dissenting:
I respectfully dissent from the majority’s opinion on the grounds that the statute, W. Va. Code, 8-21-2 [1969] specifically grants to a board of park and recreation commissioners the power to “purchase, hold, sell and convey real or personal property; receive any gift, grant, donation, bequest or devise; sue and be sued; contract and be contracted with; and do any and all things and acts which may be necessary ... to carry out ... this article.” Since there is no express limitation on the right to convey property, nor any express requirement in the statute or elsewhere which mandates sale at public auction, none should be imposed by this Court.
Unless it appears that the duly constituted political authorities failed to act in the fiduciary interests of the citizens of the city and that there has been fraud, collusion, malfeasance, or the exercise of such outrageous business judgment that it is shocking to any reasonable mind, the decisions on matters of this kind of elected city officials should not be disturbed when there is no clear statutory provision which has been violated. Under the guise of procedural law a court should not substitute its judgment of the merits of a public issue for that of other duly constituted agencies of government acting in good faith pursuant to their own statutory mandates. Vermont Yankee Nuclear Power Corporation v. Natural Resources Defense Council, 435 U.S. 519, (1978). This is what I believe has occurred in this case.
*301At the outset it should be pointed out that this case, on its facts, is not about a cozy deal between corrupt city officials and an avaricious entrepreneur, but rather about a thoughtful, publicly disclosed, project for joint economic and recreational development. The record clearly demonstrates that the consideration for the option and the purchase price for the land in question were both fair.
Since this is a case of first impression and we are asked to interpret a vague statutory scheme, the facts are important. On 22 April 1968 the city of South Charleston acquired approximately 270 acres of undeveloped woodland adjacent to the city limits. The purchase was made from the city’s general revenue fund, and no individual property owner was assessed in connection with the purchase. On 15 February 1973 the South Charleston Board of Parks and Recreation, an independent public corporation, was formed by Ordinance #1104 and on 7 December 1973 the City of South Charleston transferred to its Board of Parks and Recreation, without consideration, the 270 acres of woodland subject to the condition that it be used for park and recreational purposes. It is a portion of this tract which is the subject of the instant law suit. On 11 August 1976 the South Charleston Board of Parks and Recreation, by unanimous vote of the Commissioners, declared 120 acres of the original 270 acre tract to be surplus and executed an option agreeing to sell that 120 acres, conditioned upon approval of the option by the City Council and removal by the City Council of the restriction requiring that the property be used for recreational purposes. On 2 September 1976 the South Charleston Board of Parks and Recreation amended the option to provide that all consideration paid for the option be non-refundable and on the same day the South Charleston City Council held its first public hearing upon Ordinance #1166 which would release the restriction upon the 120 acres in question. On 9 September 1976 the City Council held its second public hearing upon Ordinance #1166 and on 16 February 1977 Ordinance #1166 was implemented by removing *302the restrictions upon the 120 acres of optioned property. Throughout every stage of the negotiations the question was publicly debated, both formally and informally.
Ordinance #1166 specifically found that the 120 acres were undeveloped and incapable of development for recreational use due to lack of access. The ordinance further found that the development of the 120 acres by the construction of a shopping mall would provide the city with necessary access between Corridor G and the remaining 150 acres of undeveloped woodland retained by the Board, and that if the option were exercised the sale would provide $360,000 for development of the remaining 150 acres as a park. Furthermore, the ordinance concluded that the exercise of the option would provide a major business center for Kanawha County and create employment for the citizens of the City of South Charleston with attendant tax revenue for both the City and the State.
I
W. Va. Code, 8-21-9 [1969] concerning the authority of the park boards provides that :
The board shall have the right to sell and convey only such part of the real property that it may acquire by gift, devise, purchase or otherwise, as it may determine to be of no advantage in the establishment, construction, improvement, extension, development, maintenance of operation of said public parks, parkways, playgrounds, athletic fields, stadiums, swimming pools, skating rinks or arenas and other public park and recreational facilities, whether of a like or different nature; except that the board shall have the power and authority to make such sales and conveyances of its real property as may be necessary, appropriate or convenient to enable the city to obtain the benefits of article sixteen of this chapter or any other similar act or legislative authorization. Under no circumstances shall any of such real property of the board be sold or *303conveyed except by unanimous vote of all of the members of said board.
