SER Mountaineer Park v. Polan
Annotate this Case
September 1993 Term
___________
No. 21767
___________
STATE OF WEST VIRGINIA
EX REL. MOUNTAINEER PARK, INC.,
A WEST VIRGINIA CORPORATION,
Petitioner
V.
CHARLES POLAN, SECRETARY OF THE DEPARTMENT
OF ADMINISTRATION OF THE STATE OF WEST VIRGINIA,
AND RONALD RILEY, DIRECTOR OF THE PURCHASING
DIVISION OF THE DEPARTMENT OF ADMINISTRATION
OF THE STATE OF WEST VIRGINIA,
BOTH IN THEIR OFFICIAL CAPACITIES ONLY,
Respondents
__________
No. 21768
__________
STATE OF WEST VIRGINIA EX REL.
THE WEST VIRGINIA STATE LOTTERY COMMISSION,
Petitioner
V.
CHARLES POLAN, SECRETARY OF THE DEPARTMENT
OF ADMINISTRATION OF THE STATE OF WEST VIRGINIA,
AND RONALD RILEY, DIRECTOR OF THE PURCHASING
DIVISION OF THE DEPARTMENT OF ADMINISTRATION
OF THE STATE OF WEST VIRGINIA,
BOTH IN THEIR OFFICIAL CAPACITIES ONLY,
Respondents
___________________________________________________
PETITIONS FOR WRITS OF MANDAMUS
WRITS DENIED
___________________________________________________
Submitted: September 14, 1993
Filed: October 28, 1993
John L. McClaugherty
Louis S. Southworth, II
Wendell Turner
Jackson & Kelly
Charleston, West Virginia
Attorneys for the Petitioner, Mountaineer Park, Inc.
Robin Welch
Special Assistant Attorney General
Roane County, West Virginia
Attorney for the Petitioner,
The West Virginia State Lottery Commission
Darrell V. McGraw, Jr.
Attorney General
William S. Steele
Deputy Attorney General
Charleston, West Virginia
Attorney for Respondents
Reverend James M. Kerr
West Virginia Counsel of Churches
Charleston, West Virginia
Amicus Curiae
Scott A. Churilla
Robinson & McElwee
Charleston, West Virginia
Amicus Curiae of GTech Corporation
Martin J. Gaughan
Weirton, West Virginia
Amicus Curiae of Racetrack Employees' Union Local 101
JUSTICE McHUGH delivered the Opinion of the Court.
SYLLABUS BY THE COURT
1. Article VI, section 36 of the West Virginia
Constitution provides an exception to the prohibition against
lotteries to allow the operation of a lottery which is regulated,
controlled, owned and operated by the State of West Virginia in
the manner provided by general law. Only those lottery
operations which are regulated, controlled, owned and operated in
the manner provided by general laws enacted by the West Virginia
Legislature may be properly conducted in accordance with the
exception created under article VI, section 36 of our
Constitution.
2. In order for a delegation of authority by the
legislature to an administrative agency to be constitutional, the
legislature must prescribe adequate statutory standards to guide
the agency in the administration of the statute, and not grant
the agency unbridled authority in the exercise of the power
conferred upon it. A general delegation of authority by the
legislature to the Lottery Commission under W. Va. Code, 29-22-9(b)(2) [1990], authorizing it to promulgate rules and
regulations with regard to "electronic video lottery systems," is
clearly not a sufficient statutory standard which would vest the
Lottery Commission with power to include electronic gaming
devices, such as electronic video lottery, as part of the
operations of the state lottery. To hold otherwise would result
in an unlawful delegation of legislative power to the Lottery
Commission and would violate article VI, § 36 of the West
Virginia Constitution.
