dissenting:
I respectfully dissent from the views expressed in the majority opinion.
For laudable reasons and accompanied by elaborate legislative findings and declarations of constitutionally valid purposes beneficial to the public, the Legislature adopted West Virginia Code, Chapter 8, Article 16, Section 4a, as amended. This statute delegates to municipalities authorization and means to construct motor vehicle *890parking facilities through the issuance of revenue bonds which may be underwritten and amortized by leases of the parking -facilities and by leases or sales of the air space over the land appurtenant to the parking facility to private developers and others for “business, commercial or charitable use ...
Like the majority, I have no quarrel with the finding that provision for additional parking facilities within a municipality is a public purpose. That, however, begs the more basic questions.
The statute explicitly delegates the legislative power as follows:
“(b) The governing body or bodies, in its or their discretion, may provide by ordinance or ordinances:
“ (1) For the leasing ... in or on a .. . motor vehicle parking facility for any business, commercial or charitable use to such person, for such fair and adequate consideration, for such period or periods of time and upon such other terms and conditions as such body or bodies or the board may agree to . . . .” (Emphasis supplied)
“ (2) For the leasing ... or the selling of air space over a . . . motor vehicle parking facility ....”, on the same conditions as set forth in sub-paragraph (1) above. Code 1931, 8-16-4a (b) (1) (2), as amended.
The statute also says that the city can accomplish the sale or lease of the property as follows:
“Any such lease may be privately negotiated without any public notice or advertising, and any such sale may be a public sale pursuant to the provisions of section eighteen [§ 18-12-18], article twelve of this chapter or such sale may be privately negotiated, notwithstanding the provisions of said section eighteen.” Code 1931, 8-16-4a (b) (3), as amended.
I note, as the majority has acknowledged, the statute making the delegation of power to the city is absolutely devoid of standards, conditioning or limiting the city’s *891right to lease or sell property previously dedicated to a public use, for that which may become a predominately private use.
Relevant to that point, one must also consider the fact that the delegation made to the city in Code 1931, 8-16-4a, as amended, is accompanied by the power of eminent domain which also permits the city to acquire private property for the purposes of constructing a municipal parking facility to be leased and sold as indicated in the foregoing Code section. Code 1931, 8-16-8, as amended.
Thus, for an admittedly valid purpose, the Legislature purports to permit any municipality within the State of West Virginia to do that which the Legislature itself is not permitted to do: Acquire private property through the processes of eminent domain for a public purpose; and contemporaneously, subvert the public purpose to a private purpose, by lease or sale of the acquired public property to private developers for their devotion to predominately private purposes, without limitation whatsoever.
It shocks me that the majority explicitly recognized the unlimited and extralegal delegation made by this statute and then, blithely, held it to be constitutional on its face. But, we are told not to worry. With cleverness and with a guile that is not entirely innocent, the opinion author for the majority prospectively warns any municipality proposing to avail itself of the provisions of this statute that “a parking facility which has as its primary and dominant purpose the conferring of private benefits, with only ancillary public benefits, would be an unconstitutional use of the authority conferred by Code, 8-16-4a.”
Aside from the fact that this Court is not authorized to issue advisory opinions, it also appears that mandamus is hardly the proper remedy to control hypothetical, and merely prospective, intentions of municipal officers.
*892The majority then purports to cure the imperfections of the legislation previously acknowledged by unconscionably encroaching upon the doctrine of separation of powers. The Court supplies judicially created standards to the statute so that the otherwise unconstitutional delegation of legislative power will be fleshed out with a set of standards requisite to a complete statute. The following surely represents a blatant example of “judicial legislation:”
“Therefore, if any given parking facility project is challenged on the constitutional grounds of lack of public purpose a court must look to an expansive definition of public purpose and evaluate the project in terms of (1) the necessity of commercial sale or leasing of space to finance the parking facility; (2) the degree to which the facility will enhance or implement any preexisting or proposed general plan of urban development and renewal; and (3) the degree to which the proposed project will enhance the State’s public policy of encouraging economic development and the expansion of industry and commerce.” Neely, J. — majority opinion.
This is followed by a final tongue-in-cheek caveat:
“Where it appears as a matter of fact that a proposed parking authority is merely a disguise for individual profit, a court is entitled to strike down the enterprise.” (Emphasis supplied). Neely, J. — majority opinion.
Obviously, the City of Charleston through its prospective bond counsel, would not have brought this statute to court for interpretation were it not for the fact that certain provisions of the Constitution give one pause for reflection before making a substantial investment in the construction of an authorized facility. As aptly expressed by counsel for respondent in his able brief: “It is well known that constitutional provisions directly affect the extent of permissible delegation.”
In my opinion, permissible delegation is that which is accompanied by standards adequate to notify the *893delegate to proceed without proceeding unlawfully. In the context of lawfulness, no body of law should be more respected than the Constitution, which is the organic and subsisting source document representing the will of the people. Among other things, this document says that the power to legislate reposes solely in the Legislature. W-.Va. Const, art. VI, § 1. Secondly, private property may be acquired through governmental processes only for a public purpose. W.Va. Const, art. Ill, § 9. Third, while the judiciary may approve or disapprove, it may not legislate to supply standards omitted from public policy as declared by the Legislature. W.Va. Const, art. V, § 1; art. VI, § 1; art. VIII, § 1. Where a delegate agency is clothed with the colorable authority to take property for a predominately private purpose under the guise of eminent domain, the invalidity inheres in the grant of authority rather than within the potential act of the delegate. Hench v. Pritt, 62 W.Va. 270, 57 S.E. 808, 125 Am.St.R. 966 (1907). Such invalidity, although curable by the delegator of legislative power, cannot be constitutionally remedied by the judiciary. W.Va. Const, art. V, § 1; art. VI, § 1. It is within our power, as courts, pursuant to the limitations of the Separation Clause, to stamp our imprimatur upon that which is complete when it leaves the Legislature, or to sanction or disapprove action previously taken by the executive department. Courts, however, cannot supply the missing legislative standard, nor advise and approve the prospective executive action for which a method of procedure has not been previously authorized by a constitutional grant from the people or a lawful delegation from the Legislature.
For these rather basic reasons, I find it necessary to disagree with the decision of the majority.