of the issue presented. There are
two statutes that were relied upon by the circuit court in reaching its answer to the question
certified: W. Va. Code § 18-5-16 (1949) (Repl. Vol. 1999), and W. Va. Code § 18-5-13
(1997) (Repl. Vol. 1999). Following the circuit court's certification of this matter, and this
Court's acceptance of the certified question for review, amended versions of these two
statutes became effective on July 1, 2002.
Injunctive relief is designed to meet a real threat of a
future wrong or a contemporary wrong of a nature likely to
continue or recur. Whether interlocutory or final, injunctive
relief is ordinarily preventive or protective in character and
restrains actions that have not yet been taken. It is generally
not intended to redress, or punish for, past wrongs. Coercive
in nature, injunctive relief is meant to restrain motion and to
enforce inaction. To obtain injunctive relief based on past
injury, the plaintiff must show a real and immediate threat that
the injury will continue or be repeated. Accordingly, rights
already lost and wrongs already perpetrated cannot be
corrected by injunction.
42 Am. Jur. 2d Injunctions §2, at 553-54 (2000) (footnotes omitted).
(See footnote 3) In
the instant case, the Taylor County Board seeks an injunction to restrain
the future act of continued busing of Taylor County resident students on Marion
County school buses. Whether or not the Marion County Board has the authority
to engage in the challenged busing practices depends upon the above referenced
statutes.
(See footnote 4) The granting of an injunction based
on a statute is to be determined by the statute in force when the relief
is to be awarded. 42 Am. Jur. 2d Injunctions §2, at 555 (footnote
omitted). In other words, when the relief sought in a law suit is injunction,
the general rule against the retroactive application of statutes does
not apply as the application of an intervening statute is not considered retroactive. The
United States Supreme Court, in the course of discussing the presumption against statutory
retroactivity, has explained that
[e]ven absent specific legislative authorization,
application of new statutes passed after the events in suit is
unquestionably proper in many situations. When the
intervening statute authorizes or affects the propriety of
prospective relief, application of the new provision is not
retroactive. Thus, in American Steel Foundries v. Tri-City
Central Trades Council, 257 U.S. 184[, 42 S. Ct. 72, 66
L. Ed. 189] (1921), we held that § 20 of the Clayton Act,
enacted while the case was pending on appeal, governed the
propriety of injunctive relief against labor picketing. In
remanding the suit for application of the intervening statute, we
observed that relief by injunction operates in futuro, and that
the plaintiff had no vested right in the decree entered by the
trial court. 257 U.S., at 201[, 42 S. Ct., at 75-76]. See also,
e.g., Hall v. Beals, 396 U.S. 45, 48[, 90 S. Ct. 200, 201-202, 24
L. Ed. 2d 214] (1969); Duplex Printing Press Co. v. Deering,
254 U.S. 443, 464[, 41 S. Ct. 172, 175, 65 L. Ed. 349] (1921).
Landgraf v. USI Film Prods., 511 U.S. 244, 273-74, 114 S. Ct.
1483, 1501, 128 L. Ed. 2d 229 (1994). See also Nielsen
v. Stepping Stones Assocs., L.P., 930 F. Supp. 910, 911-12 (S.D.N.Y.
1996) (quoting Landgraf and Duplex Printing Press Co. v. Deering,
254 U.S. 443, 464, 41 S. Ct. 172, 175, 65 L. Ed. 349 (1921)); Sears,
Roebuck & Co. v. San Diego County Dist. Council of Carpenters, 25
Cal. 3d 317, 323, 158 Cal. Rptr. 370, 374, 599 P.2d 676, 680 (1979) ('Relief
by injunction operates in futuro, and the right to it must be determined as
of the date of decision by an appellate court.' (quoting American
Fruit Growers v. Parker, 22 Cal. 2d 513, 515, 140 P.2d 23, 24 (1943),
and citing Kash Enters.,
Inc. v. City of Los Angeles 19 Cal.3d 294, 306, 138 Cal. Rptr. 53, 562 P.2d 1302 (1977));
Landolt v. Glendale Shooting Club, Inc., 18 S.W.3d 101, 105 (Mo. Ct. App. 2000) (Clearly,
'a permanent injunction based on a condition subject to change may be vacated or modified
in order to avoid unjust or absurd results when a change occurs in the factual setting or the
law which gave rise to its existence.' . . . Because a permanent injunction acts in futuro and
gives Plaintiff no vested right in the judgment of the trial court, there is no retroactivity bar
to applying a new statute after the initial issuance of an injunction. (citations omitted)).
