125 S.E. 353 | W. Va. | 1924
B. G. West and several other inhabitants of a territory comprising 247 acres lying on Elk Creek in Harrison county, proceeded to incorporate the territory as a municipality under the name of "Nutter Fort," under chapter 47 of the Code. On May 26, 1923, they presented to the circuit court a verified petition showing that the provisions of chapter 47, Code, relative to the preliminary steps to be taken for the incorporation of a city, town or village under that chapter, had been complied with, exhibiting therewith a survey or map of the territory, a census of the resident population therein, notice that they would apply for a certificate of incorporation to the circuit court on the day stated; the posting of the notice at three of the most public places in such territory; and the result of the election duly held among the inhabitants of the territory in favor of and against the incorporation thereof, and the result of the election; and prayed for an order directing the clerk to issue a certificate of incorporation. The West Virginia Fair Association, a corporation, William G. Kester, George W. Mills and others appeared and offered to file a joint and separate answer and remonstrance, duly verified, to the said petition.
The main issues raised by the petition and exhibits and the answer and remonstrance are: (1) that petitioner did not sufficiently comply with the statutory requirements for incorporation; and (2) that the facts and circumstances shown by the answer and remonstrance required the court to exclude from the territory to be incorporated, the lands of Mills and Kester and the land of the West Virginia Fair Association. Numerous affidavits were filed in support of the petition and the regularity and sufficiency of the steps taken to comply with the statutory requirements by petitioners; and numerous affidavits filed by the remonstrants in support of the allegations of the answer. Upon consideration the court, on the 30th day of June, 1923, entered an order directing that a certificate of incorporation be granted to the town of Nutter Fort, restricting the territory as originally proposed by excluding 14.21 acres of land lying at the extreme western end owned by G. W. Mills, and also excluding *12 a tract of 4.8 acres of land owned by W. G. Kester lying on the extreme southern end of the proposed territory; and finding that all the provisions of law had been complied with in order to obtain the certificate; and setting out in the order the territory incorporated by metes and bounds, courses and distances. The order appointed commissioners to hold the first election within the town, within sixty days from the date of the certificate. It will be noted that a portion of the lands of Kester and Mills and all of the land of the West Virginia Fair Association (which contains 38 1/2 acres) were included within the corporate limits. The remonstrants excepted to the judgment of the court and the exceptions were incorporated in a bill of exceptions signed by the judge and made part of the record. The order was suspended pending application for a writ of error and supersedeas, which was granted.
Has this court power to review the decision of the circuit court in granting a certificate of incorporation as provided in chapter 47 of the Code? This question is not one of first impression. In the case of In re Town of Union Mines,
On the question of the power of the courts to review proceedings for the formation of municipalities, it is quite generally held that the incorporation is not a judicial but a ministerial proceeding, and a court conducting the proceedings under legislative authority exercises the special ministerial functions conferred by the legislature, rather than the judicial powers derived from the constitution and general laws, and a proceeding for incorporation or the order or decree *16
therein is subject to review on appeal, writ of error or otherwise only when, and in the manner, especially provided by law. 28 Cyc. 168, and cases cited in the foot note, including our case of In re Union Mines,
"Questions of fact bearing on the expediency of the proposed incorporation are usually committed by the law to the court or tribunal hearing the application, and ordinarily appellate courts have no authority to review the exercise of that discretion except where an abuse of discretion is distinctly charged and clearly established, or where there is some illegality in the proceedings disclosed by the record."
And adverting to the discretion vested in the circuit court to determine (1) whether a charter shall be granted; (2) and if granted, the exact extent of the territory to be included, we again note that no provision is made for review by this court. Perhaps the discretion of the circuit court in passing upon the proofs that all of the preliminary steps required have been taken by the applicants, such as making an accurate survey and map, taking an accurate census of the resident population of the territory, affording opportunity to inspect the map, survey and census, and giving notice of the application to all parties interested in the proceedings where full information can be obtained at seasonable hours, giving notice that an election on the question of incorporation will be held; and certification of the result of the election duly held, in short, the performance of all prerequisite, preliminary steps; and the discretion to grant the charter and fix the exact boundaries, are not arbitrary; and if there has been an abuse of discretion, it may in a proper proceeding be reviewed and corrected. Whether the proper procedure has been followed, we will not stop to discuss; the case is here, and should be adjudicated without further costs.
