concurring in part and dissenting in part:
I
I dissent to the majority’s holding today simply because I find that the governor has handled an impossible problem in a politically reasonable fashion. As the majority points out, “[t]he conditions of overcrowding in this state’s penal facilities are a persistent, deplorable problem. However, due to the dire financial straits in which the state currently finds itself, prison reform is not at the top of the legislative agenda. Prison reform has for years been somebody else’s problem.” By backing up felons in the county jails, the governor has made all counties acutely aware of the need to bring the state’s prisons up to constitutional standards. The public officials — sheriffs, judges, and county commissioners — of the various counties may in turn be expected to put pressure on their local legislators to make necessary appropriations.
Regardless of what is decided in this case, the physical circumstances of desperately poor, overcrowded facilities dictate that some provision of the Constitution or the general laws are going to be violated. Initially, both this Court and federal courts have established certain minimal constitutional protections for inmates in the state penitentiaries. We have already held that these standards are not being met. Crain v. Bordenkircher, 176 W.Va. 338, 342 S.E.2d 422 (1986). However, the statutory law of this state demands that persons convicted of felonies who are not placed on probation be committed to the penitentiary. Furthermore, W.Va. Const, art. Ill, § 5, provides that “[penalties should be proportioned to the character and degree of the offense,” which implies both a right and an obligation to punish. But, as the governor well understands, there is no penitentiary fit to receive those who merit punishment. *461The majority suggests that the governor may use his pardon and commutation powers to relieve the overcrowding, but that confounds the overall structure of the criminal law which demands that malefactors be punished.
Speech making and hortatory language do not build new prisons: money builds new prisons. Furthermore, we cannot logically infer that in a depressed State like West Virginia, our threatening to release inmates before their sentences have been completed will inspire legislators to appropriate between fifty and a hundred million dollars during one fiscal year to build a new prison. Unless this Court can figure out a way to give our governor and legislature money to work with, I fear that we shall simply remain a disembodied voice crying in the wilderness.
For reasons that I shall discuss below involving the inherent conflict between desirable but inconsistent provisions of the law, I would find in this case that the governor has acted properly and that his conclusion that the most appropriate way to handle the current overcrowding problem is to use the county jail facilities is an appropriate exercise of his policymaking discretion. Accordingly I would award the Writ of Prohibition.
II
Although not an issue raised directly in this case, the big stumbling block to prison reform is not a lack of humanitarian impulses on the part of either the governor or the legislature but, rather, W. Va. Code, 12-3-17 [1983], W.Va. Const., art. VI, § 51, and W. Va. Const., art X, § 4, all of which relate to limitations governing the financing of state-owned or leased facilities. W.Va.Code, 12-3-17 [1983] provides as follows:
Except as provided in this section, it shall be unlawful for any state board, commission, officer or employee: (1) To incur any liability during any fiscal year which cannot be paid out of the then current appropriation for such year or out of funds received from an emergency appropriation; or (2) to authorize or to pay any account or bill incurred during any fiscal year out of the appropriation for the following year: Provided, that nothing contained herein shall prohibit entering into a contract or lease for buildings, land and space, the cost of which exceeds the current year’s appropriation, even though the amount is not available during the then current year, if the aggregate cost does not exceed the amount then authorized by the legislature. Nothing contained herein shall repeal the provisions of the general law relating to the expiration of appropriations for buildings and land.
Subject to the provisions of chapter five-A, article five [§ 5A-5-1 et seq.] of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, the department of finance and administration is hereby authorized to enter into long-term lease agreements for buildings, land and space for periods longer than one fiscal year. Such long-term lease agreements shall not be for periods in excess of forty years and shall contain, in substance, all the following provisions:
(1) That the department of finance and administration, as lessee, shall have the right to cancel the lease without further obligation on the part of the lessee upon giving thirty days’ written notice to the lessor, such notice being given at least thirty days prior to the last day of the succeeding month;
(2) That the lease shall be considered canceled without further obligation on the part of the lessee if the state legislature or the federal government should subsequently fail to appropriate sufficient funds therefor or should otherwise act to impair the lease or cause it to be canceled; and
(3) That the lease shall be considered renewed for each ensuing fiscal year during the term of the lease unless it is canceled by the department of finance and administration before the end of the then current fiscal year.
Any member of a state board or commission or any officer or employee violating any provision of this section shall be *462personally liable for any debt unlawfully incurred or for any payment unlawfully made.
Basically, the constitutional and statutory provisions just cited effectively prohibit the legislature from doing the one thing that might work in the prison fiasco— namely, lease/purchase a new, modem prison from a private corporation, public corporation, or state authority. Such a scheme is hardly a new idea: this Court has approved long-term contracts, but, pursuant to the constitutional mandates, we have always required as a condition of approval, that the credit of the State not be pledged and that bondholders or private entrepreneurs assume the risk that the State may decide to terminate a long-term contract at any time. That, of course, isn’t much of a contract. State ex rel. West Virginia Resource Recovery Solid Waste Disposal Authority v. Gill, 174 W.Va. 109, 323 S.E.2d 590 (1984).
