32 W. Va. 289 | W. Va. | 1889
On 6th of September, 1886, the Circuit Court of Mason county made the following order: "Ex parte Town of Point Pleasant in Mason county. This day came the town of Point Pleasant in Mason county by D. W. Polsley, its attorney, and filed a certificate of the council of said town showing, that a change had been made in the manner required by law in the corporate limits thereof, and that by such change the said corporate limits are as follows: Beginning.” * * * “It is therefore ordered, that said change in said corporate limits be and the same is hereby, approved and confirmed; and the clerk of this court is ordered to deliver to the said council a certified copy of this order as soon as practicable after the rising of this court.”
The prayer of the bill was, that the town be enjoined from collecting any tax on plaintiff’s farm, and that the order of the court enlarging the town boundaries be vacated as illegal and void. An iujuucition was granted.
Plaintiff' filed an amended bill, wdiich seems to he unnecessary, as it alleges mere matter of law or argument. It alleges, that the power to create, alter or amend the charter of a municipal corporation is a high prerogative act of sovereignty; that by the constitution of this state the power to do so is vested in the Legislature except charters of towns of less than 2,000 population, in which case the power is vested in the Circuit Court, and, if the town have more than 2,000 inhabitants, the court would have no jurisdiction ; and that, to render the judgment and order of the Circuit Court valid, there must he a judicial finding on the face of the order$ that the village has less than 2,000 inhabitants, and in its absence the order is on its face void; and charged that this order was void.
There was a general replication to this answer. No evidence was taken. The case was heard on the bill, the answer, general replication and a renewed motion to dissolve the injunction; and a decree was pronounced perpetuating the injunction and vacating the order of the Circuit Court enlarging the boundaries of the town; and the town appeals.
By Code c. 47, s. 47, it is provided, that no special act shall be passed incorporating or amending the charter of any town containing a population of less than 2,000. By section 48 it is provided, that any five freeholders desiring to change the limits of such town may petition the council, setting forth the change proposed, and the council shall order a vote as directed in that section, and, when the result of the vote is in favor of the change, the council shall certify the same to the Circuit Court, which shall enter an order in substance as provided in that section, which order must approve and confirm the change and direct a copy of the order to be certified to the' council, and from the date of the order the corporate limits of the town shall be as set forth in such order.
The plaintiff contends that, as the council and Circuit Court have no power under the statute to alter the charter or limits of a town except in cases of towns with less population than 2,000, the order of the Circuit Court enlarging the bounds of Point Pleasant is void, because it does not ascertain or declare in any manner, that the population was less than 2,000, that being a jurisdictional fact. The Circuit Court is a court of general jurisdiction, and, when proceeding in the exercise of its ordinary common-law powers, it is
We do not deny these principles in proper cases, hut do not think them applicable here. ■ The town-council under the statute exercised the first and most important function in the proceeding. Before entertaining the petition and ordering a vote on the question of change of boundary it should have been satisfied, that the town contained a population of less than 2,000. It must be taken, that it did satisfy itself, that such was the fact. The act requires the result of the vote to be certified to the Circuit Court; and without requiring the court to make any inquiry, give any notice or citation or take any further steps in the matter, it declares, that said court “shall thereupon enter an order in substance as follows : A certificate of the council of the city (or town or village, as the case may be) of-was this day filed, showing that a change has been made, in the manner required by law, in the corporate limits thereof, and that by such change the corporate limits thereof are as follows: Beginning, etc. It is therefore ordered that said change in said corporate limits be, and the same is hereby, approved and confirmed, and the clerk of this court is directed to deliver to the said council a certified copy of this order as soon as practicable after the rising of this court.” The court is required to enter that order. Nothing further is required of it by the statute. It has but to see, that the certificate from the council is such, as the statute requires to enable it to em
