*1 con- them of a waiver recognize not hence will one. the constitutional' all issues other sideration rules, questions constitutional these “In accordance with case, abstractly hypothetical or in determined be will for determina- necessity in advance or anticipated will no consideration thereof, generally, so that tion from the resulted yet has as if no injury undertaken brought have been rights and no of the statute application ** S., J. 16 C. operation, threatened within actual or effect To the same Law, 94. Section Constitutional Law, 93. Jur., Am. Constitutional dis- indicated, respectfully I herein of the views Being sent. concurs Riley Judge say
I am authorized dissent. et al.
H. W. Wiseman, al. et Calvert, Carl (No. 10235) 4, 1950. April Decided January Submitted 1950. *2 Given, Judge, dissenting.
Spilman, Thomas & Battle, Kay, H. C. Frank Robert T. Litton, Neff, Harold H. Klostermeyer, Howard R. for pe- titioners. McCabe,
Charles P. McCabe, McCabe & for defendants. Judge: Haymond,
This original proceeding prohibition involves power and the authority County Court Kanawha County to issue a certificate a incorporation to munici- pality to known Belle, City comprising an area slightly square excess of one mile and containing approximately residents, 2353 to 2500 in Malden District of- county. The individual petitioners, H. W. Wise- man, Elliott, M. Burgess, Fauber, F. James M. Jr., G. C. Mayme Shock, Elliott and H. E. qualified residents and area, voters of the western of the portion in behalf of themselves numerous other adult of that residents area, part Auto-Park corporate petitioners, Theatre, Inc., Belle Alkali du Company, E. I. Pont de Inc., Givaudan-Virginia, Nemours New Company, York Central Railroad and Toledo and Company Ohio Railway Central the owners and the Company, operators, tracts land large devoted operators, various in a industrial, large railroad or business uses portion area, of the seek a in the central section territory defendants, Carl Court prohibit writ from this Jr., Slack, M. commis- Calvert, Mont Cavender and J. and all county representatives ap- sioners of the court act for it in con- or authorized that court pointed munici- proposed nection with the Smithers, Fidler, Givens, B. and R. F. H. S. pality, Dayle Martin, Peck, Fletcher, B. Frances Elijah Nancy H. L. ¡Hector Frame, Garten, Ira Ferine, Thompson, Albert Smithers, Pauline Rotenberry, Gray, B. Margaret James Seacrist, petitioners Hunter and A. Hoyt W. Belle, proposed City certificate of' for the 17, 1949, in pro- filed on October and un- is now ceeding pending for that purpose action in determined, pro- from further taking any other than it. ceeding to dismiss for a writ of Upon filing petition of the verified *3 Court, this on December awarded prohibition the day rule On January returnable 1950. that de-. in the the other Dayle petitioners fendants R. Fidler and filed their written the proceeding county before answer, veri- duly several joint demurrer and their and oral and the and the fied, these briefs upon pleadings and answering and the of the arguments petitioners behalf was submitted defendants, this respectively, proceeding for decision. in- to the was proceeding incorporate Acts Chapter court under county
stituted in the Session, which Legislature Virginia, of West Code, 1931, Chapter reenacted Article amended and codes, was which, 47 of earlier Chapter the as substance far In so years. many in this State for in force and effect in this proceed- questions presented relate to the they statute, the prior to the amendments ing, principal act, vested the 8, Code, by present effected which of incorporation, certificate to issue a authority the court, the circuit the conferred former statutes territory involved the in which county court of the county is located. The proceeding was matured for hearing in the provided manner by and 4 of Chapter Sections 83 of the and, of 1949 at hearing 17, 1949, Acts the on October Wise- man and the other individual and the petitioners corporate in this petitioners, the proceeding, appeared and opposed incorporation on the same substantially grounds on which seek they the They writ Court. prohibition either demurred to answered the petition court, challenged sufficiency statute, its under at- the the statute, tacked the and the constitutionality denied right court, the county because of the character and the relative locations of the area, various sections of the the different to devoted, uses are they and the number and the territorial distribution of the residents boundaries, within the proposed issue certificate as a territory municipality. They filed, in also the form of petitions alleged contain the of a signatures large of adult number residents of each of area, the éastern and western sections the protests large against of a number of persons these proposed sections municipality.
The county objections court overruled all to the in- corporation and granted petition to in- prayer and, order corporate entered November found and that provided amount to be territory proposed incorporated as shown map survey filed the petition, with was disproportionate number residents; accurately that map survey showed and described territory to be incorporated; subject .that were they examination in the manner and law; for the time prescribed by the boundaries were territory correctly shown courses dis- tances indicated on the requirements map; *4 83 of the Acts of the Session, had been with all complied respects. county court further ordered that a De- census be taken on 16, 1949, and that an on January cember election be held 17, 1950, four voting established the terri- places within tory to be and various incorporated, appointed persons voters, census, register qualified take the and to act as commissioners and clerks to conduct the election. The court also provided no census should be taken and no election should be held until a bond costs should be given petitioners seeking incorporation, which bond has been entered into them.
