85 W. Va. 578 | W. Va. | 1920
The charter of the City of Wheeling, granted by the General Assembly of Yirginia in the year 1836 and afterwards amended by that body and by the Legislature of this state from time to time, and finally at the regular 1919 session, provided in the amendment adopted that year for an extension of the territorial boundaries of the city, subject, however, to the approval of the electors duly qualified to vote and voting at the election thereby
In their original bill plaintiffs upon the facts alleged by them therein sought but failed to obtain from the circuit court of Ohio County, or the judges thereof sitting together in vacation, an injunction to prohibit defendants from holding and ascertaining the result of the election later held and conducted to determine the will of the voters respecting the incorporation of the proposed new territory within the corporate boundaries of the city. Afterwards plaintiffs amended their bill and therein alleged the same and other supplemental facts and circumstances disclosed by the changed conditions due to the election held in the interim and at which the voters assented to the enlargement of the corporate area of the city; and in addition to the relief asked in the first instance, so far as available in the second, again sought and failed to obtain a decree to enjoin defendants from making further preparation for perfecting the annexation, and assuming official management and control of the included territory and the incorporated towns therein located, and appropriating to the use of the city their treasuries and other property owned by them; and from admitting Charles H. D’ow-ler and Arthur C. Stifel, elected to represent such new territory, to membership in the city council; and in general from doing or performing any other act or acts to cause to cease the right
Of the two questions raised for the purpose of impeaching the validity or regularity of the passage of the bill amending.the charter, one relates to its title, the other to the constitutional requirement for three successive readings thereof in the House of Delegates. Mr. Weiss of Ohio County, the patron of the bill, known in the journal of that body as House Bill Ho. 152, introduced it in the House, of which he was a member, wherein it was read by its title, referred to and amended by the Committee on Counties, Districts and Municipal Corporations, and by it reported to the House with the recommendation that it do pass, wherein it was read as so required and ordered to its second reading. While pending on the second reading the author moved, and the House concurred in the motion, to substitute in lieu of the bill then pending what plaintiffs argue is an entirely new bill, having a different title and dissimilar provisions, thereby rendering the latter so obnoxious to the purposes of the former as to constitute it a new and distinct bill, one which cannot avail itself of the reading theretofore had of House Bill Ho. 152, but which must itself conform to the constitutional requirement for three successive readings.
The title of House Bill Ho. 152 was: “A bill to amend and re-enact section 2 of chapter 21 of the acts of 1915 (‘Greater Wheeling Charter’), and approved by a majority of the voters of the city of Wheeling at an election held” for the purpose. That of Substitute House Bill Ho. 152 was: • “A bill to amend land re-enact section 2 of that part entitled ‘Greater Wheeling
Section 2 of the Greater Wheeling Charter, referred to in both bills, provided the procedure for enlarging the boundaries of the city, which was to be done only by and with the consent of a majority of the qualified voters of the territory proposed to be annexed, and in the case of a municipal corporation requiring its separate consent by majority vote. House Bill No. 152 continued and enlarged the general provision for the extension of the boundaries of the city from time to time, by proper resolution of the council thereof and election held thereunder, and retained in substance the provision of the original section providing against the annexation of territory of • municipalities without their separate consent by majority vote. The substitute bill, however, repealed the original section 2 and provided for a special election for extension of the city’s boundaries within certain defined limits; without continuing the general authority theretofore, existing to extend from time to time, and further providing for the annexation of all the defined territory in case a majority of all the votes cast, both in Wheeling and in the territory proposed to be annexed, should be in favor of annexation.
