When the federal government conveys 32 acres to the Raleigh County Emergency Service Authority, does the Authority actually have legal power to own that real estate?

Plain-English summary

In the early 2010s, the federal government conveyed 32 acres of "Agricultural Department Property" to the Raleigh County Emergency Service Authority. The County Attorney expressed doubt: did the Authority, created by a 1982 special legislative act (House Bill 2018, Ch. 135, Acts of the Legislature, 1982), even have the power to own real estate? The Authority already owned and had improved other real property; the question went to the basic legal foundation of all those holdings. The county prosecutor asked the AG.

The AG said yes, with a function-tied limit.

Source 1: the special law itself. Section 2 of H.B. 2018 grants the Authority "all the powers necessary, convenient and advisable for the proper operation, equipment and management of emergency operations in Raleigh County." That is an expansive grant, not a specific list. The plain-meaning canon (Shaffer v. Fort Henry Surgical Assocs.) gives "necessary, convenient and advisable" their ordinary breadth. Owning a garage to house emergency-operation equipment fits naturally; owning an apartment building in Kanawha County for private rentals does not.

Source 2: the general emergency-services statute. § 15-5-2(a) defines "emergency services" expansively to include "all emergency functions" and "all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions." The Legislature labeled the function list "without limitation," making it non-exhaustive (Davis Mem'l Hosp. (2008): "includes" with "but not limited to" is "a word of enlargement"). H.B. 2018 expressly incorporates "the powers and . . . duties which are conferred and imposed . . . by article five, chapter fifteen of the code of West Virginia," so the general grant flows to the Authority.

Why the absence of express real-estate authority does not matter. Under Manchin v. Dunfee, "the express mention of one thing implies the exclusion of another." But that canon applies when the Legislature provides a specific list. Here, both sources are broad non-exclusive grants, so the canon does not exclude implied powers. Rogers v. City of South Charleston (1979): public corporations have "such powers and authority as are expressly given by the Legislature or as fairly arise by necessary implication from the express statutory grant or as are requisite to enable the corporation to carry out the function."

§ 15-5-13 (federal grants) does not constrain real-estate authority. That provision requires "consultation and . . . coordination" with the Secretary of Military Affairs and Public Safety when "the federal government . . . shall offer to any authority, corporation, partnership or other entity . . . equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services." It mentions "equipment, supplies, materials or funds", not land or real property. The opinion reads it as inapplicable to the Agricultural Department Property conveyance.

The unanswered question. The AG was not asked, and did not opine, whether the specific Agricultural Department Property qualified for ownership under either source. That answer would depend on the actual purpose for which the 32 acres were being held, facts the prosecutor's letter did not provide. The Authority should be ready to articulate a legitimate emergency-operations purpose for any property it holds.

Currency note

This opinion was issued in 2015. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

H.B. 2018 was a special law, not codified, so any updates would have come through later special legislation. W. Va. Code § 15-5-2 has been amended in subsequent legislative sessions. Anyone working a current question about an emergency services authority's real-estate authority should review current general law, the underlying special law, and any later amendments.

Common questions

Q: What is a special law?
A: One enacted for a "particular person[] or thing[]" or for "a portion of a class instead of all the class" (Appalachian Power v. Gainer (1965)). It contrasts with a general law that applies across the board. West Virginia has hundreds of such laws (Kanawha Cnty. Pub. Library (1958)). H.B. 2018 created the Raleigh County Emergency Service Authority as one such public corporation.

Q: Where do you find a special law if it is not in the Code?
A: In the Acts of the Legislature for the relevant session, in this case, Chapter 135 of the 1982 volume. Special laws are publicly accessible but harder to find than codified statutes.

Q: Does the Authority have to justify every parcel of real property it owns?
A: Effectively yes. The AG framed the rule as: ownership "in each instance serves a statutory function assigned to the Authority by the Legislature." So any property holding should map back to "the proper operation, equipment and management of emergency operations in Raleigh County" or to a § 15-5-2(a) emergency function.

Q: What kinds of holdings would clearly satisfy the test?
A: An equipment garage, an emergency operations center, a training facility, a radio communications site, a staging area for disaster response, an evacuation shelter site. The opinion lists "garage for the purpose of housing equipment" as an example.

Q: What kinds of holdings would clearly fail?
A: Investment property, residential rentals unrelated to emergency operations, property held for speculation. The opinion's "apartment building in Kanawha County" example illustrates.

