104 Va. 509 | Va. | 1905
delivered the opinion of the court.
By an act of the General Assembly, approved March 14,
In pursuance of the terms of the act, an election was held on the 10th day of May, 1904, at which a majority of the whole vote cast was for the ratification of the charter, and a majority of the freeholders voting were likewise in favor of such ratification. It further appears that on the 7th day of June, 1904, A. J. Bryant was elected mayor; and George A. Christian, C. P. Shaner, J. H. Cooper, George T. Harris, Thomas H. Ban-ton and C. E. Bell, councilmen. At a meeting of these persons, claiming to be mayor and councilmen, respectively, of the town of Madison Heights, by virtue of the election of June 7, 1904, certain persons were appointed officers of the town, among others J. D. Mays, as sergeant and collector; and on the same day the council proceeded to levy a tax for various town purposes, for the year ending June 30, 1905, amounting in the aggregate to $Q,010.00, and to place the same in the hands of J. D. Mays, sergeant, for collection.
Shortly thereafter (the date does not appear), the bill in this case was filed by Duncan Campbell and twenty others, suing for themselves and on behalf of all other citizens of the territory embraced within the limits designated by the charter act, alleging that said act, purporting to incorporate the town of
Upon the hearing, the Circuit Court of Amherst county, by decree of March 16, 1905, overruled the demurrer, but dismissed the bill upon the ground that the complainants were not entitled to the relief prayed for. This conclusion of the Circuit Court, which rests upon the view that the act of March 14, 1904, incorporating the town of Madison Heights, is constitutional, is called in question by the present appeal.
The demurrer was properly overruled. The jurisdiction of a court of equity in this class of cases is well established. Bull v. Read, 13 Gratt. 78; Eyre v. Jacob, 14 Gratt. 422, 73 Am. Dec. 367; Johnson v. Drummond, 20 Gratt. 419; Redd v. Supervisors, 31 Gratt. 695; Lynchburg, &c. v. Dameron, 95 Va. 545, 28 S. E. 951; Cahoon v. Iron Gate, 92 Va. 367, 23 S. E. 767; Day v. Roberts, 101 Va. 248, 43 S. E. 362.
The mayor and members of the council are parties defendant and have appeared and answered the bill in their official capacity, as well as in their own right. It was, therefore, not necessary to make the town a party by name. It was present through its mayor and council, who were the only parties who could have
Section 117 of the Constitution provides, that general laws for the organization and government of cities and towns shall be enacted by the General Assembly, and that no special act shall be passed in relation thereto, except in the manner prescribed in article 4 of the Constitution. What special acts may be passed in relation to cities and towns, under art. 4 of the Constitution, need not now be considered, for it is clear that cities and towns not in existence when the Constitution went into effect can only be organized and governed in accordance with the general laws. This provision of our present fundamental law prohibiting special legislation and providing that general laws for the organization of cities and towns shall be enacted, and that no special act shall be passed in relation thereto, is second to no other provision of the Constitution in value and importance, and cannot be too carefully observed or strictly enforced.
Of course the Legislature can, as formerly, grant charters creating cities and towns, but when such charters are granted the city" or town so chartered must be organized and governed in accordance with the general laws, otherwise the charter would be obnoxious to the constitutional provision forbidding special legislation.
The charter of the town of Madison Heights, as set forth in the act of March 14, 1904, is obnoxious in numerous particulars to the constitutional inhibition against special legislation. It is not necessary to point out in this opinion all of the material respects in which the powers sought to be conferred by the act in question differ from the powers conferred upon towns by the existing general law. One or two examples may be mentioned.