There is, it is true, as counsel say, some disparity between the titles. They are not the same, but are they so utterly dissimilar and variant as to warrant a declaration of the invalidity of the title of the substitute? A careful examination and comparison of the titles does not disclose or reveal such inconsistency between them as subjects the latter to condemnation on that account. Both indicate a purpose to make changes in the provisions of section 2 of the Greater Wheeling Charter of 1915, an inspection of which shows that it relates to the manner and pro
Plaintiffs further object to the sufficiency of the title of the substitute because of its failure to show, as one of the objects of the proposed amendment of section 2, the annulment of the charters and powers conferred upon the incorporated towns lying within the superadded territory and their incorporation into the City of Wheeling. But the title of the substitute did give full and ample notice; at least such notice as is usually deemed sufficient, to warn plaintiffs and others similarly situated and on whose behalf they sue of an intention to alter the provisions of section 2 of the charter known to relate to the extension of boundaries, and an investigation of the bill based upon such warning would have disclosed an intention to annex to Wheeling the territory therein specifically identified. The title of the act involved in Roby v. Sheppard, 42 W. Va. 286, (Chapter 63, Acts 1895) amending and re-enacting the charter of the City of Benwood, was no more specific than the title here in question, yet it was sustained as sufficiently broad to warrant taking from another town part of its territory and population and annexing it to the city of Benwood. See also Attorney General v. Amos, 60 Mich. 372. Plaintiffs and those in behalf of whom they complain thus had the source of information and knowledge sufficient to show a purpose to effect,- with the approval of the voters, the total annulment of the rights of the officers and agents of these towns to exercise the powers conferred upon them by virtue of their incorporation. They knew such must be the immediate and inevitable consequence and effect of the extension of the corporate boundaries of Greater Wheeling, if and when the voters approved it. The title of an act need not reveal the legitimate and inevitable consequences of the duly authorized enlargement of the boufidaries of'cities, towns and villages. As said in Heath v. Johnson, 36 W. Va. 782: “When the title of an original act of the legislature sufficiently expresses its object in the manner required by the Constitution, an act 'amendatory
Nor is there merit in the contention that the title fails to state the purpose of the bill to repeal section 2 and in lieu thereof to enact another to be known by the same designation. The statement of a purpose to amend and re-enact is sufficient to include the former, for there is no substantial difference in result whichever course is followed. The operative effect of the old law ceases, if amended and re-enacted in toto, with the same promptness and result as if it is repealed and a substitute enacted.
Then again counsel criticize the omission of part of a verb from the enacting clause of the bill which provides that section 2 “be and the same is hereby repealed and a new section be and is hereby in lieu thereof, to be known as section two, as follows.” This leads to the inquiry whether the omission of some word in the clause, charged by plaintiffs to be fatal, is indeed fatal? We do not so consider it. The insertion of the word “enacted” between “hereby” and “in”, so as to make the clause read, “and a new section be and is hereby enacted in lieu thereof,” or the insertion of some other word having an equivalent meaning, would render the clause clear and unequivocal. But even without such word, when the words “be and is” receive due emphasis in connection with the phrase “to be known as”, the language is sufficiently clear for all necessary purposes.
The irregularity relied on and urged in argument as a ground for the award of the injunction prayed for by plaintiffs is, as we have seen, the failure to read in the House three times, in as many succeeding days, the bill introduced and adopted in lieu
By the action of the House 'the substitute took the place and position occupied by the bill it supplanted. It thereby became the only bill and operated as an amendment of the former. The mere absence of' the words, “substitute in the nature of an amendment,” does not have the significance imputed to it by plaintiffs. Every substitute is of such nature if germane to the original bill. A bill amended in whatever form is advanced to a higher, not relegated to a lower or subordinate status, except by the adoption of a motion to that effect. As disclosed by the journal, said bill, “on second reading, coming up in regular order for consideration, Mr. Weiss moved the following ‘Substitute House Bill No. 152’ be substituted for and in lieu of House. Bill No. 152,” and after unsuccessful motions to recommit and to lay over, “the question recurring upon the motion of Mr. Weiss to substitute for and in lieu of House Bill No. 152 ‘Substitute House Bill No. 152,’ the same was put by the chair and prevailed. The Bill (Substitute House Bill) was then read a second time and ordered to its ehgrossment and third reading.” The action of the House seems to conform with the rule prescribed by the authorities, and to settle beyond doubt the question relating to the regularity of the passage of the bill amending the city charter.
As somewhat but not entirely analogous in its facts Smith v. Mitchell, 69 W. Va. 481, Ann Cas. 1913 B, 588, furnishes ample illustrations of the propriety of the application of the rule regarding the substitution of one bill for another, when
And the court quotes the following with approval from Miller and Gibson v. State, 3 Oh. St. 475: “But for argument’s sake, let it be admitted that the bill as amended was read but once in the Senate; is the act for that reason void ? That, counting two readings before the amendment and the final reading, the bill was read three times, is conceded, for these readings are shown by the journal, and it is conceded that, in general, three readings of an amendment are not necessary. But inasmuch as the amendment in this cáse is styled in the journal a ‘Hew Bill,’ it is said that three readings were necessary.' Why necessary % The amendment was not the less an amendment because of the name given it.r It is not unusual in parliamentary proceedings to amend a bill by striking out all after the enacting clause and inserting a ‘Hew Bill.’ When the subject or propo
The inaptness of the decision in Smith v. Mitchell is apparent, according to the able argument of counsel for appellees, because of the difference between the facts of the two cases. There the substituted bill was identical in title and content with the Senate bill whose place it took; here it was not so identical. Appellants admit, as wo understand, that had not the substitute carried a different title, and had its author caused its contents to be inserted under the title and enacting clause of the original bill, the proceedings in this respect at least would have been less irregular. This the House did not do, but accepted the substitute and its own title and enacting clause. Just what difference, if any, this makes is not clear, because the usual course pursued in respect to the title of a bill is to defer alterations or changes in it to conform with the objects and purposes of the bill until it has reached the final stage of its passage; and such deferment in effect occurred. For as appears on pages 556 of the House journal and 657 of the Senate journal, the substitute “was read a third time and passed with its title.” By these acts the. title was approved, thereby validating whatever may be said regarding its original status.
