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FRANCIS O. DAY CO. v. BOARD OF REVIEW

No. 21261.

424 S.E.2d 763 (1992)

188 W.Va. 418

FRANCIS O. DAY CO., INC., Plaintiff/Petitioner Below, Appellee, v. THE WEST VIRGINIA RECLAMATION BOARD OF REVIEW, Defendant/Respondent Below, Appellant. Murrall Limited Partnership; Sandra Shade; James and Betty Hunter; Gary and Gloria Willis; and Berkeley County Public Service District, Intervenors. Elmer Vickers, Mary Catherine Vickers, Emmett Moler, Jr., Florence Moler, and Citizens Against the Quarry, Intervenors. Board of Trustees of the University of West Virginia System, Intervenor. Division of Environmental Protection of the West Virginia Department of Commerce, Labor and Environmental Resources, Intervenor.

Supreme Court of Appeals of West Virginia.

Decided December 11, 1992.

Attorney(s) appearing for the Case

Charles McElwee, David L. Yaussy, Christopher B. Power, Robinson & McElwee, Charleston, for the appellee, Francis O. Day Co., Inc.

Mario J. Palumbo, Atty. Gen., Maria M. Fakadej, Senior Asst. Atty. Gen., Stephen R. Van Camp, Mark J. Rudolph, Asst. Attys. Gen., Charleston, for the appellant, The West Virginia Reclamation Bd. of Review.

Hoy Shingleton, Benjamin L. Bailey, Kenneth E. Webb, Jr., Bowles Rice McDavid Graff & Love, Charleston, for intervenors Murrall Limited Partnership, et al.

Braun A. Hamstead, Nancy A. Dalby, Hamstead & Associates, L.C., Charles Town, co-attys. for intervenors Sandra Shade, James and Betty Hunter, and Gary and Gloria Willis.

Tom Rodd, Morgantown, Larry Harless, Charleston, for intervenor Elmer Vickers, et al.

Mario J. Palumbo, Atty. Gen., Brentz H. Thompson, Senior Asst. Atty. Gen., Charleston, for intervenor Board of Trustees of the University of West Virginia System.

Mario J. Palumbo, Atty. Gen., Russell L. Hunter, Asst. Atty. Gen., Nitro, for intervenor Division of Environmental Protection of the West Virginia Dept. of Commerce, Labor andEnvironmental Resources.

NEELY, Justice.

This case presents the issue of what happens when an administrative agency is unable to act because it lacks the number of votes required by statute. Because the litigants in such cases should not be penalized by an administrative agency's inability to act, we find that the litigants can proceed to the next higher tribunal.

I

The present case arose during the appeal process of a denial of a mining permit sought by Francis O. Day Co...

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