Protestants say: (1) that an accurate survey and map of the territory was not made as required by the statute; and (2) that opportunity for inspection of the survey, map and census was not afforded in the statutory manner. The survey *17 and map describe the territory to be included by metes and bounds, but it is contended that the notice posted by the petitioners as required by statute also attempted to give the courses and distances, and these do not correspond with those on the map; for instance, in the notice one course is given as "N. 7° E. 1770 feet", whereas on the map it is "N. 7 E. 770 feet;" and one line along Elk Creek in the notice reads: "N. 25° E. 503 feet," whereas the map shows, "N. 23° E. 503 feet" to a stake on the south side of Nutter's Run, thus making a variance of two degrees in that line. An inspection of the map and notice would reveal to any voter or any person interested in the proceeding that there was a clerical error, and they could not be misled as to the boundaries of the territory to be included. The court treated it as a clerical error and made the corrections accordingly. It will be remembered that the statute gives to the court the discretion to fix the exact extent of the territory. The voters are bound to know that the court might do so. The survey, map and census, completed and verified, were left at Taylor's garage on Pennsylvania Avenue within the territory, and it is contended that this was not the place of business of a person residing within said territory, and was not subject to examination at all "seasonable hours." Affidavits filed are to the effect that these papers were subject to the inspection of any one interested, at all "reasonable hours." There is little distinction between "reasonable" and "seasonable," affecting the intent of the statute. The number of voters in the territory was 728, the number voting on the question of incorporation, 504; of which 448 were in favor of, and 56 against, incorporation. The notice must have substantially served its purpose. The notice was posted at Corbit's store, Wamsley's store and at the Fair Ground gate for the statutory time, and protestants say these were not three of the most "public" places. The affidavit of those who posted the notices says these places are three of the most "prominent" business places within the territory. The affidavits conflict on the question of the relative publicity of these places with other places. The court did not abuse its discretion in holding that notice of the election was sufficiently given. The number of votes cast indicates that the people had full notice. *18
It is earnestly asserted by protestants that the court clearly committed error in not excluding the lands of Kester and Mills, and especially the lands of the West Virginia Fair Association. It is pointed out that there are but two residences, one the caretaker, on the 38.5 acres used as a place for holding fairs for the benefit of the people of Harrison and surrounding counties, and that the legislature, when it enacted that the territory should not be more than a reasonable amount proportionate to the number of residents therein, intended that such tracts, not immediately or prospectively to be used for residential purposes, should be excluded. The same contention is made as to the tracts owned by Mills and Kester. By reference to the affidavits and map it is seen that the lands of the Fair Association lie within the proposed boundaries and on each side of which and near to which there are a large number of persons residing. We think it was peculiarly within the discretion of the court to decide under all of the circumstances that these lands should be included. A portion of the farm lands were excluded. There can be no question but that the court was authorized in its discretion so to do. The land of the Fair Association has been used for many years for holding fairs and when the fair grounds were first located and improved very few persons resided in the near vicinity. It is contended that the corporation authorities will levy burdensome taxes upon the land for municipal purposes and will exact license taxes from the concessions which are carried on within the grounds, and it will be impossible for the Association to continue to operate its property, on account of these burdensome taxes. On the other hand, many affidavits are to the effect that the fair grounds are used about four days in each year for purposes of holding fairs; and that during the remaining portion of the year the grounds are used as a park where dance halls, carnival shows, and amusements of various kinds are carried on, including baseball, football and like games; and where disreputable people assemble for drinking intoxicants and for immoral purposes, both by day and night. The census showed that there were 1521 persons living within the 247 acres sought to be incorporated, of which 728 persons were voters. Evidently the court took into consideration that taxation for the conduct *19 of the affairs of the municipality would be equal upon all persons and properties within the corporate limits; and that while the burden of taxation might be heavy it would rest uniformly upon all; and no doubt it took into consideration the welfare of the large number of people affected, and, using its discretion expressly granted by the statute, decided to grant the charter.
Under all these circumstances can we say the action of the court was capricious, arbitrary and unwarranted? This is the crucial question which would be presented to us upon whatever procedure might be taken for that purpose. Upon a careful reading of the entire record, we have come to the conclusion that the court has not abused its discretion and that we cannot disturb its order directing the charter to issue.
Affirmed.