Other than disagreement between the to this parties proceeding concerning the and accuracy map survey, and involved, the size of the area which the peti- tioners this Court allege is 675 acres and answering acres, facts, defendants aver is 703 the material dis- as closed pleadings, bearing upon the character to be territory the use to incorporated, which the devoted, lands within it are and the number the dis- tribution residents the different sections within boundaries, proposed are not disputed. In consequence only questions of law are presented.
The territory sought to be incorporated as the City of Belle is designated “Belle, unincorporated” on road signs placed by the State Road Commission at the east boundaries, and west of the area U. along S. Route 60 which extends generally east and through west it. With- territory, is approximately one-fourth of a mile in width from south, north to and slightly over three miles in length, west, from east are three indi- vidual these, sections. One of sometimes referred to as Belle”, “East in the easterly portion, contains approxi- mately 303 acres of hill and bottom land with 507 resi- dences inhabitants; another, and 1933 sometimes referred Belle”, to as “West in the westerly portion, contains ap- proximately 157 acres of hill and land, bottom with 110 inhabitants; residences third, in the cen- tral portion, contains of hill approximately acres bottom land. This central portion used or held for industrial and in it purposes are located large plants the corporate petitioners Belle Alkali and E. Company I. du Pont de Nemours and Company. There are no resi- dences and regular no inhabitants this industrial area. The hill land in the entire territory situated on its northern side and is to the north of U. S. Route 60 and
line of railroad operated by corporate petitioner, New York Railway Central which Company, through extends the area and runs with the approximately parallel high- The' hill way. land is and steep, largely undeveloped, now contains no streets or The valua- building lots. assessed $8,000,- tion of entire property territory is about which, if included in the and proposed municipality subjected to maximum rates of would levy, produce municipal approxi- revenue in direct taxes property $38,000.00 levy which could mately annually by special $49,000.00 and, annually be increased to approximately further by municipality, the action of the voters of the $58,000.00 annually, of which increased to approximately industry, pub- devoted to taxes the owners of the property contribute utilities, required and to lic business would be cent. per 90.8 approximately facts, and other incidental material
Upon foregoing and the stated, the petitioners need not facts which be conflicting contentions. answering defendants base if court is that even The contend petitioners authority and under vested with constitutional Ses- of the Acts sion, proposed a certificate of issue it, now before pending in the proceeding municipality may that court deny, and challenge they vigorously which (1) survey The and for these reasons: not do so validly are not incorporate the proceeding used in map statute; of the satisfy requirements not and do accurate is dispropor- incorporated to be sought (2) territory includes (3) the area involved population; tionate to its benefited can be not territory which subjected to be will territory within such property and taxes; (4) municipal unnecessary burdensome includes two incorporated to be territory proposed not are areas residential and distinct separate the same within embraced may be contiguous municipality. and their demurrer defendants, their answering petitioners contentions these
answer, deny urgently accurate; insist that the and the survey map are that the territory disproportionate is not to its population; the territory that all and all property involved within it will be benefited proposed incorporation subjected and not unreasonable or un- taxes; and that necessary territory proposed *6 incorporated does not consist of separate distinct areas constitutes a single, compact but area which func- now tions the unincorporated as of Belle. community attack the petitioners constitutionality of the stat- ute, 83, Chapter Legislature, 1949, Acts Session, and in generally its application proposed (1) incorporation, grounds: on these As violative of Sec- tion Article VIII of the Constitution of West Virginia in that it undertakes to confer impose upon court; (2) duties as violative (a), Article VI Constitution of West in Virginia, it denies the electors within a territory having in excess two thousand of power frame, and authority to adopt and amend its municipal charter; (3) as indefiniteness; void because of (4) as vio- lative of Article III of the Constitution of Virginia West in undertaking to vest legislative in powers citi- private zens; (5) as violative of the Fifth and Fourteenth Amendments Constitution of the United States and Sections 9 and III of the Constitution of West Virginia, in far so as the statute applies to 372 acres devoted territory chiefly to industrial use within the area to be proposed incorporated.
The first issues, two constitutional being specifically presented and directly involved, will be separately dealt with and resolved.