3. "As a general rule the Legislature, in delegating
discretionary power to an administrative agency, such as a board
or a commission, must prescribe adequate standards expressed in
the statute or inherent in its subject matter and such standards
must be sufficient to guide such agency in the exercise of the
power conferred upon it." Syl. pt. 3, Quesenberry v. Estep, 142
W. Va. 426, 95 S.E.2d 832 (1956).
4. "'Wherever an act of the Legislature can be so
construed and applied as to avoid a conflict with the
Constitution, and give it the force of law, such construction
will be adopted by the courts.' Syllabus Point 3, Slack v.
Jacobs, 8 W. Va. 612 (1875)." Syl. pt. 1, Perilli v. Board of
Education, 182 W. Va. 261, 387 S.E.2d 315 (1989).
5. "'A writ of mandamus will not issue unless three
elements coexist--(1) a clear legal right in the petitioner to
the relief sought; (2) a legal duty on the part of respondent to
do the thing which the petitioner seeks to compel; and (3) the
absence of another adequate remedy.' Syllabus point 2, State ex rel. Kucera v. Wheeling, 153 W. Va. 538, 170 S.E.2d 367 (1969)."
Syl. pt. 4, Delardas v. County Court of Monongalia County, 158 W.
Va. 1027, 217 S.E.2d 75 (1975).
In these original proceedings in mandamus, the
petitioners, Mountaineer Park, Inc. (hereinafter "Mountaineer")
and the West Virginia Lottery Commission (hereinafter "Lottery
Commission"), each seek a writ from this Court to compel the
respondents, Charles M. Polan and Ron Riley, to approve a
contract entered into between the petitioners for the operation
of an electronic video lottery game. For the reasons stated
herein, we deny both writs.
I.
On November 6, 1984, the voters of the State of West
Virginia ratified an amendment to article VI, section 36 of the
West Virginia Constitution to allow the legislature to "authorize
lotteries which are regulated, controlled, owned and operated by
the State of West Virginia in the manner provided by general law,
either separately by this State or jointly or in cooperation with
one or more other states[.]" Upon receiving voter approval, the
legislature enacted the State Lottery Act, W. Va. Code, 29-22-1 through 29-22-28, "to establish and implement a state-operated
lottery[.]" W. Va. Code, 29-22-2 [1985].
The State Lottery Act provides that the lottery is to
be operated under the supervision of the Lottery Commission and
its director. Under the Act, the Lottery Commission was first
authorized to initiate a "preprinted instant winner type
lottery." W. Va. Code, 29-22-9(a) [1990]. The Act further
provides that the "commission shall proceed with operation of
such additional lottery games, including the implementation of
games utilizing a variety of existing or future technological
advances at the earliest feasible date." W. Va. Code, 29-22-9(c)
[1990].
Within a year after the enactment of the State Lottery
Act, lottery operations began; first with the sale of instant
game tickets in January of 1986, and then with the
implementation of an "on-line game" the following month. In
1990, the Lottery Commission expanded lottery operations by
entering into a three-year contract with Mountaineer for the
operation of an electronic video lottery game at Mountaineer's
thoroughbred race track in Hancock County, West Virginia. The
video lottery terminals, which are provided by Mountaineer under
its contract with the Lottery Commission, are owned by Scientific
Games, Inc.
In 1993, Senate President Keith Burdette, in response
to concerns raised by certain senators regarding the continuation
and expansion of electronic video lottery, requested that
Attorney General Darrell V. McGraw issue an opinion as to whether
private ownership of the video lottery terminals was constitutionally permissible. Attorney General McGraw opined
that article VI, section 36 of the Constitution requires that the
state own all "devices" used in conjunction with the state
lottery.
Thereafter, the Lottery Commission and Mountaineer
submitted a contract amendment and extension agreement to the
director of the Purchasing Division of the Department of
Administration for approval. In a letter dated May 21, 1993, Mr.
Riley, the director of the purchasing division and a respondent
herein, refused to approve the contract amendment and agreement
extension based upon the Attorney General's opinion that the
video lottery terminals must be owned by the State of West
Virginia.