Q: What about land received as a gift, like the Agricultural Department Property?
A: The source of the property does not change the analysis. Whether received by gift, purchase, or transfer, the Authority must hold it for an emergency-operations function. If a particular gift cannot be put to such use, the Authority should not accept it (or should plan to dispose of it consistent with its statutory authority).

Q: Does the federal-grants statute (§ 15-5-13) require pre-approval before the Authority accepts federal property?
A: Per the AG, no, because § 15-5-13 covers "equipment, supplies, materials or funds" and does not mention land or real property. The Authority can accept real-property conveyances from the federal government without the Secretary of Military Affairs coordination § 15-5-13 requires for other gifts.

Background and statutory framework

The special law. Ch. 135, Acts of the Legislature, 1982, at 774-776 (H.B. 2018). Section 2 grants two broad powers: "all the powers necessary, convenient and advisable for the proper operation, equipment and management of emergency operations in Raleigh County" and "the powers and . . . duties which are conferred and imposed . . . upon local organizations for emergency services by article five, chapter fifteen of the code of West Virginia." Section 3 adds: the Authority "may contract and be contracted with, sue and be sued, plead and be impleaded, and shall have and use a common seal."

The general emergency-services definition. W. Va. Code § 15-5-2(a): "Emergency services" means "the preparation for and the carrying out of all emergency functions, [which] include, without limitation, fire-fighting services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions."

Federal grants statute. W. Va. Code § 15-5-13 (consultation/coordination requirement when federal government offers "equipment, supplies, materials or funds").

Powers of public corporations. Rogers v. City of S. Charleston, 163 W. Va. 285 (1979) (express, necessarily implied, or requisite to enable function). Shaffer v. Fort Henry Surgical Assocs., 215 W. Va. 453 (2004) (plain-meaning rule for statutes). Davis Mem'l Hosp. v. W. Va. State Tax Comm'r, 222 W. Va. 677 (2008) ("includes" and "without limitation" are words of enlargement).

Special vs. general laws. Hanks (1973); Appalachian Power v. Gainer (1965); Groves v. Cnty. Court of Grant Cnty. (1896); Kanawha Cnty. Pub. Library (1958).

Express-mention canon limited to specific lists. Manchin v. Dunfee, 174 W. Va. 532 (1984): "the express mention of one thing implies the exclusion of another", inapplicable when the grant is broad and non-exclusive.

Citations

• W. Va. Code §§ 5-3-2; 15-5-2(a); 15-5-13
• Ch. 135, Acts of the Legislature, 1982 (H.B. 2018)
• State ex rel. Taxpayers Protective Ass'n of Raleigh Cnty. v. Hanks, 157 W. Va. 350 (1973)
• State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740 (1965)
• Groves v. Cnty. Court of Grant Cnty., 42 W. Va. 587 (1896)
• Kanawha Cnty. Pub. Library v. Cnty. Court of Kanawha Cnty., 143 W. Va. 385 (1958)
• Rogers v. City of S. Charleston, 163 W. Va. 285 (1979)
• Shaffer v. Fort Henry Surgical Assocs., Inc., 215 W. Va. 453 (2004)
• Davis Mem'l Hosp. v. W. Va. State Tax Comm'r, 222 W. Va. 677 (2008)
• Manchin v. Dunfee, 174 W. Va. 532 (1984)

Source

• Landing page: https://ago.wv.gov/media/17951/download?inline
• Original PDF: https://ago.wv.gov/media/17951/download?inline

Original opinion text

State of West Virginia
Office of the Attorney General
Patrick Morrisey
Attorney General

(304) 558-2021
Fax (304) 558-0140

May 13, 2015
Honorable Kristen Keller
Raleigh County Prosecuting Attorney
112 North Herber Street
Beckley, WV 25801

Dear Prosecutor Keller:

You have asked for an Opinion of the Attorney General regarding whether the Raleigh County Emergency Service Authority may own real property. This Opinion is being issued pursuant to West Virginia Code § 5-3-2, which provides that the Attorney General "may consult with and advise the several prosecuting attorneys in matters relating to the official duties of their office." To the extent this Opinion relies on facts, it is based solely on the factual assertions set forth in your correspondence with the Office of the Attorney General.

According to your letter and attached documents, questions arose regarding the power of the Raleigh County Emergency Service Authority (the "Authority") to own real estate when the Federal Government conveyed to the Authority 32 acres of real property commonly known as the "Agricultural Department Property." Specifically, the Raleigh County Attorney sent you a letter raising a question about the Agricultural Department Property and the Authority's power to accept the conveyance. The Raleigh County Attorney asserts that the Authority was established by "House Bill 2018" in 1982, and expresses uncertainty regarding the Authority's powers under House Bill 2018. You observe in your letter that you share the County Attorney's concerns and that the Authority currently owns other real property that it has substantially improved.