For a period of many years, from the enactment Code of 1868 until the amendment of Article Chapter the Code of by Chapter Acts of Legislature, 1949, Regular Session, the general statute dealing with towns and villages in this State conferred upon the circuit court of the county in which the territory to be incorpo-
rated the clerk of such was located the to direct court of such town “to issue certificate of in form or the statute. village” provided substance 47, Code, From until Chapter See Section 1868. that, it upon the statute was amended provided requisite certificate of the result of the filing of majority qualified vote of a voters within the satis- territory incorporated bounds of the to be had factory requirements that certain statute proof shall, with, “the circuit court order complied been record, entered direct the clerk of said court” to issue a certificate form set forth in the statute. After its amendment until enactment Legislature, 1949, Regular Acts of the Chapter Session, may, statute circuit “the provided record, at its discretion order entered direct clerk of court to issue” the certificate of said incorporation. 41, Acts of See Section Regular Session. original the time the or in its
During provision *7 force, it again amended form remained in and before was 1949, in Court was upon, amended this called in several cases, validity its of meaning to determine within in vesting of the Constitution State in V this circuit court incor to issue a certificate of The poration of a first of the cases which municipality. In re constitutionality involved the of the statute was Mines, Town Union 179, 398, 19 S. E. which of Elder v. In in by was followed succession cases corporators City, Central 222, 738; 40 21 W. Va. S. E. McWhorter, Judge, Bloxton v. 1004; 46 32 W. Va. S. E. Harden, State v. Marys St. 715; 62 58 v. W. Va. S. E. Woods, Judge, 67 W. 164; 67 S. E. 21 Va. Ann. Cas. Taylor, Morris v. Baker v. 70 872; W. S. E. Va. 74 Workman, v. and West 518, 78 S. E. Association, Fair Virginia West E. 353. W. Va. 125 S. constitutionality In all decisions the those statute recognized. dealing or directly upheld impliedly was functions conferred the cir- the nature with court and it in a discharged issuing cuit certificate of a incorporation to of less than two thousand judicial inhabitants and in whether it was determining legislative administrative, at language and used is conflicting times confusing. and Mines, In In re Town Union E. 19 S. 398, the “judicial function is referred to as and adminis trative” and the is that in this discharging statement function the circuit court judicial does not act “under the branch the government” but “as a part legislative government”, branch of action in discharging and its that judicial “legislative functions can not reviewed be Court by a writ of error other ordinary writ appellate In Elder notwithstanding judicial their character.” Incorporators Central City, 40 W. E. S. statute, held it was that in far as so it conferred on judicial circuit court “in their and functions nature administrative, although in furtherance legislative department government” was state constitutional valid. In the in that case this Court in ascertaining said that circuit court and de whether termining requisite facts which existed a particular instance discharged least, “at an administrative or quasi judicial function” which authorized may it McWhorter, In Bloxton v. perform. Judge, 46 W. Va. 32 S. E. it is said proceeding prohibition, court, statute, the circuit given special was jurisdiction exclusive partly legislative was administrative; partly deciding required that the proofs satisfactory were it was exercis that, ing legitimate entering functions and the order direct the issuance of the certificate incor poration, it performing was a ministerial merely duty. *8 Harden, In State v. 62 referring W .Va. 58 S. E. in In of re Town Union and Elder cases Mines v. of Incorporators City, Central “In Re says: opinion the of Mines, Union Town 39 W. the Court held as of Code, of follows: 47 the in relation to the in ‘Chapter towns, cities, corporation of and in so far as it villages, 312 in their nature
confers the circuit court functions on of administrative, although in furtherance judicial and government, the state department legislative the been and valid.’ The same declaration has constitutional Elder In- in v. The language in the same exactly made 222. In Central both corporators City, jurisdiction over cases, these Court declined appellate circuit courts for the proceedings the cities, provision chapter and under the villages, towns Code, express holding 47 and that theory on that, quasi only judicial, action of the circuit court was quasi judicial, if an administrative func- it was not it was tion, ex- upon the conference which circuit courts was Marys the Constitution.” St. pressly authorized Woods, E. Judge, 67 W. Va. S. 21 Ann. Cas. court, 164, the is that a circuit statement statute, a “acts in incorporating municipality, under In Morris v. judicial capacity.” in a and administrative Workman, S. E. and Baker v. Taylor, 70 670, the that holdings S. E. were Constitution, statute did not contravene Article V de- and legislative, executive requires and forbids kept separate to be and distinct partments more than one of them at powers exercise of the justices of the by any except peace, the same time person circuit court ad- and that the discretion vested legislative. and not ministrative Association, Virginia v. The Fair 97 Va. In West W. West directing S. E. that in the clerk this Court held circuit a of incorporation court to issue certificate determining provisions statute a municipality relative to the formation of have been with, circuit court acts an of or agency complied findings representing tribunal this Court subject and order are not to review unless In that case plainly arbitrary capricious. writ of the circuit granted by error was this Court to order Nutter Fort incorporating hearing this Court affirmed County Harrison *9 the