Although this section of the Code does not specifically provide for private sale, such power is not withheld, and we should reasonably infer that the provision that the sale must be by unanimous consent of the commissioners is a deliberate substitute for the safeguards accompanying a public auction.
This case presents the use of the legal process to frustrate legitimate economic development by raising the spectre that all private negotiations between governmental bodies and individual entrepreneurs will necessarily result in large private profits to the detriment of the public welfare. Obviously the risk of this happening should not be taken lightly, but the approach taken by the majority is to employ a cudgel when a rapier is needed; instead of confronting the problem of potential graft and corruption directly, the majority have been content to chill all local initiative and creativity regardless of whether the public will be served.
When we look at the transaction under consideration what we see is a private developer who is interested in building a multi-million dollar shopping mall on a piece of useless ground. Furthermore, the record conclusively demonstrates that the City of South Charleston did not have and does not have adequate funds to develop the raw lands currently in its possession for park and recreational purposes without a large infusion of outside money. Consequently, in order to serve the interests of the public in two areas, i.e., (1) the development of a park, and (2) the provision of jobs and tax revenues, it was thought expedient to enter into partnership with a private developer. All negotiations were conducted under public supervision; public hearings were provided on the issue of whether the city should release restrictions; and there was unanimous approval by the Park Board and majority approval by the City Council. Unless this Court were to be consummately cynical about the nature of the political process, we should infer that a valid *304political decision has been made in the best interests of the public.
In order to create a multi-million dollar mall it is necessary to coordinate the efforts of surveyors, engineers, architects, lending institutions, large chain stores to provide the “anchor” for the project to attract smaller stores, and finally contractors. This process frequently require years of effort and expense. A private developer is never sure that a proposed project will work out until all the pieces come together; therefore, a developer cannot pay top dollar for land until he sees if the other pieces of the puzzle fit, so he must take an option. Certainly this business reality should bring the granting of an option within the meaning of the words “contract and be contracted with” of Code, 8-21-2 [1969] when read together with Code, 8-21-9 [1969] giving the Board power to “sell and convey ... property ... as it may determine to be of no advantage ...”
II
There is no question in my mind that the statutory scheme1 establishing a board of park and recreation commissioners as an adjunct of a city provides so many lacunae in its express terms that the statutes are subject to almost any interpretation. My complaint with the majority opinion is not that the majority’s interpretation of vague language is totally frivolous or unjustified, but rather that it bespeaks a certain indifference to the economic needs of West Virginia, a certain ignorance of basic business practices, and a callous disregard of an urgent public policy to create employment. Under the majority’s holding today it is now impossible for a park board to enter into an option agreement with a private developer for the purpose of developing surplus land. Without an option no developer save one with enormous surplus capital to inventory land can afford to do the research and development necessary to determine *305whether a project is feasible. The consideration for the granting of the option is that where a commercial project is feasible, the developer will pay far in excess of the normal fair market value of the land because of its peculiar value to him as a developer, based upon exhaustive research. The fair market value of land is always determined by what a willing seller would accept and a willing buyer would pay for the ordinary use of property; Wheeling Elec Co. v. Gist, 154 W. Va. 69, 77, 173 S.E.2d 336, 341 (1970); see also, State Road Com’n v. Board of Parks Com’rs., 154 W. Va. 159, 167, 173 S.E.2d 919, 925 (1970); however, an option price is predicated upon a special use for the property and, in general, once all of the elements of a business deal are capable of being closed, particular property under option takes on a substantially enhanced value attributable to its special use. On the facts of the case before us I doubt that the property in question would sell at auction for the price set forth in the option.
The suspicion of today’s courts regarding all business transactions is slowly developing a legal structure which provides disincentive both to private initiative and to cooperation between the government and private enterprise. It is very nice to have acres upon acres of beautiful, unspoiled land available for scenic and recreational purposes; however, the nations of Upper Yolta, Paraguay, and Haiti have unspoiled land in abundance while the people are starving. Communities must make political choices between natural beauty and steady work.