We regularly authorize the issuance of special revenue bonds when there are receipts from sources other than general revenue to service the indebtedness and the state’s general tax revenue is not pledged. State ex rel. County Court v. Demus, 148 W.Va. 398, 135 S.E.2d 352 (1964); State ex rel. Board of Governors v. O’Brien, 142 W.Va. 88, 94 S.E.2d 446 (1956); State ex rel. Kanawha County Bldg. Comm’r. v. Paterno, 160 W.Va. 195, 233 S.E.2d 332 (1977).
The problem with constructing a prison is that it is unlikely that a private corporation, public corporation, or state authority will be willing to undertake the construction without the guarantee of a long-term lease because there is no alternative use for a prison. Furthermore, a prison does not enjoy the political popularity of a football stadium, nor does it generate any revenues to support itself that are outside the purview of the “credit of the State.” And to make matters worse, the active involvement of courts in the whole prison problem presents the spectre that today’s modem prison may not find favor with tomorrow’s federal judges.
Under ordinary circumstances one cannot quarrel with the general proposition that W.Va. Const., art. X, § 4, W.Va. Const., art. VI, § 51, and W.Va.Code, 12-3-17 [1983] should be strictly enforced. These constitutional and statutory provisions reflect centuries of received wisdom and are one of the bulwarks of popular, responsive, fiscally sound, democratic government.
Nonetheless, the U.S. Constitution’s cruel and unusual punishment provision and our own W.Va. Const, art. Ill, § 5, equally reflect centuries of received wisdom. By age encrusted tradition, the cynosure of our criminal justice system is punishment by imprisonment rather than by transportation, execution, mutilation, branding, or flogging. Yet, as the majority points out, there is little sense of urgency about the matter among the electorate. Thus, as the majority opinion indicates, all of us in this process are placed between a constitutional Scylla and a political Charybdis. The interrelationship of our constitutional provisions, statutory mandates, and historically received methods of handling miscreants absolutely guarantee that if something doesn’t give somewhere, nothing whatsoever will happen except the generation of rapidly accelerating acrimony among equally humanitarian and enlightened branches of government and eventual intrusion into our domestic affairs by the federal courts.
Therefore, my candidates for the things that give are W.Va. Const., art. X, § 4, W.Va. Const., art. VI, § 51, and W.Va. Code, 12-3-17 [1983]. In my opinion, this result is mandated by the supremacy clause of the Constitution of the United States because our prisons do not pass federal standards and for that reason alone we have one of two choices: Either we must release a significant number of our inmates upon an unsuspecting world, or we must build new facilities. See Estelle v. Gamble, 429 U.S. 97, 97 S.Ct. 285, 50 L.Ed.2d 251 (1976); Hutto v. Finney, 437 U.S. 678, 98 S.Ct. 2565, 57 L.Ed.2d 522 (1978). Since our State Constitution obviously envisages punishment for felons, but at the same time, places limits on bonding authority and leasing arrangements, the *463only choice that we really have is to elect which of two desirable constitutional goals we wish to achieve; we cannot achieve both at once in the face of the Constitution of the United States.
I arrive at this conclusion with great reluctance because exceptions to W.Va. Const., art. X, § 4 and related provisions is the fiscal equivalent of the atomic bomb. Yet the preeminent authority for my conclusion in this regard comes from Mark 2:23-27, where it is said:
“And it came to pass, that he went through the corn fields on the sabbath day; and his disciples began, as they went, to pluck the ears of corn. And the Pharisees said unto him, Behold, why do they on the sabbath day that which is not lawful? And he said unto them, Have ye never read what David did, when he had need, and was an hungred, he, and they that were with him? How he went into the house of God in the days of Abiathar the high priest, and did eat the shewb-read, which is not lawful to eat but for the priests, and gave also them which were with him? And he said unto them, The sabbath was made for man, and not man for the sabbath.”
The fact of the matter is that we are currently spending almost as much money renovating and otherwise operating obsolete facilities as we would need to appropriate each year to retire the indebtedness on a new prison.1 According to figures provided by the Legislative Auditor, $3 million was budgeted for prison capital outlay in 1986-87 alone and $2 million was budgeted for the same purpose each of the two previous years. This expense does not reflect other costs associated with running obsolete facilities, such as excessive ordinary maintenance, excessive numbers of guards needed because of poor design, and inefficient heating. Candor requires the admission that a new prison will obviously involve some added expense. But we are currently pouring money down a rathole.
Accordingly, it appears to me that the next step is for the Department of Corrections to determine whether it is possible to arrange for the lease purchase of the modern prison facility that has already been designed at considerable public expense. Once an appropriate arrangement has been made, it would then be proper to bring a traditional “bond mandamus” in this Court against the Commissioner of Finance and Administration or another appropriate nominal defendant to determine whether such a long-term lease purchase arrangement is legal. At that point the entire Court will have an opportunity to evaluate the competing public policy goals of inconsistent constitutional and statutory provisions and some movement in an appropriate direction may be forthcoming.
I am authorized to say that Justices MILLER and BR0THERT0N join in part II of this opinion.
. It has recently been estimated that the total construction cost for a new prison to replace the penitentiary at Moundsville would be $67,561,-600.00. See Feasibility Study, West Virginia Penitentiary, Executive Summary submitted to the Joint Committee on Government and Finance of the West Virginia Legislature. As of today the interest rate on adjustable-rate, long-term bonds in West Virginia is 3.7%. Accordingly, the annual interest cost on an issue sufficient to construct a new prison would be only $2,499,780.