order directed of the issuance the charter. The opinion contains this statement: “The circuit court sits as an agency legislature of the to determine whether or not certain met, preliminary requirements have been exercising a function in nature judicial, its but not as a the part judicial system the state in which appeals and writs of error are provided for. The functions circuit court are somewhat of the nature those exer- cised it where a by property owner appeals circuit court from an assessment his made property works, hoard' of for public purposes of taxation. The court hears the evidence offered on behalf of the taxpayer state, and on behalf of the any political division thereof interested, and from that evidence determines the value of the property for assessment purposes. Necessarily in deciding upon conflicting evidence court exercises judgment; but judgment is merely administrative judicial; and not judgment is distinct from that be- as a longing it court or aas tribunal. court acts as an tax appellate tribunal.” This further statement also in the appears opinion: “On the question of the power of courts to review proceedings for the for- mation of municipalities, it is quite held that generally incorporation not a a judicial but ministerial pro- a ceeding, conducting proceedings under legislative authority exercises the special ministerial legislature, functions conferred rather than the judicial powers derived from general the constitution and laws, and a proceeding the order or decree therein subject to review on appeal, writ when, error only manner, or otherwise and in the espe- cially provided by law.” In Proposal Incorporate the recent case of re
Town Chesapeake, 45 S. E. 2d question constitutionality statute, 8, Code, Article again was presented It urged this Court. was section violated Article V the Constitution by conferring legislative purely function the circuit court with in- respect under provisions aof
corporation In that of the Code of 1931. case chapter of that constitutionality of the statute sustained the this Court and, disagreement with some though expressing far function they recognize decisions in so former exercised the circuit court nature, reaffirmed them in its municipality to *10 of In the the cases grounds public policy. opinion on of 179, 398; Mines, 19 E. re Union 39 W. S. In Town Va. 222, 21 City, Elder v. Central 40 W. Incorporators Va. McWhorter, 738; 32, Bloxton Judge, S. E. v. 1004; Harden, v. 58 E. S. E. State S. v. E. Taylor, Morris 70 Va. 74 S. are cited and W. discussed. referring to these Town cases
Chesapeake language: case this uses cited and discussed
“It cannot be doubted that the cases to power grant above sustain the circuit courts clearly to towns with a certificates of of less than two The first of those decisions thousand. that, for was in the the last in so more year has than in circuit courts been fifty power such years, to rule thus recognized. change We are now asked in certain cases decided ground announced on more in- years, strictly this Court in recent we have requirements of Article V the Constitu- terpreted Legislature from preventing tion of this State as conferring judicial. not in their nature upon powers courts Hodges v. The new and strict rule first announced was Commission, Public Service E. 834. 159 S. pass There commission was to upon appli- established cations for dams in the licenses to construct water governor rivers State. The act made the a member this Commission, purpose of the Public Service for the pass- an ing upon applications, provided appeal then Circuit Court of rulings from of the commission an Court. This act County Kanawha appeal ‘The ground was held on the Legis- unconstitutional which are judiciary powers lature cannot commit legislative,’ primarily V Constitution Fisher, v. was In Sims 125 W. S. E. applied. 2d it was held that Article Acts of the Legislature, relating to the sale of lands for the fund, benefit of the school far as require so it attempts courts, Court, of circuit and this performance and non-judicial administrative functions is unconstitu tional.’ This case had to do the sale delinquent with and forfeited lands in a proceeding designated clearly Huber, act administrative. In State supra, Legislature attempted to confer upon circuit courts the pass upon revocation of licenses for the sale beer, of nonintoxicating and the sections of the act con ferring unconstitutional, such power were declared to be under the provisions of Article V of the Constitution. It is unnecessary to discuss here the reasoning these cases are based.
“We will not to reconcile attempt the decisions pertain- ing to towns circuit courts with the opinions expressed in the cases last cited above. We *11 that, think conflict, in their reasoning, they are sharp and, in our had the of opinion, Hodges the case principle In Town Union applied Mines, been to the case of re of supra, a different decision would have been made.” After the decision in the In re Proposal case of In corporate the Town 527, Chesapeake, 130W. S. E. Va. 45 of 113, 2d and presumably to make the statute conform to the principles expressed in the the opinion respecting nature the power by exercised the circuit court in con nection with the the municipalities, Legislature amended the statute then the incorporated 8, Code 2 as Article and conferred Chapter the power in the circuit court the formerly vested upon and, section, court county expressly new provided for an from final order of appeal county the the 83, Legislature, circuit court. the Acts the 1949, Regular Session. the harmony with the view indicated and reasons Chesapeake case, Town and the
expressed quoted the v. The case of West the pronouncements 10, E. Association, 125 S. Virginia Fair 97 W. Va. West reached, 353, Court is that the conclusion now this the upon conferred and the duties power imposed 83, Acts- court, by Chapter function vested in it Session, 1949, Regular with relation legis- are municipalities, essentially lative, judicial, not in their nature.