From what has been said the conclusion readily comes that a substitute bill or amendment, if so germane to the original bill as to be a proper substitute or amendment; does not have to go back and be read three times, but may include as part of its required readings those had before the substitution or amendment was made. Capito v. Topping, 65 W. Va. 587, pt. 9, Syl; Smith v. Mitchell, supra, 69 W. Va. 481; Brown v. Road Commissioners, 173 N. C. 598; Southern Ry. Co. v. Memphis, 126 Tenn. 267; Attorney General v. Amos, 60 Mich. 372; Southern Ry. Co. v. Mitchell, 139 Ala. 629. Was there such disparity or lack of harmony as constitutes grounds for the charge that the provisions of the substituted bill were not germane and relevant to those of the original or displaced bill, and therefore not a proper amendment of the latter? Their provisions are not the same, but sameness is not essential. Provisions wholly
Another ground urged to show plaintiff’s right to a reversal of tbe decree complained of is tbe nullification of tbe charters of the towns located within tbe territory so incorporated into tbe City of Wheeling, in violation of section 39, Art. 6 of tbe Constitution, which prohibits tbe legislature from amending by special act tbe charter of any city, town or village containing a population of less than two thousand inhabitants. But nothing in our Constitution prohibits “tbe legislature from passing a special law repealing the charter of a municipal corporation, or uniting tbe territory of several municipal corporations, and thus repealing their former charters.” South Morgantown v. Morgantown, 49 W. Va. 729. In tbe case cited an act of tbe legislature (chapter 144 Acts 1901) creating a new corporation to include all'the territory theretofore covered by four towns was sustained. Many of tbe issues raised and elaborately discussed by counsel representing both parties to that contro
A further question is likewise urged upon our attention by plaintiffs, namely, that of the sufficiency of the resolution providing for, calling and giving notice of the election upon the
Of course, if notice is not given substantially as and when required by law, and it appears that by reason of the omission a fair opportunity was not afforded the électors to vote, the election cannot stand where the result might otherwise have been different. Hill v. Skinner, 169 N. C. 405. But here notice was given substantially, as required by the statute. Though of the total voters, shown by a previous registration to be 11,634, less than a majority voted in favor of the proposition, it does not appear that any qualified voter failed or refused to vote because of the inadequacy of the notice. The total vote cast seems to have been as large, if not larger, than is customary at special elections, and there further appears the extreme inclemency of the weather on election day due to an incessant downpour
In 9 R. C. L. 992 this statement occurs: “Frequently irregularities (in the giving of notice) occur in following statutory requirements and the validity of the election is brought into question.” After a discussion of the rule applicable to general elections the author continues: “It is equally clear in the case of special elections, wherein the necessity for notice is so much more urgent, that the rule as to compliance with statutory requirements in the giving of notice should bo much more strictly enforced. Considerable liberality, however, is allowed even in these elections, and it is a rule of pronounced authority that the particular form and manner pointed out by a statute for giving notice is not essential, provided, however, there has been a substantial compliance with statutory provisions.” In line with this policy also are: Hill v. Skinner, cited; State v. Salt Lake City, 35 Utah 25; Seymour v. Tacoma. 6 Wash. 427; State v. Doherty, 16 Wash. 382; Wheat v. Smith, 50 Ark. 266; Staple v. Astoria, 81 Or. 99; Patton v. Watkins 131 Ala. 387, note, 90 A. S. R. 43, 71; State v. Town of Westport, 116 Mo. 582; Com. v. Smith, 132 Mass. 289; Adsit v. Osmun, 84 Mich. 420; 10 Am. & Eng. Enc. Law, 626, 631. See also Grffith v. County Court, 80 W. Va. 410.
The crucial point, the one urged with most emphasis by appellants in argument, is the alleged incompetency of the notice purporting to advise the electors resident within the City of Wheeling of the impending election to ascertain their will upon the question about to be submitted to them for decision. The charter as amended did not definitely prescribe the date of 'the election, but required that it be held “not before October 1, 1919, and not later than December 1, 1919,” and authorized the city council to specify the exact date therefor. This they did by resolution appointing November 26, 19.19, for that purpose. The act itself amply warned the electors, not only in the territory to be annexed, but also in the City of Wheeling, of a prospective demand for an expression of opinion upon a subject in which their interests were about to be affected as residents and property owners, and to be aware of the time
For the reasons stated we affirm the decree without further discussion.
Affirmed.