The common law has always been imaginative in devising remedies to suppress actual fraud (the examples of resulting trusts and implied trusts leap instantly to mind) and if what we are concerned with in fleshing out the Legislature’s statutory scheme for park boards is the possibility of fraud or political manipulation, then we should address these issues directly and not by the proliferation of complex procedure which is successful in eliminating abuses only because it eliminates all activity of any sort whatsoever.
*306III
The common law has also been imaginative in deciding when municipal corporations may enter into contracts that bind their successors. If a contract appears reasonable to a court it is considered to be within the“proprietary” powers of the governing body, but if the contract appears eminently unreasonable it is deemed void because it is within the “governmental” powers of the governing body. These concepts are indeed empty vessels into which the courts must pour meaning since the line between powers classified as governmental and those classified as proprietary is blurred at best. The court in Plant Food Co. v. City of Charlotte, 214 N.C. 518, 199 S.E. 712 (1938) rejected that obvious sleight of hand and, instead, the court concocted a test which was equally as vapid as the governmental-proprietary test. Their new test, which was adopted in our majority opinion, required that contracts be .prohibited where public officials are deprived of a “discretion which public policy demands should be left unimpaired.” Id. at 214 N.C. 520, 199 S.E. at 714. The majority cited Plant Food for the proposition that governing bodies may not bind their successors by contract, but that court actually held the converse, namely that there was no governmental discretionary power of the city that was compromised in the making of a contract in which the city agreed to sell sludge to a plant food company over a ten year period.
An analysis of the “other courts” cited by the majority for the proposition that a governing body may not bind its successor by contract if it impairs a discretion which public policy demands should remain unfettered demonstrates that the true test is whether the contract itself is reasonable. A close examination of the three other authorities relied on by the majority in addition to Plant Food, supra reveals that in each case the governing bodies that entered into contracts had horrendous business judgment. The court in Whitworth College v. City of Brookhaven, 161 F.Supp. 775 (S.D.Miss. 1958) voided a contract which granted a private college a forty year lease for $1 a year with an option to purchase after *307twenty years for $25,000 plus 4% interest at any time in the succeeding twenty years. The contract in Tullos v. Town of Magee, 181 Miss. 288, 179 So. 557 (1938), which was cited in Whitworth and in the majority opinion for the same proposition, was even more unreasonable in that it called for monthly payments to the operator of a' town water pump for the rest of his life with a right of' succession in his lineal heirs “provided they could show by actual work that they were qualified and capable-[enough to operate a water pump.]” Id. at 294, 179 So. at 558. The final authority cited by the majority, Edwards Hotel & City R. Co. v. City of Jackson, 96 Miss. 547, 51 So. 802 (1910), is the father of this line of cases and the most unreasonable of the lot. In this instance, the city board entered into a contract with a street railway company which relieved the railway company of any duty to pay for the paving of the streets leaving the property owners along the streets with the burden of subsidizing the cost of the streetcars.
Judging from the obviously ill-advised contracts that the governing bodies entered into in the cases cited in the majority opinion, it appears that justices would be blind if they failed to detect the real principle lurking behind these decisions. These cases show that at best governing bodies sometimes are suckers and at worst they are crooked. Thus, the rule has evolved that a contract which extends beyond the terms of the governing body is binding so long as “at the time of execution, it is apparently fair, just and reasonable and is prompted by the necessities of the situation or its nature is advantageous to the municipality.” 63 C.J.S. Municipal Corporations, § 987 (1950). Although I seldom cite the Janus faced Corpus Juris, on this occasion it has actually made some sense out of a large body of judicial nonsense and owing to the paucity of authority in this area it is the only source where the correct rule is concisely stated. Sec also Denio v. City of Huntington Beach, 22 Cal.2d 580, 590, 140 P.2d 392, 397 (1943). Turning again to Plant Food, supra, that court realized that the restrictions on contracting by a governing body must be flexi*308ble because of the rapidly changing functions of a government. They refused to require a public auction and decided that the validity of the contract should turn upon the purposes of the contract. If that same analysis is applied to the contract sub judice I find that it complies with the requirements that it be fair, reasonable, prompted by the exigencies of the peculiar situation, and advantageous to the municipality. South Charleston’s contract was formulated in public, the price is fair, the arrangement for an option is standard business practice where large developments are concerned, and coercion or collusion has not been alleged. To me this is precisely what the court should focus upon in monitoring contracts entered into by the government. If the court sees the hand of Esau but hears the voice of Jacob we should say so; however, we should stop constructing elaborate procedural labyrinths merely because that has traditionally been the way courts achieve their substantive, policy making objectives. Needlessly elaborate procedure is killing America! Vermont Yankee Nuclear Power, supra.