Subject to constitutional limitations the incorporation, legislative of a function. St. municipality purely Wood, E. 21 Ann. Marys Judge, v. 67 W. Va. 67 S. 164; Morgantown Morgantown, South v. Cas. E. all its power 40 S. and a derives Booten from v. Legislature.
as well as its existence
1917A, 1244;
Pinson,
L. R. A.
77 W.
89 S. E.
Roby
That the exercise the should re- conferred power quire the hear judgment tribunal evidence and to use statutory for the deciding requirements whether formation of a have been met does not mean that such judicial. Huber, power State W. Va. 40 S. E. 2d 168 A. 808. In L. R. in that know, case this said: as a of every- Court “We matter observation, day legislative of the de- agencies partment Government, our as the service public commission, commission, the road com- compensation missioner, the unemployment compensation commission- er, and many regulatory other boards and bodies affecting professions have constant- particular occupations, ly submitted to them they matters take evidence, law, decisions, attempt to make apply the some- importance, equal times of of importance vast to mat- If judicial, ters determined this Court. their are acts acts, and constitute the exercise of then power, such, these no legislative agencies right have to exercise nature, for, contended, power, being judicial their to the courts. The extension belongs exclusively exercise of the conclusion argument logical destroys to its it.”' Commissioners, v. Board discussing the case of Arkle 471, 23 S. E. which it was held that VIII, courts, under Article of the Con- stitution, possess did not remove officers, county-district this Court also uses this language- Court, in the Huber case: while approving “This the- result in Arkle case on the facts there present, finds: mere agree taking itself unable that the of testimony, facts, necessary the ascertainment of law controversy, decision of renders decision ex- where, in cases judicial power, under Con- ercise of stitution, subject of -the is one inquiry which within- legislative either or executive de- jurisdiction Furthermore, State Government.” partment in the exercise of a vesting of discretion *13 318 does not such or such function power
function render judicial in its nature. “That the exercise of discretion it, judicial. make it There is judicial enters into does not executive, non-judicial, legislative or discretion.” Doolittle, 317, Campbell v. S. E. 260. 52 out, the of munici- already pointed As palities legislative is within the exclusive this con- government branch of State. The power of 83, 1949, Chapter Regu- ferred Acts Session, court clerk upon county lar direct its to to a certificate issue to a municipality to determine the statute relative provisions formation of been complied have and, judicial exercising in nature with is not acts an power, county agency as of or tribunal VIII, Under Section Legislature. Article representing Constitution, judicial power county courts specified subjects, limited to which are men- among all matters probate, personal representatives, tioned committees, curators, of their guardians, settlement accounts, matter Haudenschilt v. relating apprentices, Haudenschilt, 328; 129 39 E. v. Gapp Gapp, W. S. Va. 2d 530; Boone, Boone 2d v. 126W. Va. S. E. Mace, rel. 790; E. 2d State ex Nutter v. 17 S. W. E. 676, 44 S. and election involving 2d contests
Va. officers, Daugherty State ex rel. county and district County, Court Lincoln 31 S. E. County in addition that power, county “may 2d but courts and perform duties, exercise such other such other powers, nature, judicial may not of a be prescribed law.” conferred courts county Session, the Legislature, Acts of is in nature not quasi legislative, but or and, of a function legislative, power administrative as a court, in exercising such county power, agency acts “as an of the Legislature to determine or not whether certain requirements met”, have preliminary been the present do, statute which authorizes the courts so to is not VIII, Article violative of V or Constitution, and constitutional. but is valid Court in the case As indicated Proposal Incorporate Chesapeake, of In Town re 2d “the of thought” 130 W. 45 S. E. confusion resulted, extent, con- there referred to to some from the determine, to, sideration and the given endeavor *14 question action the circuit appellate review court in a under proceeding incorporate municipalities general judicial The review of a final order right law. error, in independently writ of proceeding, by it, Court any conferring recognized by statute was this In re before the enactment in 1949 of the statute. present Proposal the Town Incorporate Chesapeake, 130 W. E. The 527, 113; Virginia Va. 2d West v. Fair 45 S. West 17, Association, 97 W. 125 S. E. 353. Section Acts of the Ses- sion, now for an circuit from provides appeal to the court the final order of county Though appears court. it that recognize decisions which practice permitting appeals from and writs error to orders of administrative on proceeded theory agencies tribunals have that such “quasi judicial” exercise what is termed that power, principle destroy does not overlook or distinc- valid tion “quasi judicial” judicial between and power power nature, in its which in judicial power is its real and proper sense meaning. stated in the State v. opinion As in Huber, S. E. 2d 168 A. L. R. recognized there is a “judicial distinction power” between judicial” and “quasi one is power. judicial; other,