The Lottery Commission and Mountaineer each now seek a
writ of mandamus from this Court to compel the respondents to
approve their contract amendment and extension agreement on the
ground that the Constitution does not mandate that the State own
the video lottery terminals.
II.
As an initial matter, we point out that the parties to
these mandamus proceedings have focused their arguments on the
issue of whether the West Virginia Constitution mandates that the
State must own each component of electronic video lottery. In
our review, however, we have found that the more crucial inquiry
is whether the Constitution requires the legislature to pass laws
which prescribe: (1) the manner in which electronic video
lottery operations are regulated, controlled, owned and operated
before any can be properly conducted; and (2) sufficient
standards to guide the Lottery Commission so that the delegation
of authority is constitutional and does not vest the Lottery
Commission with uncontrolled discretion.
Thus, in reaching our decision today, we are guided by
the basic principles governing constitutional construction and
interpretation. We succinctly stated these principles in State
ex rel. Brotherton v. Blankenship, 157 W. Va. 100, 108, 207 S.E.2d 421, 427 (1973):
The fundamental principle in constitutional
construction is that effect must be given to
the intent of the framers of such organic law
and of the people who ratified and adopted
it. . . . If the language of a
constitutional provision is plain and
unambiguous it is not subject to judicial
interpretation, the intent of the framers and
the people being readily ascertainable therefrom. When an ambiguity appears,
however, ordinary principles employed in
statutory construction must be applied to
ascertain such intent. It must, therefore,
first be determined whether the
constitutional provision in question is
imbued with ambiguity.
(citations omitted). Simply put, the object of constitutional
construction and interpretation is to give effect to the intent
of the people in adopting it. Diamond v. Parkersburg-Aetna
Corp., 146 W. Va. 543, 122 S.E.2d 436 (1961); State ex rel. Trent
v. Sims, 138 W. Va. 244, 77 S.E.2d 122 (1953). However, where
the provision of the Constitution "'is clear in its terms and of
plain interpretation to any ordinary and reasonable mind, it
should be applied and not construed.'" Syl. pt. 4, State ex rel.
Casey v. Pauley, 158 W. Va. 298, 210 S.E.2d 649 (1975); syl. pt.
3, State ex rel. Smith v. Gore, 150 W. Va. 71, 143 S.E.2d 791
(1965).
Moreover, when, as here, this Court is called upon to
either interpret or construe an exception to a constitutional
provision, such exception must be "strictly construed and limited
to objects fairly within their terms." 16 Am. Jur. 2d
Constitutional Law § 108 P. 452 (1979) (footnote omitted). See
16 C.J.S. Constitutional Law § 18 P. 67 (1984).
Another equally important principle this Court must
consider is that the legislature may not vest an administrative
agency with uncontrolled discretion. The legislature may not
grant an administrative agency unbridled authority under an
enabling statute; the delegation of authority to the agency in
connection with the administration of statutes must be
circumscribed by rules for the guidance of the agency. 16 C.J.S.
Constitutional Law § 143 (1984). We recognized this fundamental
principle of constitutional law in syllabus point 3 of
Quesenberry v. Estep, 142 W. Va. 426, 95 S.E.2d 832 (1956):
As a general rule the Legislature, in
delegating discretionary power to an
administrative agency, such as a board or a
commission, must prescribe adequate standards
expressed in the statute or inherent in its subject matter and such standards must be
sufficient to guide such agency in the
exercise of the power conferred upon it.
See State ex rel. West Virginia Housing Development Fund v.
Waterhouse, 158 W. Va. 196, 212, 212 S.E.2d 724, 733 (1974);
State ex rel. West Virginia Housing Development Fund v. Copenhaver, 153 W. Va. 636, 171 S.E.2d 545 (1969); Meisel v.
Tri-State Airport Authority, 135 W. Va. 528, 64 S.E.2d 32 (1951).