While this Court seized upon the supposedly peculiar nature of the option involved here, I fail to perceive why it is so extraordinary. Admittedly, there is a paucity of authority allowing a municipality to agree to an option; however, the slim authority denying an option is a single Alabama case which hardly seems conclusive in this matter. It would be more fruitful to study the cases which present the closest analogy to the option to purchase-the lease of real property by a municipality. The courts have allowed municipal corporations to enter into long term leases of municipal property that extend beyond the terms of the individual members of the governing body. For “to do otherwise would segregate a municipal government from all other corporations and business institutions, in the methods employed for the transaction of business.” City of Biddeford v. Yates, 104 Me. 506, 72 A. 335 (1908). See Corning v. Patton, 236 Ala. 354, 182 So. 39 (1938), Jonesboro Area Athletic Asso. v. Dickson, 227 Ga. 513, 181 S.E.2d 852 (1971). It has also *309been held in certain instances that a lease would be invalid because it involved property held in a governmental rather than proprietary capacity. Once again, these cases on the whole concern questionable contracts such as a ninety-nine year lease entered into by a county commission on the last day of the term of their office. Decatur v. DeKalb County, 130 Ga. 483, 61 S.E. 23 (1908). In sum it appears that the courts (as usual) do almost what they please in this area by attaching the right code words or stock phrases. Courts have always done one thing and said another, but our legal system after 900 years should be entering sufficient maturity that these manipulative exercises which seek to clothe ad hoc decisions in the garb of universal principles should no longer be necessary. What I find particularly frightening is the possibility this Court truly believes in this instance that they are following the law where there actually is no law. Bad law is usually the result of quick-witted judges working backward from the correct decision on the facts to some principled reason therefor, and of succeeding generations of slow-witted judges who mindlessly take them seriously.
IV
Finally if the city is capable by ordinance of conveying property to the Board of Parks and Recreation without consideration pursuant to W. Va. Code, 8-21-9 [1969] then it would also appear that the city can similarly release any restriction in its favor regardless of how such restriction is characterized in terms of land la!w when the purpose is to permit the Board of Parks and Recreation to sell useless land to acquire money to develop parks for public use. While the statutory scheme does not address this issue directly in such a way as to authorize the city to release restrictions, nonetheless, it does not expressly or impliedly restrict such power either. Thus the issue is for our determination and we should determine it in such a way as to encourage the intelligent use of discretion on the part of our partners in government, local elected officials. I predicate my interpretation of *310the sparse statutory scheme exclusively upon our need to help rather than hinder industry.
Judges, whether they be life tenured Federal Court appointees or State judges with eight or twelve year terms are insulated by their government salaries from the vagaries of the private economy. Furthermore, the litigants who seek to enjoin the construction of new business enterprises are often themselves employees of the government or of some other large, organized, collective intelligence such as a corporation which enjoys an oligopolistic position in the product market and these anti-business lobbyists are similarly insulated in their jobs from the vagaries of the competitive sector of the economy. It is, however, the competitive sector of the economy which offers entry level employment to the marginally employable. Employment both in government (except under affirmative action programs) and major industry is sufficiently attractive that all positions can be staffed by the highly qualified; the marginally qualified are left to work in fast food chains, local shopping malls, and on itinerate construction projects. It is hardly an exercise in sublime moral courage for those who are utterly secure in their incomes and jobs to speak in poetic tones about the need for woodlands and recreation while the inarticulate are battered from pillar to post in an effort to find steady work.
W. Va. Code, §§ 8-21-1-8-21-14 [1969],