its nature meaning, whatever its judicial not real and sense. The proper prefix “quasi” if; means “as though; were; manner; itas in a in a certain degree; to; sense or having some resemblance seeming; seemingly”. Webster’s New International Dic- Edition, tionary, Unabridged, Second G. C.& Merriam Co., page Dictionary, Edition, Black’s Law Third page 1478. Its use or meaning is indicated in quo- this tation Edition, from Black’s Dictionary, Law Third at page
1478: “This term in legal is used to indicate phraseology subject another, that one resembles with which it is com- characteristics, in certain pared, but there are also Stucker, intrinsic Baker differences between them. Mo. 248 S. App. W. 1006.” another subject That which resembles can not be that subject. other The distinction quasi judicial between “a act” judicial and “a act is discussed in the proper” opinion of State v. Penn Oil Company, in the case South E. S. this are language: “Many acts now officers, performed decisions made administrative ‘quasi boards commissioners which are termed judicial’; quasi such administrative or judicial duties seem largely to be on increase. The term implies act, the act has some of the marks a judicial and lacks some. The term both and dif presupposes resemblance ference. But quasi what element it must contain to be it is not to determine on easy We principle. only it does all the possess know that class characteristics of a act Court, that case proper.” though the action of a characterizing reviewing or the legality illegality listing *15 on the land books for taxation property for the cor such listing “quasi judicial”, held, rection of as in Point 2 syllabus, county court acted an ad ministrative board and that its action was not 24, within the of Section meaning VIII Constitution. The or the function relating to the incorporation of vested in a court municipalities, county statute, by the is similar in character con statute, 18, ferred by formerly 39, Code, Chapter Code, 1891, 7-2-1, now commissioners appointed a circuit court to ascertain and determine the true loca boundary tion of a disputed line between two counties. Court, That function in Summers County v. Monroe 207, 307, 43 27 S. E. held County, legislative,, W. Va. to be * “* * in said: action of the circuit or, rather, court matter legislative, in this is administrative function, action, of a be legislative power counties, cause and the alter- fixing the formation of
321
boundaries,
their
ing purely
legislative function.”
Likewise,
court,
the function vested in a county
Sec-
19,
1923,
39,
Code, 7-2-2,
tion
Chapter
Code of
now
consolidate two or more
existing
legislative
districts is
function. State ex rel. Collier v. County
Mingo
Court of
County,
615,
97 W. Va.
To the extent that the reasoning expressed the cases In Mines, re Town 179, 398; Union 39 W. Va. 19 S. E. Elder v. Incorporators Central City, 40 W. Va. 738; S. McWhorter, E. Bloxton v. Judge, 46 W. Va. 1004; 32 S. E. Harden, State v. 715; 62 W. Va. 58 S. E. Marys Woods, St. v. Judge, 67 S. E. Ann. 164; Cas. Morris Taylor, v. S. E. Workman, and Baker 78 S. E. in consistent with the conclusion reached in this case with respect to the nature of the power now vested in connection with the of a those municipality, cases are disapproved. They are not overruled, however, for the Proposal reason stated re to Incorporate the Town Chesapeake, 130 W. Va. 45 S. E. 2d and for the additional reason that statute under they were decided has now re been pealed and amended and its in constitutionality is not volved this proceeding. statute,
The language Acts of the Legislature, 1949, Regular Session, with to the respect original incorporation municipalities, is general and its application is not limited or restricted by express terms to municipalities of two thousand population or less. It is contended by the answering defendants that it applies to and governs the original incorporation of all munici- palities, without regard population, and that the pro- posed territory with its excess of two thou- sand may incorporated under the statute. Prior adoption of Section 39(a) of Article VI of the Consti- *16 tution, known as the Home Amendment, Rule ratified in 1936, by virtue of Section 39 of Article VI which prohib- ited the Legislature from or incorporating amending the charter of a city, town or village containing population
of less than two thousand local or by law, cities, special towns and villages with a population of less than two thousand governed were a general statute which was incorporated the Codes before as Chapter cities with of two thousand or more were incorporated by special charters granted Legisla- ture. adopted amendment 1936 is couched in this lan-
guage: “No local or special law shall hereafter be passed cities, incorporating towns or villages, or their amending charters. The legislature shall provide by general laws for the incorporation cities, and government of towns and villages and shall classify such municipal corporations, basis of population, into not less than two nor more than five classes. Such general laws shall restrict powers cities, of such and villages towns to borrow money debts, and contract and shall limit the rate of taxes for municipal purposes, one, accordance with section article ten of the Constitution of the State of West Vir- ginia. Under general laws, such the electors of each municipal corporation,- wherein the population exceeds thousand, two shall have frame, authority adopt and amend charter of such corporation, or to amend an existing thereof, charter and through its legally constituted authority, may all pass laws and ordinances relating Provided, to its municipal affairs: any such charter thereto, or amendment such any law or ordi- nance adopted, so shall invalid and void if inconsistent or in conflict with this Constitution or the general laws effect, of the State then in thereafter, from time to time enacted.”
