120 Va. 177 | Va. | 1916
delivered the opinion of the court..
This is a proceeding upon petition under the statute, filed by the city of Newport News in the Circuit Court of Warwick county, for the annexation to the city of certain territory belonging to the county of Warwick, described in an ordinance adopted by the council of the city, and pursuant to the provisions of the statute in such cases made and provided, the Governor of the State designated the Honorable Thomas W. Harrison, judge of the seventeenth judicial circuit, to hear the case and to determine the issues therein.
At the final hearing of the cause the learned judge presiding filed with and made a part of the record a memorandum of opinion succinctly summarizing the evidence in the case, and stating the facts deducible therefrom so clearly and fully that we deem it unnecessary to attempt to again
“There is little or no controversy in the testimony on any essential point. The facts may, therefore, be very briefly summarized.
“The city seeks to annex a large tract of land interposed between its eastern line and-the water front. The population of this territory is given in the city census, which by its particularity challenges criticism and invites detection of error, at about nineteen hundred, of which sixteen hundred are congested along certain so-called streets or avenues, notably Twentieth street, Ivy avenue and Madison avenue, in the northern portion of the territory, and three hundred in a settlement known as Dawson City in the southeast portion, to which there seems no access by any public highway. With the exception of about fifteen, the population is negro. Not only is it negro, but embraces some very bad types of that race. Without considering hearsay or reputation evidence, the direct evidence shows that just outside of the city limits negro dance halls, gambling joints and other disorderly negro resorts are maintained, and that neither the negro police justice nor the county police have control of the situation.
“There is but one public highway in the district, about fourteen hundred feet, over which the county assumes any control. The other so-called streets and avenues are not public highways.
“There are no sewers. The county superintendent of roads, in addition to the duties usually pertaining- to that office, is the sanitary officer and supervises the removal of garbage or other unsanitary matter at convenient periods. The county board of health, however, impressed me as energetic and capable men, who discharged their duties energetically within the limits of the resources at their command.
“South of this populated section there is quite a large body of unplatted land. But in this section the city has purchased land, and, at the expenditure of some two hundred and fifty thousand dollars, projected an ambitious scheme of development. It has constructed or has under construction a municipal pier, a small boat harbor and streets or avenues furnishing approaches to its water ways, and holds convenient sites for manufacturing or commercial plants, which it may be able to locate.
“Nor is the unplatted land in a strict sense agricultural land. Neither its assessed nor actual value is predicated on its value as an agricultural investment. Most of it is incapable of cultivation. Its value is the speculative growth of the city capitalized.
“The southern extremity is the railroad property with its valuable improvements. A part of this property is unplatted land, also, but it is evident that it is held in reserve by the railroad, not as .agricultural land, .nor for that matter as town lots, but for the particular uses of its railroad or terminal purposes. This section is entirely unpopulated except as it may be infested with vicious transients who seek a safe cover for crime along the water or midst the railroad structures.
“The railroad finds it advantageous to have certain of its employees clothed with police powers, but, I take it, as the evidence tends to disclose, that these police agents are naturally disinclined to interfere except as the railroad interests may require it. The railroad also maintains a road or street to its terminals.
“After a careful consideration of the entire evidence and a personal inspection of the territory, I am firmly convinced that under further county control there is little hope for any
“In all annexation proceedings it is necessary to view the proposal from the viewpoint of the State, the city, the county and the territory to be annexed.
“The interest of the State lies along the line which promises the great development. In this case, with the exception of the railroad company, it is hard to understand why the annexed territory should not be greatly benefited. Much of the revenue collected from this territory is now expended in other sections of the county, but, if annexed, under the law, for five years, the entire revenue must be expended in the annexed territory. The railroad company would be benefited by the increase of traffic in case the plans of the city are successful.
“The county does lose some revenue, and I have earnestly considered if the lines could be so drawn as to avoid this, but it seems impracticable. If the .line be drawn so as to leave the railroad property in the county, it would mean that this property, in no sense agricultural, abutting upon the city and calling for police supervision, would be entirely segregated from the rest of the county. Entirely without population, a great commercial agency, a shipping and transportation terminal, the county could discharge no public duty with regard to it. It would be a taxable asset and nothing else. An additional objection, too, is that all the burdens which the county now discharges, or ought to discharge, to the rest of the territory would have to be borne by the city.,
“In every annexation there is a present loss of revenue to the county, but this is expected to be only temporary. The annexation is supposed to stimulate city growth to the
“The city must pay for the school building, which is valued at $5,000.00.
