46 W. Va. 32 | W. Va. | 1899
Application was made to the circuit court of Fayette County by John Poteet, Stewart Blake, J. S. Boggess, W. W. Garrettson, and N. M. Jenkin, under the provisions of chapter 47 of the Code, for the incorporation, to be called the town of “Hill Top,” of certain territory in the district of Fayetteville, in said county, containing one thousand eight hundred and three acres, and a population of two hundred and eighty-one. On the 1st day of March, 1898, an order was made by the said court reciting that satisfactory proof was made that all the provisions of chapter 47 of the Code had been complied with, and incorporating the said territory; describing the same as appeared by the report of the surveyor made and filed in the case, as prescribed, and appointing three legal voters residing within said territory to act as commissioners of election at the first election to be held in said town. On the 12th day of March, 1898, R. J. Bloxton and J. E. Garrett, residents and voters within the boundaries of said town, appeared by counsel, and objected to the court authorizing a charter to be issued to said town, and moved the court to set aside the order entered on the 1st day of March, on the ground that the survey and map filed with the application were not in compliance with the statute in such case made and provided, and tendered in support of said motion the affidavits of H. E. Tansall and Thomas Nichol, which were filed; and the applicants, by their counsel, appeared and objected to said motion, which motion, being argued, was overruled, to which ruling of the court said Bloxton and Garrett, by their attorneys, objected and excepted. The said Bloxton and Garrett tendered their petition to this Court, praying a writ of prohibition against J. M. McWhorter, Judge of said circuit court, and the said applicants, and W. E. Harvey, John Poteet, and S. E. Wriston, the commissioners so appointed to hold the said first election, praying that all of said defendants, except McWhorter, Judge as aforesaid,
It is insisted by respondents that this Court has no jurisdiction, because, in the discharge of its ditties imposed upon it in relation to the incorporation of cities, towns, and villages, the circuit court is acting as a subordinate branch or tribunal of the Legislature, and not in the judicial department of the State government, and therefore its proceedings in such matters cannot be controlled by the judicial department. Section 8 of chapter 47 provides for the return of the election of which notice was given in the application under section 6, and that the result ■ of the vote shall be certified and returned under oath by the three voters under whose superintendence the vote was taken. And section 9 provides that, “upon the filing of such certificate and upon satisfactory proof that all the provisions of the foregoing sectons of this chapter have1 been complied with, the circuit court shall, by an order entered of record, direct the clerk of the said court to issue a certificate of the incorporation of such city, town or village, in form or substance as follows:” (giving the form of the certificate of incorporation); such section closing with, “and from and after the date of such certificate the ter-riory embraced within the boundary mentioned in said certificate shall be an incorporated city, town or village, by the name specified in the said notice and certificate.” In re Town of Union Mines,, 39 W. Va. 179 (19 S. E. 398, Syl.): “(1) Chaper 47 of the Code, in relation to the incorporation of cities, towns, and villages, in so far as it confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the legislative
Petitioners contend that the certificate of incorporation is void because of alleged defects in the proceeding. It appears from the record that the proceedings were all regular, and the court judicially passed upon the proof of all things done, and held that the same was satisfactory to the court; that all the provisions of chapter 47 had been complied with. Petitioners say that while this Court held “A? re Town of Union Mines, supra, that objectors to incorporation cannot be made parties litigant in the proceedings, and have no right to an appeal or other ordinary appellate writ, it has in the same case indicated that the action of the circuit court is subject to the supervision of this Court by mandamus or prohibition. And we see no reason why it should change the opinion thus expressed.” The opinion says: “In discharging these functions the circuit court does not act under the judicial branch of the government, and is not subject to its supervision, except by mandamus or prohibition, in a proper case, but acts as a part of the legislative branch of the government, under the express authorityof the Constitution,andissubject to its suprevision and control only, however, by impeachment or amendment or repeal of the law. Hence its action in discharging these legislative-judicial functions cannot be reviewed by this Court by a writ of error or other ordinary ap-appellate writ, notwithstanding their judicial character.” That is, in case persons desiring to obtain a certificate of incorporation of proper territory should comply fully with all the requirements of the statutes for the purpose, and make application in due form, and the circuit court should arbitrarily refuse to entertain such application, mandamus would lie to compel action; or, on the other hand, if the
Petitioners complain, also, of the large extent of the territory incorporated. This question is fully discussed and disposed of in Davis v. Town of Point Pleasant, 32 W. Va. 289, (9 S. E. 228), and cases there cited. ' The writ of prohibition is refused, and the petition dismissed.
Writ Denied.