If Chapter Legislature, 1949, Acts of the Session, be construed applied to extend to and govern the formation of a municipality with a population in ex- thousand, cess of two its certificate of incorporation, in the form provided statute, declares it to abe body authorized, corporate duly within the corporate limits charter, prescribed all exercise the corporate powers conferred 8 of the Code. Such cer- *17 incorpo- confer a so upon municipality tificate does not any of the general special, rated other any powers, for a municipality powers provided numerous particular charter virtue of Chapter under a home rule operating Session, 1937, enacted 56, Regular Legislature, Acts of the provisions for of effect to the purpose giving the in Michie’s Amendment and appears Home Rule which and Code, 8A. So construed Chapter Annotated as Regular Legislature, Acts of the applied, Chapter amended, Code, 1931, Session, Article Chapter electors of which deprive municipality, would the of a thousand, right to ex- exceeds two of population frame, and amend adopt ercise and to “power authority granted charter corporation” expressly of of Home Rule secured them provisions to a possess The words “frame” and “adopt” Amendment. con- meaning, clear and and their meaning well known answering of defendants that trary the contention to charter, existing a previously these words relate to only charter original the creation and the of adoption and brought under municipality incorporated which short, In into valid existence in the first instance. legal original to the apply statute Belle, which municipality population proposed thousand, the electors is in would deprive excess two under right, their constitutional express within its area of Amendment, chart- adopt Home frame and its Rule 83, Acts consequence, er. to the extent that Session, to the Regular applies of the Legislature, a in which the municipality original thousand, it is violative of is in excess of two population is, (a) the Constitution VI of reason, municipality null and void. The proposed Belle, therefore, can not under incorporated statute. Rule Amendment the Home
Under provisions empower enactment laws to relating general the popu- municipal corporation, electors amend” thousand, frame, “to adopt lation exceeds two 134 Va. w. charter, thereof”, “or existing to amend an charter
Legislature, enacted a comprehensive general statute which applies governs existing municipal corporations with which exceeds thou two sand. Chapter Acts of the statute, however, Session. That munici apply does not palities less, with a population Hayes of two thousand or Grove, v. The Town Cedar 30 S. E. 2d L. R. A. and it makes no for the provision original incorporation a proposed with a *18 population in excess of two thousand. This situation was recognized, pointed out and commented Court in the case of In re Proposal Incorporate to Town Chesapeake, 130 Va. E. 2d On 45 S. 113. W. that subject, referring to Chapter Acts Legislature, Session, Regular says: “We opinion have any searched vain for provision which would authorize the incorporation towns and cities of more than thousand two there population, certainly nothing in that act which authorizes action in any respect to towns of less than two thousand population. Home that, Rule Amendment provides general under the laws for, therein provided municipal electors of each cor poration wherein the population exceeds two thousand shall have the authority to frame and adopt or amend the charter While the corporation. Legislature had full power, under the Home Rule Amend ment, legislate to with respect to towns of less population thousand, than two it is clear that it did do so by Chapter 56 of the Acts of it left intact the provisions Code, of Article 8 of Chapter retaining authority provide of towns and cities a population more, with or two thousand although it apparently did not exercise authority.” Chapter Legislature, 1949, Acts Regular As Session, extent that it to the applies of proposed municipalities with a population excess of thousand, two unconstitutional, is now held be null and void 39(a) as violative of Section of Article VI of the constitution, there is no valid statute under or present of a proposed original incorporation virtue of which of two thousand in excess with may accomplished. constitu- concerning reached the conclusion
As Acts tionality in the' situ- Session, indicated and extent it is un- proceeding, is decisive of this