Having determined that the 2002 versions of the applicable statutes should be
applied to this case, our resolution becomes quite simple as the Legislature has plainly
expressed its intention. Under W. Va. Code § 18-5-16:
(b) Transfers between counties; legislative findings.
(1) Transfers of students from one county to another
may be made by the county board of the county in which the
student desiring to be transferred resides. The transfer shall be
subject to the approval of both the board of the county in which
the student resides and the board to which the student wishes to
be transferred.
This provision corresponds with W. Va. Code § 18-5-13(f)(1), wherein county boards of
education are granted the authority to provide an adequate means of transportation to
students residing in another county when the students have complied with the procedure for
obtaining authorization to attend school outside of their county of residence:
The boards, subject to the provisions of this chapter and
the rules of the state board, have authority:
(f)(1) To provide at public expense adequate means of
transportation, including transportation across county lines for
students whose transfer from one district to another is agreed to
by both boards as reflected in the minutes of their respective
meetings, for all children of school age who live more than two
miles distance from school by the nearest available road; . . . .
Without question, providing an adequate means of transportation necessarily
includes the establishment of bus routes and bus stops.
(See footnote 5) The
question herein certified, however, specifically asks whether a county may
provide adequate transportation across county lines, including establishing
bus stops, without first entering an agreement with the county in which
the students to be transported reside. To answer this question, consideration
must be given to W. Va. Code § 18-5-13(f)(2):
(f)(2) To enter into agreements
with one another as reflected in the minutes of their respective meetings to
provide, on a cooperative basis, adequate means of transportation across county
lines for children of school age subject to the conditions and restrictions
of subdivisions [(f)] and [(h)
(See footnote 6) ] of this section;
Obviously, W. Va. Code § 18-5-13(f)(2) authorizes county boards to enter into agreements
for providing adequate transportation to students across county lines. The Taylor County
Board urges us to go a step farther and read into this statute a mandatory duty upon counties
to enter into an agreement before transportation of transfer students across county lines may
occur. We are unable to adopt the Taylor County Board's interpretation of this statute,
however, as we find nothing in the language of W. Va. Code § 18-5-13(f)(2) even remotely
indicating a mandatory duty upon counties to enter such agreements. Indeed, due to the
plainly expressed language of the foregoing statutes, we are bound to apply their terms
without interpretation.
'Where the language of a statute is free from
ambiguity, its plain meaning is to be accepted and applied
without resort to interpretation.' Syl. Pt. 2, Crockett v.
Andrews, 153 W. Va. 714, 172 S.E.2d 384 (1970). Syllabus
Point 4, Syncor International Corp. v. Palmer, 208 W. Va. 658,
542 S.E.2d 479 (2001).
'[i]nterpretations of statutes by bodies charged with
their administration are given great weight unless clearly
erroneous.' Syl. Pt. 4, Security Nat'l Bank & Trust Co. v. First
W. Va. Bancorp, Inc., [166 W. Va. 775,] 277 S.E.2d 613
(1981). Syl. Pt. 3, Smith v. Board of Educ., 176 W. Va. 65,
341 S.E.2d 685 (1985).
Syl. pt. 1, Smith v. Board of Educ. of County of Greenbrier, 192 W. Va. 321, 452 S.E.2d 412
(1994), this rule simply does not apply in the instant case. We find nothing in the plain
language of W. Va. Code § 18-5-13 limiting a county's exercise of its authority to provide
adequate transportation to the use of only existing bus routes or stops. Where the
legislature has not seen fit to impose such a limitation, it is not for this Court to arbitrarily
create one. Nor do we think such a limitation would be advisable. Indeed, we believe that
it is reasonable to expect that, over time, the location of the homes of students residing in
one county while authorized to attend school in another may change. As these changes
occur, modifications to bus routes and stops may become necessary in order for a county
to exercise it's authority to transport students across county lines in a manner that is safe
for student bus passengers.
CONCLUSION
For the reasons stated in the body of this opinion, we agree with the
conclusions reached by the Circuit Court of Taylor County and answer affirmatively the
question herein certified.
[t]he Board of Education of a school-district is a
corporation created by statute with functions of a public nature
expressly given and no other; and it can exercise no power not
expressly conferred or fairly arising from necessary
implication, and in no other mode than that prescribed or
authorized by the statute. Syl. pt. 4, Shinn v. Board of
Education, 39 W. Va. 497, 20 S.E. 604 (1894).
Syl. pt. 7, City of Huntington v. Bacon, 196 W. Va. 457, 473 S.E.2d 743 (1996).