“The decree should also determine the political status of the inhabitants by assigning the same to some ward of the city. The decree should also fix the day for the same to become effective.
“I have, therefore, concluded to enter a decree annexing the territory on the statutory terms and the terms as to the free schools as herein indicated.”
The decree indicated in the trial court’s memorandum of opinion was duly entered in the cause, to which decree this writ of error was awarded.
The first error assigned is to the action of the trial court “in overruling the defendant county’s motion to quash and dismiss the said proceeding, and in overruling the county’s demurrer to the said petition.”
The proceeding was instituted pursuant to the statue— section 1014-a, Cede 1904 — and clause 1 of the statute provides that, “The council shall declare by an ordinance * * * the terms and conditions upon which it desires to annex such territory, as well as the provisions which are made for its future management and improvement.”
Objection is urged to the ordinance upon the ground that it does not set forth, as required by the statute, “the provisions which are made for its future management and improvement” — having relation to the territory proposed to be annexed.
The ordinance is, to all intents and purposes, substantially the same as the ordinance proceeded upon and called in question in the case of Alexandria City v. Alexandria County, et als, 117 Va. 230, 84 S. E. 630, wherein the court’s opinion says: “This contention is without merit. As we have observed the ordinance is, mutatis mutandis,
The form of the ordinance in question here was likewise taken from the ordinance set out and proceeded upon in Henrico County v. Richmond City, supra, and sets forth the case of the city as fully and as explicitly as was practicable under the circumstances; so that the ordinance in-the instant case, both as to form and substance, has been, twice approved by this court, and no good reason is shown ■ why the court should depart from its former rulings in the-cases adverted to.
The further contention is made by the learned counsel' for the county of Warwick that even if the ordinance itself be sufficiently explicit as to the future management and improvement of the annexed territory, the trial judge has. failed in his order complained of to provide against the-misuse of the taxes and levies to be derived by the city from the annexed territory during the next ensuing five years, as indicated in clause 3 of section 1014-a of the Code, supra, which provides that, “All revenues derived by such . city or town from annexation in said territory during such period (five years), either on property or from other-sources, including licenses, shall be wholly expended by such city or town upon street, sewer, light, water or other improvement in said territory.” This contention, in so many words, is, “the court in its annexation order has not made any limitation as to how the revenues shall be applied; no-person can challenge the discretion or wisdom of the city-
It would be difficult, as it seems to this court, for the learned judge below to have more safely, minutely and carefully guarded the rights, present and future, of the parties to this litigation than he has done in the order granting the annexation of the territory petitioned for by the city of Newport News, and it is to be presumed and relied upon that the authorities of the city will obey the law of the land and abide by the terms prescribed by the final order of the court in the case. The 10th clause of the order of the court is: “That all the terms and conditions set forth in the ordinance approved on the 16th day of July, 1914, entitled ‘An ordinance to amend an ordinance to extend the corporate limits of the city of Newport News in pursuance of an act of the General Asembly of Virginia, approved March 10, 1904, and known as section 1014-a, Virginia Code, 1904, approved April 6, 1914/ are hereby ratified and approved by the court as reasonable and just and are declared to be binding upon the city of Newport News.” * * * And “the terms and conditions set forth in the ordinance” referred to in the 10th clause of the court’s order, in so far as it relates to revenues to be derived by the eity from taxation of property within the annexed territory, or from other sources, etc., are, “That all revenues derived by the said city of Newport News from taxation in the said territory during the first period of five years, either on property or from other sources; including licenses, shall be wholly expended by the city of Newport News upon streets, sewers, lights, water and other public improvements in the territory annexed, provided, however, that at any time within the said five years, the council of the city of Newport News may, by ordinance, set apart a sum equal to twelve per centum of the assessed value at the time of annexation, of the lands annexed, or of such part thereof, as
The provisions of the ordinance are to be read and interpreted in the light of the whole ordinance, as well as of the court’s order of annexation and of the statute, clause 3 of section 1014-a of the Code, supra — and when so read and interpreted they are too plain to admit of an interpretation that would authorize or empower the city council to apply, as the learned counsel for the county of Warwick seem to apprehend, the revenues derived from the annexed territory, during the period of the first five years from the date of annexation, to the improvement of “the small boat harbor,” constructed and owned by the city.