Your letter raises the following legal question:

May the Raleigh County Emergency Service Authority own real property?

We conclude that the Authority may own real property, provided that the ownership serves a legislatively-prescribed function of the Authority. In general, two independently sufficient sources of law provide the Authority with the power to own real property. First, the Authority's power to own real property is reasonably implied by the statutory grant of authority from the Legislature in the special law created by House Bill 2018. See Ch. 135, Acts of the Legislature, 1982, at 775 ("The [A]uthority shall have all the powers necessary, convenient and advisable for the proper operation, equipment and management of emergency operations in Raleigh County."). Second, the general grant of power under West Virginia Code § 15-5-2 to local organizations for emergency services, such as the Authority, also reasonably includes the implied power to own real estate as an "activit[y] necessary or incidental to the preparation for and carrying out of [its] functions." W. Va. Code § 15-5-2(a). After setting forth some necessary background, we explain these conclusions in more detail below.

The Authority is a public corporation established by a special act of the West Virginia Legislature. See Ch. 135, Acts of the Legislature, 1982, at 774-776. Unlike a general law, see Syl. Pt. 2, State ex rel. Taxpayers Protective Ass'n of Raleigh Cnty. v. Hanks, 157 W. Va. 350, 350, 201 S.E.2d 304, 305 (1973), a special law is "one which relates to particular persons or things, or to particular persons or things of a class, or which operates on or over a portion of a class instead of all the class," State ex rel. Appalachian Power Co. v. Gainer, 149 W. Va. 740, 758, 143 S.E.2d 351, 363 (1965) (quotations omitted). See also Groves v. Cnty. Court of Grant Cnty., 42 W. Va. 587, 26 S.E. 460, 463 (1896) ("Special laws are those made for individual cases, or for less than a class requiring laws appropriate to its peculiar condition and circumstances; local laws are laws special as to place."). "[T]he Legislature of this State has enacted into law hundreds of local and special acts." Kanawha Cnty. Pub. Library v. Cnty. Court of Kanawha Cnty., 143 W. Va. 385, 391, 102 S.E.2d 712, 716 (1958).

The bill giving rise to the special act that created the Authority, House Bill 2018, was passed on March 11, 1982, and subsequently signed by the Governor. See Ch. 135, Acts of the Legislature, 1982, at 774. The special law was not enacted into the West Virginia Code and is publicly available in Chapter 135 of the 1982 volume of Acts of the Legislature. See id. Although the special act is now a statute and no longer in the form of a bill, we refer to the special act as "H.B. 2018" consistent with your usage and as is apparently customary in Raleigh County.

To determine the powers of the Authority, we must look to H.B. 2018. As a creation of statute, a public corporation such as the Authority possesses only the express or reasonably implied authority granted to it by the Legislature. See Rogers v. City of S. Charleston, 163 W. Va. 285, 290, 256 S.E.2d 557, 561 (1979) ("It is well settled that a public corporation created by statute is vested only with such powers and authority as are expressly given by the Legislature or as fairly arise by necessary implication from the express statutory grant or as are requisite to enable the corporation to carry out the function."). Pertinent here, Section 2 of H.B. 2018 provides two broad grants of power:

The authority [1] shall have all the powers necessary, convenient and advisable for the proper operation, equipment and management of emergency operations in Raleigh County; and [2] except as otherwise especially provided in this act, shall have the powers and be subject to the duties which are conferred and imposed, respectively, upon local organizations for emergency services by article five, chapter fifteen of the code of West Virginia, . . . and by other provisions of general law relating to emergency services.

Ch. 135, Acts of the Legislature, 1982, at 775. Section 3 of H.B. 2018 further provides that as a corporation, the Authority "may contract and be contracted with, sue and be sued, plead and be impleaded, and shall have and use a common seal." Id. at 775-76.