Finally, an administrative agency can only exercise
such powers as those granted by the legislature, and if such
agency exceeds its statutory authority, its action may be
nullified by this Court. State Human Rights Comm'n v. Pauley,
158 W. Va. 495, 212 S.E.2d 77 (1975), disapproved of on another
point, State ex rel. Human Rights Comm'n v. Pearlman Realty
Agency, 161 W. Va. 1, 239 S.E.2d 145 (1977).
Keeping in mind these fundamental principles, we now
briefly review the history of the constitutional provision
relating to lotteries. At the first constitutional convention of
the State of West Virginia, the framers of our state Constitution
adopted, without debate, a prohibition against lotteries. 1
Debates and Proceedings of the First Constitutional Convention of
West Virginia 1861-1863 pp. 51, 673-74. Article XI, section 1 of
the original constitution provided that "[n]o lottery shall be
authorized by law; and the buying, selling or transferring of
tickets or chances in any lottery shall be prohibited." 3
Debates and Proceedings of the First Constitutional Convention of
West Virginia 1861-1863 P. 881.
The absolute prohibition against lotteries remained
part of our Constitution until 1983, when the Senate and the
House approved a state-run lottery amendment to be placed on the ballot for voter ratification in the 1984 general election.
The proposed amendment was summarized on the ballot as follows:
"To amend the State Constitution to permit the Legislature to
pass laws authorizing state operated and controlled lotteries."
(emphasis added). In 1984, the voters ratified this amendment to
allow the legislature to pass laws establishing a state-run
lottery. Accordingly, article VI, section 36 of the
West Virginia Constitution was amended to provide an exception to
the prohibition against lotteries. Article VI, section 36 of the
Constitution now provides, in relevant part:
The legislature shall have no power to
authorize lotteries or gift enterprises for
any purpose, and shall pass laws to prohibit
the sale of lottery or gift enterprise
tickets in this State; except that the
legislature may authorize lotteries which are
regulated, controlled, owned and operated by
the State of West Virginia in the manner
provided by general law, either separately by
this State or jointly or in cooperation with
one or more other States.
(emphasis added). The exception to the prohibition against
lotteries created by this constitutional amendment is the center
of the controversy in the case now before us.
A.
Video Lottery in Other States
Legislatures in other states, which have similar
constitutional provisions, have enacted specific statutes
authorizing video lottery games. A good example is South
Dakota. The exception to the prohibition against lotteries under
the South Dakota Constitution is substantially the same as the
exception found under our Constitution.
The South Dakota Legislature enacted statutes
establishing and regulating video lottery operations.
Specifically, the South Dakota Legislature: (1) set forth the
requirements for licensed video lottery machines, S.D. Codified
Laws Ann. § 42-7A-37 (1991); (2) placed restrictions on licensed
establishments, S.D. Codified Laws Ann. § 42-7A-37.1 (Supp.
1993); (3) established limits on the amount played and the awards
given, S.D. Codified Laws Ann. § 42-7A-38 (1991); (4) required a
background investigation of video lottery licensees, S.D.
Codified Laws Ann. § 42-7A-43 (Supp. 1993); (5) stated the rules
for placement of video lottery machines in establishments, S.D.
Codified Laws Ann. § 42-7A-44 (Supp. 1993); (6) established
criminal penalties for tampering with a video lottery machine and
manipulating the outcome, payoff or operation of a video lottery
machine, S.D. Codified Laws Ann. §§ 42-7A-46 and 42-7A-47 (1991);
and (7) established the age limit and legal hours for the
operation of video lottery machines, S.D. Codified Laws Ann. §
42-7A-48 (1991).
Similar statutory provisions authorizing video lottery
games have been enacted by the Rhode Island General Assembly.
