dissenting:
I cannot concur in all of the conclusions reached by the majority in this case, nor with the result following therefrom. Therefore, this note of dissent is filed to certain holdings and to the result.
The question of whether the State Office Building Commission is immune from suit under Section 35 of Article VI of the Constitution is a debatable one. That section provides that: “The State of West Virginia shall never be made defendant in any court of law or equity * * Even if the building commission is immune from suit, it: does not operate to prevent the prosecution of the suit as against the members of the commission or the other-defendants named in the bill. As an abstract proposition of law, I agree with the statement made in Point 2 of the Syllabus to the effect that public buildings of the State-are not subject to the zoning ordinance or the building: code adopted by a municipality, unless made so by an act: of the Legislature. I insist, however, that the Legislature-has full power and authority to delegate to municipalities: the power to make its ordinances apply to public buildings. I thoroughly agree with Point 3 of the Syllabus. As: to Point 4 of the Syllabus, I do not think the highly technical rule laid down therein has any application to' this case. In my view of the case, the State Office Building Commission is limited in its powers, cannot proceed! beyond that limitation, and if the act under which it was-created is not intended to apply to public buildings, there could have been no purpose in its enactment.
*680I do not question the ultimate and absolute power of the State, as a sovereign, to erect buildings or other improvements which are to be devoted, in their entirety, to governmental purposes; and, in my opinion, all delegation of power to municipalities to adopt and enforce zoning ordinances and building codes should, unless otherwise provided, be interpreted as not intended to be applied to the State, where the exercise of its power to construct buildings and other structures for public use is involved. It seems to me to be unreasonable to assume that the State, through its Legislature, has ever intended to grant or delegate to one of its creatures the power and authority to override its sovereign prerogative and make unavailable for its governmental purposes such parts of its domain as are necessary, therefor, subject, of course, to the right of private owners to compensation for any property taken. Therefore, I do not disagree with the holdings of the majority on that point. However, for reasons which I shall attempt to state, I do not believe that the State Office Building Commission has been empowered by the State, through its Legisuature, to locate and erect the proposed office building without the approval and consent of the governing authorities of the City of Charleston. In my opinion, the State has voluntarily placed this limitation on its sovereign powers by which its agency is bound, until such time as the State may elect to resume its full powers.
The power of the sovereign in respect to zoning and building codes is exercised by the use of what is termed the police power of the State. It is one of the principal attributes of sovereignty, and is exercised and applied by the legislative department of the State. Its uses are manifold and escape definite limitation. It may be said that all matters affecting the lives, property, health, comfort, morals, peace and quietude of the people of the State are comprised within the meaning of the police power of the State, and, undoubtedly, the proper zoning of congested areas and centers of population, illustrated by our towns and cities, for business, manufacturing and *681residential purposes, and the regulation of the 'building methods employed therein, come within such power.
While this power rests in the State as a sovereign, it may not be granted or delegated in any form in perpetuity, and beyond recall. It does not follow that it may not be delegated to various agencies of government, including municipalities, under such restrictions as circumstances suggest. As to the zoning and building codes of our towns and cities, it may be said that the power to define and enforce regulations in respect thereto is, in this State, almost, if not entirely, delegated to the governing bodies of its respective municipalities. The reasons for this policy are apparent. Each community presents its particular problem, and no law which attempted to provide uniform regulations throughout the State would meet the needs of the various centers of population, usually organized into municipal corporations. Thus it is that to the municipalities of the State, whether organized under special charter, or under general law, there is delegated, in slightly varying forms, the power to adopt reasonable zoning ordinances, and what is termed building codes. The regulations imposed thereby are considered necessary to provide proper sanitation, light and air, and equally guard against the hazards of fire and flimsy and improper construction in general. In the larger towns and cities the traffic problem has become an important consideration.
The City of Charleston, one of the oldest municipalities of the State, operates under a special charter enacted by the Legislature. The charter of said city, as amended and reenacted in 1927, appears to deal with the problem of construction and zoning. As to these problems, the city also operates, to the extent applicable, under the provisions of Chapter 8, Article 5 of the Code, and under Sections 19 and 24, Article 4, of Chapter 56, Acts of the Legislature, 1937, now incorporated in 1949 Michie’s Code, 8-4-19 and 24, providing for municipal home rule.