The second assignment of error relates to the ruling of the trial court in admitting and considering certain evidence which it is alleged was improper and “of a character so intangible as to be not capable of being rebutted;” but this assignment does not call the court’s attention to any particular evidence as improperly admitted, and has not been argued, either in the petition for this writ of error or the brief of counsel, and, therefore, it is to be presumed that the assignment is waived.
The third and only remaining assignment of error calls in question the ruling of the trial judge upon the merits of the case.
As will appear upon a reading of the opinion of the presiding judge, quoted above, he did not attempt to analyze the evidence introduced, but the opinion as well as the order entered thereon shows that he considered carefully the entire evidence, including maps, documents, records and exhibits, besides personally viewing the territory sought to be annexed, and the record in the case has been given a most
It is also pressed upon us with much earnestness that the taking of this territory from the county of Warwick and annexing it to the city of Newport News would result in a serious reduction of the present revenues of the county derived from taxation, and that the city desires to annex this territory solely for the purposes of revenue. We do not think that the evidence in the case bears out either of these contentions. A few of the answers given by the mayor of the city, when testifying in the case might, if read alone, be construed so as to bear out .somewhat the second of these contentions, but when the whole of the witness’ testimony is read, a fair interpretation of it is, as it appears to us, merely that the city should annex this territory for the
“In passing upon the question of whether an ordinance making an extension of the limits of a municipality be reasonable, the jury must consider the proposed extension as an entirety. The question is not whether each and every portion of the territory included in the proposed extension should or should not, if considered separately of and by itself, have been included, but whether the action of the authorities, in view of the conditions confronting the municipality at the time of the adoption of the ordinance of extension, should be sustained. Nor is the question of the return of revenue which the city may receive from the territory embraced in the extension any criterion by which to judge the reasonableness of the ordinance. Municipalities are not devised for the purpose solely, nor chiefly, of raising revenue. The power of .extending corporate limits is granted not to be resorted to for the purpose alone of increasing the income of the municipality, but in order that the benefits incident to civic government may be extended to those resident in the territory adjacent to the municipality and included in the extension; andj further, that the municipality by extending its police government, its sanitary and quarantine regulations, and its more adequate fire protection, may thereby conserve the best interests of the
It is perhaps true, as is usually the result in these annexation cases, that there are some portions of the area embraced within the boundaries of the territory annexed that may not be needed by the city “in the reasonably near future for development and expansion,” but a proposed extension of the limits of the boundaries of the city has to be considered and determined as a whole, and unplatted or even marsh lands between that which should be annexed to the city must of necessity be taken in, which fact does not render the ordinance making the extension unreasonable. 1 McQuillin Mun. Corp., sec. 278; Alexandria v. Alexandria County, supra, and authorities there cited. When the instant case is so considered, the unplatted or marsh land and other unoccupied or undeveloped properties lying within the boundaries of the territory annexed to the city, as fixed by the trial court’s final order, could not have been, as it appears to us, reasonably excluded, especially in view of the peculiar conditions shown to exist within the annexed territory and as to the existence of which there is, in fact, little or no dispute. The conditions referred to are so tersely and plainly stated in the opinion of the trial judge, quoted above, that it is deemed needless to attempt to describe them further here. Suffice it to say that, viewing the proofs in the case from the point of the State, the city of Newport News, and the citizens or owners of prop-
The order of the trial court provided that the annexation therein determined upon should take effect and be in force from and after the 31st day of December, 1914, but by reason of the suspension of that order during the pendency of this appeal, it becomes necessary, in order to avoid confusion, to change the time at which the annexation shall take place and to amend or modify the seventh clause of the order; therefore, it will be provided by this court that the annexation shall take place and be in force from and after the 31st day of December, 1916, and that clause 7 of the order of the trial court be modified so as to read as follows:
“7. That all taxes and licenses accruing during the year 1916 in the annexed territory, and all years prior thereto, shall be payable to and collected by Newport district and the county of Warwick.” Subject to these modifications the judgment of the circuit court is affirmed.
Affirmed,.