The Constitution of Rhode Island provides an exception,
comparable to the exceptions found under the Constitutions of
South Dakota and West Virginia, to the general prohibition
against lotteries. The Rhode Island General Assembly enacted
Chapter 61.2 of Volume 6C of the General Laws of Rhode Island.In addition to setting forth the powers and duties of the Lottery
Commission with respect to video lotteries, R.I. Gen. Laws §§ 42-61.2-2 to 42-61.2-4 (Supp. 1992), the General Assembly placed
restrictions upon whom may play, R.I. Gen. Laws § 42-61.2-5
(Supp. 1992), and when video lottery may be played, R.I. Gen.
Laws § 42-61.2-6 (Supp. 1992). The General Assembly also
specified the allocation of the income derived from video lottery
games, R.I. Gen. Laws § 42-61.2-7 (Supp. 1992), and established
penalties for tampering with or manipulating the outcome, payoff
or operation of the video lottery terminal, R.I. Gen. Laws § 42-61.2-8 (Supp. 1992).
As a final example, we recognize the laws established
in Oregon for the operation of video lottery. While article
XV, section 4 of the Oregon Constitution prohibits the operation
of any lottery, it does create certain exceptions, including the
operation of a state-run lottery by the Lottery Commission. The
Oregon Legislative Assembly authorized the Lottery Commission to
initiate games using video lottery devices, Or. Rev. Stat. §
461.215 (1991), placed limitations on the placement of video
lottery terminals, Or. Rev. Stat. § 461.217(2) (1991), and
specified the use of proceeds from video lottery games, Or. Rev.
Stat. §§ 461.544 to 461.548 (1991). The Oregon Legislative
Assembly also enacted comprehensive laws for: (1) the operation
of the lottery; (2) lottery game retailers, vendors and
contractors; (3) lottery finances; and (4) prohibited conduct.
Or. Rev. Stat. §§ 461.200 to 461.600 (1991).
B.
The Legislature
As in every case involving the application or
interpretation of a constitutional provision, analysis must begin
with the language of the constitutional provision itself. Upon
analyzing the exception created under article VI, section 36 of
the Constitution, we believe this constitutional provision "'is
clear in its terms and of plain interpretation to any ordinary
and reasonable mind[.]'" Syl. pt. 4, Casey, supra; syl. pt. 3,
Smith, supra. By its terms, article VI, section 36 of the
Constitution allows the legislature to authorize lotteries which
are regulated, controlled, owned and operated by this state "in
the manner provided by general law[.]" (emphasis added). The
plain language of this constitutional provision authorizes the
legislature not simply to establish a state-run lottery, but also
to prescribe the "general law" pursuant to which the lotteries
will be "regulated, controlled, owned and operated[.]"
Moreover, we believe that the application of the plain
language of article VI, section 36 of the Constitution gives
effect to the intent of the people in adopting it. Specifically,
the voters of this state, in ratifying the amendment, authorized
the legislature to "pass laws" establishing a state-run lottery.
The unambiguous terms of this constitutional provision allowing
lotteries to be "regulated, controlled, owned and operated . . .
in the manner provided by general law" clearly gives effect to
the intent of the voters of this state to allow the legislature
to "pass laws" authorizing a state operated and controlled
lottery.
With respect to electronic video lottery, however, the
legislature has not enacted the appropriate laws establishing
electronic video lottery games. In fact, the only specific
reference to electronic video lottery under our State Lottery Act
is found under W. Va. Code, 29-22-9(b)(2) [1990], which provides
that "[e]lectronic video lottery systems must include a central
site system of monitoring the lottery terminals utilizing an on-line or dial-up inquiry."
Electronic video lottery, by its very nature, is
significantly different from common state-run lottery games.