ation presented, raised questions the other consider or discuss necessary to enter- or expressed and no pleadings, questions. of those regard any tained in how remedy, appropriateness The matter of the proceeding, in this ever, in circumstances disclosed decisions Many and determined. be considered must courts against lies only hold that prohibition this Court quasi-judicial pow exercise tribunals which County, Mingo County Collier Court ex rel. v. ers. State Blanken 576; rel. Noce v. 615, 125S. E. State ex 97 W. Va. O’Brien, v. 79 W. 524; Baker 116 S. E. ship, 93 W. Va. Doolittle, 543; 58 W. Va. Campbell 90 S. E. 251; E. Holt, 47 S. 260; Moore v. 52 S. E. Commissioners, 608, 8 S. E. Fleming v. Commissioners, 213. Fayette County Brazie v. *19 more narrow statement decided cases the In some of the and tribunal judicial a goes “only against is that the writ Court, County Nest v. Town Hawk’s judicial action”. Holt, 47 Hassinger 48 W. S. E. Holt, Education v. 348, 34 In Board S. E. 728. Court held: this syllbaus, 46 S. E. in Point of the to prevent issues only properly “The writ of prohibition * * * exercising or by action inferior tribunals judicial It never issues exercise functions. assuming to exercising adminis purely boards against administrative court, incorpora functions.” As the trative Legis Acts of tion a under municipality Chapter determined, Session, herein does lature, 1949, or is or a function which exercise a or administrative legislative, is judicial, but which quasi function, remedy by prohi- a or legislative power and, bition does not lie in this proceeding reason, for that will issued. writ not be
Writ denied. GiveN, Judge, dissenting:
I agree that the writ should denied for be the reasons stated I point syllabus, agree that but cannot Acts Chapter to extent applies it to the munici- proposed palities, thousand, with a population excess of two unconstitutional, as violative of the Rule Amend- Home Constitution, VI, ment 39(a). Section The *“* * applicable parts of that Amendment read: The legislature shall incor- provide by general laws for the poration government cities, towns and villages * * laws, *. Under general electors each municipal corporation, wherein the exceeds population thousand, two shall have the to authority * * frame, and amend adopt the charter It will be language noticed require does not or compel frame, municipality charter, amend adopt or but it grants “power Nothing to do so. authority” the quoted language prevents the Legislature from establishing charter for thou- municipality of.over two sand unless the municipality and until to do so. elects contrary, Legislature On the required to provide general government cities, laws for the of all towns and villages. Legislature required “general is also law” for provide of all municipalities,' whether not, of two thousand and there is population merely preserved any thou- municipality over two frame, right sand authority adopt or amend its charter. Section Article 2 Act of ** * 1949, provides “Any part any may that: district * * incorporated city, as a *.” This village town includes a proposed of over thousand two population, Article 1 of the Home Municipal Law, Legislature (now Rule enacted *20 8A the a Code) “city” defines with a Ar- population excess of two thousand. Section 11 of
327 court, requires through tide of the Act a clerk, a “certificate of a incorporation” upon to issue finding by provisions the court that to in- relating corporation municipalities have been with. complied of Article of the Home Rule “The Law reads: frame, any adopt voters of and amend city may charter of a the manner corporation provided by this article.” Other sections full Article make provision for framing, adoption amending charters.
From
clear
I
these
am of the
provisions,
opinion that
the “certificate of
required to be issued
incorporation”
a
county court
not
considered
be
municipal
charter,
is mere
authority
but
to or-
corporation
ganize
elects,
and to frame
charter if it
its own
so
and to
governed by general
be
statutes
relating
govern-
ment of such
until the
corporation
adoption
charter.
a
If
strained,
construction
is,
be somewhat
it
never-
theless, justified
the rule that:
“Whenever reasonably
possible, courts must so construe statutes
toas
save their
**
J.
constitutionality,
S. Constitutional
C..
Law
Section 98.
reasonable construction must be re-
“Every
sorted to in order
to save
statute from unconstitution-
Massie,
ality.”
State v.
Pt.
95 W.
Conceding
charter, I do
incorporation amounts to a
municipal
that the act violates the Home Rule Amendment
believe
Constitution,
requires
since
amendment
only
that a
of a
in excess of
municipal corporation
frame,
elects,
two thousand be
if it so
permitted,
adopt
This
clear from the use of
amend its charter.
seems
corporation”,
the words “electors of
since
municipal
each
it would
for there to be
cor-
impossible
municipal
had taken
place,
before the
poration
there to be electors of a
impossible
since it would be
*21
does not
incorporation.
language
before
municipality
adopt
to frame or
require such
own
municipality
charter,
preserves
right
it such
and a mu-
merely
but
right.
elect
to exercise
elect
nicipality may
“A
a charter as authorized
adopting
ex-
merely
the home rule
the constitution
provision
government
of local self
ercising
permissive authority
* *
C.
Con-
on all
J. S.
municipalities,
conferred
Sherrill,
ex
Arey
State
rel.
v.
citing
stitutional Law
Taylor,
E. 2d
Morris v.
142 Ohio St.
N.
501. See
618,
State West Hughes Davidson Charles
(No. 10251) on Motion to Dismiss 1950. April Submitted 9, 1950. Decided May