Has the town the right to tax this farm? Where the corporate limits include rural or agricultural lands, never divided into town-lo.ts, not needed or capable of use for town-lots, and receiving no direct benefits from the municipal government or expenditures, questions have arisen in the courts as to the right to subject such lands to ordinary municipal taxation. The power to fix or enlarge the corporate limits is not disputed; but the power to require such lands to contribute to the municipal treasury has been controverted. In Kentucky the principle has been adopted, that the “courts will in such cases control and limit the taxing power to that point or line, where it ceases to operate beneficially to the proprietor in a municipal point of view.” The general rule there is, that the right to tax for real municipal purposes extends only to‘such land as has been surveyed and divided into lots, but the right to tax may under circumstances extend, to property, which has never been surveyed and divided into lots. Cheaney v. Hooser, 9 B. Mon. 330; Sharp v. Donovan, 17 B. Mon. 177; Covington v. Southgate, 15 B. Mon. 491. 2 Dill. Mun. Corp. § 794. Iowa has, followed the Kentucky rule in several cases. Morford v. Unger, 8 Ia. 82; Butler v. Muscatine, 11 Ia. 433. These cases proceed on the theory, that no benefit accrues to the owner of the land from the corporation; but, as Justice Miller says in Kelly v. Pittsburgh, 104 U. S. 78, of the owner of the farm, it may be true, he does not receive the same amount of benefit from some or any of these taxes as some living in the heart of the city. It is probably true, that his tax bears an unjust relation to the benefits received. But who can adjust with precise accuracy the amount, which each individual in an organized civil community shall contribute to sustain it or insure absolute equality of burdens and fairness in their distribution ?
But it is plain that the Kentucky and Iowa rule is, as Judge Dillon in Municipal Corporations, § 594, and Judge Cooley in Constitutional Limitations, 501, remark, arbitrary, and the obstacles in the way of the practical application are almost insurmountable. Each case would turn on its own facts and be a rule only unto itself. There is no fixedness of principle in it. It would be productive.of endless litigation. It would run counter to Code 1887, c. 47, s. 31, that the tax-levy shall be “on all real and personal estate therein (in the town) subject to state and county taxes,” leaving it to the courts to exempt some property, while other property is taxable. The rule has been repudiated in Mississippi, Martin v. Dix, 52 Miss. 53; also in Maryland, Groff v. City, 44 Md. 67; also by United States Supreme Court in Kelly v. Pittsburgh, 104 U. S. 78; also in Nebraska, Turner v. Althaus, 6 Neb. 54. I think it contrary to'the principle of Powell v. City of Parkersburg, 28 W. Va. 698. Though in that case this particular question and the conflicting authorities upon it were not discussed, yet it was an effort to release from city-taxes three acres of land used for agricultural purposes, not laid off into streets and alleys and lots, or in any manner connected with city-property, and the court held the broad principle, that the city could under Code, c. 47, levy taxes upon all real and personal property within its corporate limits
It seems, that under this -extension Point Pleasant has an area of 1,228 acres. It seems hard, that the plaintiff’s farm separated from the town proper by two other large farms and not likely to derive any benefit from inclusion within it should pay municipal taxes. • Apparently objectionable in some instances as is 'this practice of extending corporate limits over large areas of agricultural lands for no other purpose than to gather taxes, yet the courts are powerless to afford relief. It is the voice and power of the people applied under authority granted them by the Legislature; and the only relief must come from better legislation on the subject ■
The appellant insists that the sole object of the extension was the imposition of taxes, which he denominates “fraud,” and asks relief under that head. But fraud can not be imputed to the Legislature in the passage of an act, so as to overthrow it. Cooley, Const. Lim. 187, and note 1. Neither can a court impute fraud and corrupt intent to council and people in acting under color of law. 1 Dill. Mun. Corp. § 311. For reasons stated in the opinion in Powell v. Parkersburg, supra, I think equity had jurisdiction in this case.
. The decree of the Circuit Court must be reversed, the injunction dissolved, and the bill dismissed with costs to defendant in both courts.
ReveRSed. Dismissed.