Although this Court has not been given a specific description of
the devices to be used in video lottery, we have found
descriptions of such devices from other sources. For example, a
commentator has noted that the "video lottery terminals" used at
Mountaineer Park are "converted slot machines that can dispense
paper-tickets." Cory Aronovitz, To Start, Press the Flashing
Button: The Legalization of Video Gambling Devices 5 Software L.J. 771 n.1 (1992) (emphasis added). Furthermore, one state
defines "video lottery machines" as "any electronic video game
machine that, upon insertion of cash, is available to play or
simulate the play of a video game, including but not limited to
video poker, keno and blackjack[.]" S.D. Codified Laws Ann. §
42-7A-1(18) (Supp. 1993). Another state defines "video lottery
terminals" as "any electronic computerized video game machine
that, upon the insertion of cash, is available to play a video
game . . . which uses a video display and microprocessors in
which, by chance, the player may receive free games or credits
that can be redeemed for cash." R.I. Gen. Laws § 41-61-2.1(a)
(Supp. 1992). See also S. C. Code Ann. § 12-21-2772(5) (1993).
Our legislature, however, has yet to even define electronic video
lottery, much less explicitly authorize it. Such definition and
authorization is essential where, as in this state, there has
been a long-standing general prohibition against gambling of any
kind.
The fact that electronic video lottery is different
from the common state-run lottery games, and has been defined as
"video poker, keno and blackjack," also raises a question as to
whether electronic video lottery is actually a lottery as
contemplated by W. Va. Const. art. VI, § 36. West Virginia
law prohibits gambling, W. Va. Code, 61-10-1 to 61-10-31. For
example, W. Va. Code, 61-10-1 [1970] prohibits any person from
keeping or exhibiting a "gaming table, . . . or faro bank, or
keno table, or any slot machine, multiple coin console machine,
multiple coin console slot machine or device in the nature of a
slot machine, or any other gaming table or device of like
kind[.]" It is not clear from the record before us whether
video lottery is the type of gambling prohibited under our anti-gambling statutes. We are not convinced that W. Va. Const. art.
VI, § 36 contemplated a form of lottery which in some states has
included gambling activities such as slot machines and keno.
Moreover, we cannot find that the State Lottery Act, which
neither defines nor explicitly authorizes "electronic video
lottery," constitutes a considered judgment by the legislature to
implement such a far-reaching scheme to raise revenue. We are
simply unwilling to approve, on this record, the Lottery
Commission's attempt to bring "electronic video lottery" within
the definition of lottery, as that term is used both under the
State Lottery Act and W. Va. Const. art. VI, § 36.
C.
The Lottery Commission
This Court is also troubled by the Lottery Commission's
expansion of lottery operations to include electronic video
lottery at Mountaineer Park. The Lottery Commission cannot act
without constitutional and statutory authority. There is no
language in article VI, § 36 of our Constitution which would give
the Lottery Commission the authority to establish video lottery.
As we pointed out earlier in this opinion, the
legislature must prescribe adequate standards to guide
administrative agencies in the exercise of their power under
enabling statutes in order for the delegation of authority to be
constitutional. Waterhouse, supra; Copenhaver, supra; Quesenberry, supra; Meisel, supra. This simply means, in the
case now before us, that the legislature cannot vest the Lottery
Commission with unbridled or uncontrolled authority in connection
with the administration of the State Lottery Act. While W. Va.
Code, 29-22-9(b)(2) [1990] authorizes the Lottery Commission to
promulgate rules and regulations with regard to "electronic video
lottery systems," this provision is clearly not an adequate
standard, with respect to electronic video lottery, for guidance
of the Lottery Commission in the exercise of its delegated
authority under the State Lottery Act.
Moreover, while the State Lottery Act gives the Lottery
Commission the authority to "[s]elect the type and number of
public gaming systems or games," W. Va. Code, 29-22-5(a)(3)
[1985], and to implement "games utilizing electronic computers
and electronic computer terminal devices and systems," W. Va.
Code, 29-22-9(c) [1990], we do not believe that the term "games"
as used in these subsections can mean the video gambling devices
which are contemplated at Mountaineer Park. This is particularly
true in light of the language in both W. Va. Code, 29-22-9(b)(4)
[1990], which states that "[n]o lottery utilizing a machine may
use machines which dispense coins or currency[,]" and W. Va.