We find in H.B. 2018 two independently sufficient bases for the Authority to own real property. First, H.B. 2018 specifically grants the Authority "all the powers necessary, convenient and advisable for the proper operation, equipment and management of emergency operations in Raleigh County," which seems broad enough to permit the ownership of real property in at least some circumstances. Id. at 775. As the West Virginia Supreme Court of Appeals has instructed, "[i]n the absence of any specific indication to the contrary," we must give "words used in a statute . . . their common, ordinary and accepted meaning." Syl. Pt. 5, in part, Shaffer v. Fort Henry Surgical Assocs., Inc., 215 W. Va. 453, 599 S.E.2d 876 (2004) (quotations and citations omitted). Here, the phrase "all the powers necessary, convenient and advisable" is an expansive grant of authority by its plain terms, limited only by the three broad statutory functions of the Authority: "the proper operation, equipment and management of emergency operations in Raleigh County." Ch. 135, Acts of the Legislature, 1982, at 775 (emphases added). We read this to mean that the Authority has the power, for example, to own a garage for the purpose of housing "equipment" used in "emergency operations in Raleigh County." Id. But it could not own an apartment building in Kanawha County for leasing to private individuals for private residential purposes, for instance, because that purpose does not serve the "proper operation, equipment and management of emergency operations in Raleigh County." Id.

Second, we believe the powers granted to emergency services authorities generally under Chapter 15 of the West Virginia Code, and incorporated expressly into H.B. 2018, also include the power to own real estate in some circumstances. See Ch. 135, Acts of the Legislature, 1982, at 774 (establishing the Authority as "an emergency service authority . . . in accordance with [Article 5, Chapter 15 of the West Virginia Code]"). West Virginia Code § 15-5-2(a) defines the functions and authority of organizations like the Authority, as follows:

"Emergency services" means the preparation for and the carrying out of all emergency functions, . . . [which] include, without limitation, fire-fighting services, police services, medical and health services, communications, radiological, chemical and other special weapons defense, evacuation of persons from stricken areas, emergency welfare services, emergency transportation, existing or properly assigned functions of plant protection, temporary restoration of public utility services and other functions related to the health, safety and welfare of the citizens of this state, together with all other activities necessary or incidental to the preparation for and carrying out of the foregoing functions.

Id. § 15-5-2(a) (emphasis added). Similar to the first grant of power in H.B. 2018, the Authority's power under Section 15-5-2(a) is quite broad. It has the authority to undertake "all other activities necessary or incidental to the preparation for and carrying out of the . . . functions" listed in that section, a list that the Legislature specifically indicated is "without limitation" and therefore non-exhaustive. Id.; see Davis Mem'l Hosp. v. W. Va. State Tax Comm'r, 222 W. Va. 677, 684, 671 S.E.2d 682, 689 (2008) ("[T]he term 'includes' in a statute is to be dealt with as a word of enlargement and this is especially so where . . . such word is followed by 'but not limited to' the illustrations given" (quotations omitted)). We believe that the power to own real property could, under the appropriate circumstances, be "necessary or incidental to preparing for and carrying out" "emergency functions." W. Va. Code § 15-5-2(a).

Although neither statute expressly grants the power to own real estate to the Authority, we do not believe this is meaningful because the Authority was not granted a specific list of powers that omitted the power to own real estate. Where the Legislature sets forth a specific list of powers, the failure to include the power to own real estate would be significant because, under settled principles of statutory construction, "the express mention of one thing implies the exclusion of another." Syl. Pt. 3, Manchin v. Dunfee, 174 W. Va. 532, 327 S.E.2d 710 (1984). But here, the bases for the Authority's powers are broad non-exclusive grants to which that principle of statutory construction does not apply.

We also do not believe that West Virginia Code § 15-5-13, which relates to certain gifts or grants from the federal government, affects the Authority's power to own real property. Section 15-5-13 requires "consultation and . . . coordination" with the Secretary of Military Affairs and Public Safety any time "the federal government or any agency or officer thereof shall offer to any authority, corporation, partnership or other entity, public or private or the state . . . equipment, supplies, materials or funds by way of gift, grant or loan, for purposes relating to homeland security or emergency services." Id. § 15-5-13. We do not find this provision to be relevant because it specifically identifies "equipment, supplies, materials or funds" but does not mention grants of land or real property.

In sum, we conclude that the Raleigh County Emergency Service Authority has authority to own real property under H.B. 2018 and the statutory provisions incorporated therein, provided that the ownership in each instance serves a statutory function assigned to the Authority by the Legislature. You did not ask, and we do not address, whether the Authority has the power to own the Agricultural Department Property. In any event, your letter and the attached documents do not set forth sufficient facts describing the purpose for which that property is being held.

Sincerely,

Patrick Morrisey
Attorney General

Elbert Lin
Solicitor General

J. Zak Ritchie
Assistant Attorney General