Clause 20 of the act provides, that the election of mayor
It is provided that the mayor of Madison Heights shall be invested with the power and authority of a justice of the peace, within the limits of the town and to a distance of one and one-fourth miles beyond in Amherst county; and shall exercise like jurisdiction in all cases originating within such limits that a justice of the peace may now or hereafter have and exercise. This provision gives to the mayor both civil and criminal jurisdiction within the corporate limits and for a distance of one and a quarter miles beyond; whereas, the general law (A^a. Code, 1904, sec. 1032) provides, that the jurisdiction of the corporate authorities of each town or city, in criminal matters and for imposing and collecting a license tax on all shows, performances, and exhibitions, shall extend one mile beyond the corporate limits of such town or city; and further provides (Va. Code, 1904,-sec. 1033a), that the civil jurisdiction of mayors of towns shall be confined to the corporate limits of the town, and their criminal jurisdiction to such limits and one mile beyónd.
The sergeant of the town is given all of the powers and authority of a constable and conservator of the peace within the corporate limits, and for a distance of one and a quarter miles beyond; whereas, as already pointed out, the jurisdiction of the corporate authorities of a town is limited by the general law to one mile beyond the corporate limits.
Without further detail it may be said, that most of the important provisions of the act incorporating the town of Madison' Heights are either in conflict with the existing general law, or without any general law to support them. The fact, however, that no general law on the subject has been passed does not affect the question. Section 117 is self-executing so far as it
It would seem from clause nineteen of the act that the draughtsman of' the charter intended to confer special authority and poiver, it being there provided, that “in addition to the special powers hereinbefore especially delegated to the town council, all general powers not in conflict with the laws of this State or of the United States, necessary for the proper government of said town, and which are by law allowed to municipal corporations, are hereby likewise delegated and vested in the said town council.”
If, however, the Legislature had possessed the power to pass an act for the organization and government of a town conferring special powers, the charter in the case at bar would still be invalid, because it exempts the persons residing within the territorial limits of the proposed town from the payment of certain taxes to the county of Amherst, in violation of section 168 of the Constitution, which expressly provides that all taxes shall be uniform upon the same class of subjects within, the territorial limits of the authority levying the tax, and shall be levied and collected under general laws. This court has held that a town is a part of the county for all purposes of taxation, and that the Legislature has no power, by reason of the constitutional inhibition mentioned, to exempt the taxable persons and property in a town situated within the limits of a county and forming a part thereof, from county levies; that a part of a county cannot be made to bear all the burden of taxation for county purposes; and that the uniformity required extends not only to the rate and mode of assessment, but also to the territory to be assessed, and when a tax is levied by a county it must be uniform throughout the county. Day v. Roberts, 101 Va. 248, 43 S. E. 362.
In the case cited the court was construing a similar pro
This provision for exemption from taxes cannot he held invalid and the residue of the act be permitted to stand unaffected by the illegal section, .as was done in the case of Cahoon v. Iron Gate, &c., supra, because to escape the payment of such taxes was one of the chief inducements held, out by the charter to get the tax-payers of the proposed town to vote for the charter when it was submitted to them for their approval or rejection, and we cannot say that the people would have voted for the charter if that provision had been omitted. In such a case the whole charter must be held invalid. Robertson v. Preston, 97 Va. 296, 301, 33 S. E. 618.
It is not necessary to consider other features in which it is contended that the act of March 14, 1904, is invalid. It being unconstitutional in the particulars pointed out, the appellees had no power or authority to levy or collect the tax complained of. The act being unconstitutional, it is not^a law; it confers no rights; it imposes no duties; it affords no protection; it creates no office; it is,' in legal contemplation, as inoperative as though it had never been passed. Norton v. Shelby County, 118 U. S. 425, 30 L. Ed. 178, 6 Sup. Ct. 1121.
The authorities relied on by the appellees (see Agner’s Case, 103 Va. 811, 48 S. E. 493), in support of their argument that the courts have no power to dissolve a municipal charter; that municipalities exist only by legislative sanction, and cannot be dissolved or cease to exist except pursuant to legislative provision, have no application, to a case like this. There is no undertaking
For these reasons the decree appealed from must be reversed and this court will enter here such decree as the lower court ought to have entered, declaring the tax complained. of invalid and perpetually enjoining the appellees from all further attempt to collect the same.
Reversed.