Code, 29-22-9(b)(5) [1990], which states that "[s]election of a
winner must be predicted totally on chance." In view of these
restrictions and the lack of any clear statement in W. Va. Code,
29-22-1, et seq. authorizing video gambling devices, we find that
the legislature has not delegated such authority to the Lottery
Commission. The legislature in subsequent legislation could, of
course, amend this statute to clearly state that video gambling
devices are part of the lottery system.
To interpret W. Va. Code, 29-22-5(a)(3) [1985] and W.Va. Code, 29-22-9(c) [1990], as giving the Lottery Commission
unbridled authority to select and implement any game, including
those not contemplated by the Constitution and the legislature,
would raise serious constitutional questions regarding the
enabling statute. As we recognized in syllabus point 1 of
Perilli v. Board of Education, 182 W. Va. 261, 387 S.E.2d 315
(1989): "'Wherever an act of the Legislature can be so construed
and applied as to avoid a conflict with the Constitution, and
give it the force of law, such construction will be adopted by
the courts.' Syllabus Point 3, Slack v. Jacobs, 8 W. Va. 612
(1875)."
Thus, this Court must construe both W. Va. Code, 29-22-5(a)(3) [1985] and W. Va. Code, 29-22-9(c) [1990], as allowing
the Lottery Commission to select those common state-run lottery
games which were included in a lawful delegation of authority by
the legislature, and which can be operated in accordance with the
exception created under W. Va. Const. art. VI, § 36. Thus,
because the legislature has not enacted general laws for the
regulation, control, ownership and operation of electronic video
lottery, and because the legislature failed to prescribe adequate
standards in the State Lottery Act to guide the Lottery
Commission in the exercise of the power conferred upon it with
respect to electronic video lottery, the Lottery Commission was
without authority under the Constitution to establish electronic
video lottery.
In summary, we conclude that article VI, section 36 of
the West Virginia Constitution provides an exception to the
prohibition against lotteries to allow the operation of a lottery
which is regulated, controlled, owned and operated by the State
of West Virginia in the manner provided by general law. Only
those lottery operations which are regulated, controlled, owned
and operated in the manner provided by general laws enacted by
the West Virginia legislature can be properly conducted in
accordance with the exception created under article VI, section
36 of our Constitution.
We further hold that in order for a delegation of
authority by the legislature to an administrative agency to be
constitutional, the legislature must prescribe adequate statutory
standards to guide the agency in the administration of the
statute, and not grant the agency unbridled authority in the
exercise of the power conferred upon it. A general delegation of
authority by the legislature to the Lottery Commission under W.Va. Code, 29-22-9(b)(2) [1990], authorizing it to promulgate
rules with regard to "electronic video lottery systems," is
clearly not a sufficient statutory standard which would vest the
Lottery Commission with power to include electronic gaming
devices, such as electronic video lottery, as part of the
operations of the state lottery. To hold otherwise would result
in an unlawful delegation of legislative power to the Lottery
Commission and would violate article VI, § 36 of the West
Virginia Constitution.
III.
The traditional rule governing the issuance of a writ
of mandamus has been consistently stated by this Court:
'A writ of mandamus will not issue
unless three elements coexist--(1) a clear
legal right in the petitioner to the relief
sought; (2) a legal duty on the part of
respondent to do the thing which the
petitioner seeks to compel; and (3) the
absence of another adequate remedy.'
Syllabus point 2, State ex rel. Kucera v.
Wheeling, 153 W. Va. 538, 170 S.E.2d 367
(1969). Syl. pt. 4, Delardas v. County Court of Monongalia County, 158 W.
Va. 1027, 217 S.E.2d 75 (1975).
Based upon our holding in this case, we find that the
petitioners are not clearly entitled to the relief sought.
Accordingly, the petitions for writs of mandamus are denied.
Writs denied.
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