Sections 102, 102-a, 102-b, 102-c and 102-d of the 1927 Charter, Chapter 8, Acts of the Legislature, 1927, broadly *682delegate to the City of Charleston powers in respect to zoning and the construction of buildings within the city. Space does not permit, nor is it necessary to go into detail as to these delegations of power. Suffice to say that they cover the subject in detail and in a comprehensive manner.
Section 102 was later amended in a manner not important in this controversy. As so amended, the charter provisions, aforesaid, still remain in force, and, as I understand, are not in any way limited by the general statutes enacted subsequent thereto, as an examination of Code, 8-5, and Chapter 56, Acts of the Legislature, 1937, implementing the Municipal Home Rule Amendment to the Constitution of the State, 'will attest. If these later statutes are to be given any effect, they tend to broaden, not limit, the powers delegated to the types of municipalities covered thereby.
Acting under the delegated powers aforesaid, the City of Charleston, on March 9, 1936, adopted a comprehensive building code ordinance, and on July 10, 1939, a building zone ordinance, which, together, cover all phases of zoning and building in said city. It is unnecessary to here deal with the intricate details of these ordinances. Suffice to say that what the State Office Building Commission proposes to do admittedly violates such ordinances in more than one particular.
Prior to the enactment of the 1927 charter, aforesaid, the State of West Virginia selected a plot of land on the north bank of the Great Kanawha River, between Duffy Street and California Avenue, in said city, and extending from the river north to Washington Street, as the location for its new Capitol building, and such building was; thereafter erected on that location. Streets and alleys, running through said location were discontinued, ancL appropriated by the State. An eminent architect, Cass Gilbert, was employed to plan and supervise the erection of such building, and, in connection therewith there was prepared by Gilbert a plan for the future expansion, of the Capitol area which, by said plan, was to extend *683northward between Duffy Street and California Avenue from Washington Street to the hill beyond the tracks of the New York Central Railroad Company, within which area it was planned to erect additional buildings to meet the future needs of the State, the area being sufficient for that purpose, and such buildings to be erected in keeping with the general plan, and to harmonize with the Capitol structure and with each other. The so-called “Gilbert Plan” has met with general acceptance, and, by common knowledge, a large office building is now being erected by the State, by direct legislative authority, on the area aforesaid, and in keeping with the “Gilbert Plan”. However, it is not contended by anyone that the said plan has been legally adopted by the State or legally recognized by the city, and it is here referred to only for the purpose of indicating what the Legislature must have had in mind when the statute creating the State Office Building Commission was enacted by it in the year 1939, long after the plan was set up, which was while the Capitol was being constructed from the years 1923 to 1931.
In this situation, the Legislature, apparently sensing the need of additional office space for the use of State departments and agencies, and desiring to provide for such needs without placing an additional burden on State revenues, conceived the idea of creating a State Office Building Commission as an agency of the State, with power to erect buildings on land owned by the State, and to issue and sell revenue bonds to be liquidated over a term of years by applying the net rentals to be derived from the buildings to be erected under such authorization. At its regular session, 1939, it enacted into law House Bill ,No. 414, Chapter 43 of the Acts of said session, by which, after creating said commission and declaring it to be an agency of the State, it conferred on the said commission certain powers including the following:
“To construct a building or buildings on real property, which it may acquire, or which may be owned by the state of West Virginia, in the city of Charleston, as convenient as may be to the capitol building, together with incidental ap*684proaches, structures and facilities, subject to such consent and approval of the city of Charleston in any case as may be necessary; * *
Section 7 of the Act, relating to the issuance of revenue bonds was amended by Chapter 18, Acts of the Legislature, 1945, but such amendment has no bearing on the controversy now before the Court.
The crucial question before the Court, as I view the whole case, is the construction to be given to Subsection 9 of Section 3 of the Acts of 1939, and particularly the words “subject to áuch consent and approval of the city of Charleston in any case as may be necessary”. In my opinion, while it was not necessary for the State to legislate such restriction, it had the power to do so, particularly when such restriction applies to a power and authority granted to one of its agencies. It may, if it so desires, limit the power and authority of its agencies without surrendering any part of its ultimate or reserve authority. This, in my judgement, is what the Legislature intended in this instance, and my reasons for such opinion may be stated as follows:
I do not doubt that those who framed, and the Legislature which enacted, the 1939 Act were familiar with the following: (1) The nature and extent of the police power of the State under which the zoning of towns and cities for business, residences, and manufacturing purposes, and the construction of buildings, could be regulated; (2) that by reason of difficulties of applying a general law to such regulation to the varying needs of the towns and cities of the State, such regulatory powers were, in most instances, if not all, delegated by the State to municipalities, by special acts or general law; (3) that prior to the 1939' Act, here involved, such powers were vested in the City of Charleston, and had been partially exercised, and would be exercised in the future to the extent that the growth of the city might demand; (4) that the Legislature recognized that the City of Charleston had a vital interest, no less than the State, in the development of the areas surrounding the State *685Capitol, and that sound public policy required that such development be proceeded with in a spirit of mutual recognition of the interests of each; and (5) that the Legislature having voluntarily, and in the public interest, delegated to the City of Charleston the power to zone the city and to adopt a building code, did not intend that the State should be the first to arbritrarily violate the ordinances which such delegation of power clearly authorized the city to adopt.
In view of these considerations, it is my opinion that what the Legislature intended was to recognize the interest of the City of Charleston in the location and type of construction of any building erected under the terms of the 1939 Act. As indicated above, the power of the State in such matters being supreme, the Legislature was not required to make this concession to the city, but it had the power to do so without surrendering its power to withdraw such concession as the same might affect future construction under the Act. The Legislature had the clear right to place a limitation on the power of the State Office Building Commission, and did so in clear language. The plain meaning of Section 3 of the Acts of 1939, reached by the slight transposition of language, is this:
“Subject to the consent of the city of Charleston in any case as may be necessary the commission shall have power to construct a building or buildings on real property which it may acquire, or which may be owned by the state of West Virginia, in the city of Charleston, as convenient as may be to the capitol building, together with incidental appropriate structures and facilities.”
I am, therefore, of the opinion that the State Office Building Commission is without authority to proceed in the proposed construction of an office building under the 1939 Act without the consent and approval of the City of Charleston, so far only as the same applies to zoning and building code requirements. The bill of the plaintiff alleges that the consent and approval of the City of Charleston to the proposed location, and construction is being *686withheld because the same violates both the zoning and building code ordinances, legally adopted under legislative authority, and on demurrer this allegation must be accepted as true. It is' also alleged in the bill that both the city and the State have heretofore objected to the use, by private enterprise, o.f the lot now proposed as the location of the proposed office building, as a site for the location of a business building. In other words, the State is now proposing to erect a building of the same general type as both the State and the city objected to, and, we may assume, prevented the erection of the same since the 1939 statute was enacted. Perhaps this is not important. It may be that the ancient doctrine that the sovereign “can do no wrong”, long since an outcast in our governmental philosophy, should be revived and applied to this case, and that the plain words of the statute should be twisted and misinterpreted to uphold the authority of a State agency to carry out a project which it refused to permit a private enterprise to undertake. I am forced to the belief that the State, through its Legislature, may do these things, but I contend that it has not done so; but if it had done so, in clear terms, I would, in all the circumstances of the case before us, condemn it as an abuse of power. In our scheme of things it is necessary that ultimate power must rest somewhere; but wisdom and fair dealing should govern its use.
It is suggested that the words “as may be necessary” applied to the words “consent and approval”, as used in Subsection 9 of Section 3, of the Acts of 1939, destroy or make ineffective any limitation of the commission’s power, which but for them might exist. If the limitation of the commission’s power created by requiring it to obtain the “consent and approval” before exercising the authority to locate and construct buildings be ignored, then, as a matter of logic, if the State has absolute power, not limited by its delegation of power to the city to adopt zoning and building code ordinances, to locate and construct such structures as it may desire, if proposed to be used for State purposes, no “consent and approval” from the city would *687be necessary. But this is not such a case. Here the Legislature is making á grant or delegation of a part of its police power, in connection with a matter in which the interests of the City of Charleston are involved, and as to which, in a general way, the Legislature had authorized the city to exercise control. In all reasons, considering all the preceding circumstances, the words “as may be necessary” must have been used to give force to the authority already granted to the City of Charleston in the matter of zoning and construction. If they were not intended to have that meaning, then they have absolutely no meaning. It should not be assumed that the Legislature used language without intending it to have some force and meaning. There is, in my opinion, no plausible ground for any holding other than one under which the commission was expected to secure the consent and approval of the city as to the location and construction before proceeding with the location and construction of the buildings proposed to be erected.
It may be said that such a holding would give to the city a permanent veto of any building not in keeping with its reasoned plans, or even its whims. Not so. The Legislature at its next session following an abuse of the use of the delegated power of the city could correct the situation; for, as is well known, the Legislature may, by general law, amend the existing charter of any town or city, and, of course, may add to or diminish the authority of any agency it creates. Therefore, giving force to a delegation of power, so long as it exists, does not lessen or restrict the power of the State to recall such delegation at its will and pleasure, so long as vested rights accruing under such delegation of power are protected.
The suggestion that the fact that the present zoning ordinance of the city was not adopted until one month after the enactment of the statute of 1939, creating the State Office Building Commission, has a significance in connection with the suit at bar, is, in my opinion, without merit. The power of the city to adopt zoning and building code ordinances was delegated to it by the State in 1927, *688and its use contemplated to meet the needs of the city as it developed. The 1939 Act did not purport to conflict with the powers theretofore delegated to the city, but on the-contrary, recognized them when the city’s consent and approval to the exercise of a part of the authority granted thereby was recognized as necessary.
I have not discussed the serious question raised by the' circuit court, touching the proprietary nature of the proposed enterprise. The provision providing that the proposed building might be leased for both public and private purposes casts doubt on whether the proposed enterprise-is wholly for a public purpose. I assume it will not be contended that the Legislature has the power to put the-State into an enterprise not in some way connected with a public purpose. The power to lease the proposed building to tenants engaged in private enterprises means the-power to lease the whole thereof to such tenants, although perhaps not so intended.
Nor have I alluded to the alleged repudiation by the-State of what has always been considered the well conceived “Gilbert Plan”, and the effect of such repudiation, on the setting and appearances of the Capitol grounds. What is now being proposed, either for good or bad, will endure for centuries. If, as alleged in the bill, the building-involved, as proposed to be located, will mar the beauty of the setting for the Capitol and the other buildings and. the grounds surrounding, then those who propose to bring about this result will, as do all public officials, answer to-the public and to posterity for their acts. It is not within the power, or properly within the province of this Court, to deal with such questions; and for this reason I have not discussed them.
My dissent to the rulings of the majority is based solely on my belief that the powers of the State Office Building Commission to locate and erect buildings in the City of Charleston were limited by its creator, the Legislature, by requiring the consent and approval thereto by the governing authority of the City of Charleston. The Legis*689lature having theretofore delegated powers to the city,, in respect to zoning and building codes, intended to cooperate with the city to the end that its reasonable plans, for city development should not be interfered with. In so acting, the Legislature did not intend to surrender any of the sovereign powers of the State, and did not have the' power to do so. What it did was to delegate to the said, commission a part of its powers, to be used in a manner which would recognize the powers it had already delegated to the City of Charleston. There is no inconsistency in this handling of the situation. If the city should become-unreasonable in the exercise of its powers delegated to it,, the Legislature had complete power to recall the powers so delegated, and proceed under its sovereign power to-exercise its will. But, so long as the power so delegated in the city continues, and especially in cases where, as here, the existence of such powers is impliedly recognized by the Legislature, a State agency, in my opinion, should not be permitted to go beyond the limits of its power and thus, nullify every existing zoning ordinance and every building ordinance, adopted at the instance of the State, so far as the same interferes with the plans of the agency, and. be the first to repudiate the plans made by the city, in. cooperation with the State, for the full development of the area surrounding the Capitol.
I would affirm the order of the Circuit Court of' Kanawha County, overruling the defendants demurrer to the bill of the plaintiff, and remand the cause to said court for further proceedings.