Baxa v. Partlow
| Decision Date | 01 June 1949 |
| Docket Number | 10091. |
| Parties | BAXA et al. v. PARTLOW. Attorney General. |
| Court | West Virginia Supreme Court |
Submitted April 12, 1949.
Syllabus by the Court.
1. Determination of what is or is not adequate revenue to sustain the necessary functioning of a municipality is a legislative, not a judicial question.
2. The approximate rate of levy necessary to meet sinking fund requirements as provided in the order submitting the question of a bond issue to the people, must be substantially complied with. And an ordinance passed subsequent to an election at which a bond issue is approved, authorizing a rate of levy in excess of that approved by the people, is void, but will be treated as surplusage in a proceeding under Code, 13-1-26.
3. Ordinarily the sole question to be considered upon the review provided for in Code, 13-1-26, is the approval or disapproval by the attorney general of a proposed bond issue; and generally this Court will not undertake therein the supervision of the expenditure of funds to be procured as a result of such bond issue.
George W. Post, Clarksburg, Campbell, McClintic & James, Lee M Kenna, Charleston, for petitioners.
Ira J. Partlow, Atty. Gen., Kelcel M. Ross, U. G. Young, Jr. Buckhannon, for respondent.
On August 9, 1948, Edward F. Baxa, Dr. O. O. Bennett, H. B Adams and Edward C. Young, residents and taxpayers of the City of Buckhannon, filed their petition in this Court under Code, 13-1-26, praying that the action of the Attorney General in approving a bond issue of that municipality be reversed. On August 31 the same petitioners filed their amended and supplemental petition which the City of Buckhannon now objects to this Court considering because not filed within ten days after the date of the last publication of the notice of the Attorney General of his approval of the bond issue in question. We are of the opinion that the objection to the supplemental petition is without merit, so long as the defendant does not and cannot contend that it was taken by surprise or otherwise prejudiced by the filing and consideration of the supplemental petition. It attempts to make no new parties to this proceeding and, as new matter, alleges only occurrences since the preparation and filing of the original petition, not included in the file forwarded to the Attorney General's office by the City of Buckhannon upon which his approval of the proposed bond issue was based. For this reason, althouhgh we consider the supplemental petition as seasonably filed, we are of the opinion that its allegations do not go to the merits.
On April 1, 1948, the Common Council of the City of Buckhannon, at a regular meeting, adopted an ordinance submitting to a vote of the people of that city on June 1, 1948, the question of approving or disapproving a proposed bond issue for $75,000 for the purpose of constructing a fire department building and acquiring real property for the purpose. The record submitted to the Attorney General under the applicable statute shows that this order of the City Council was passed and the election properly held on June 1, 1948, with the result that the issuance of bonds was approved by a vote of 1050 to 441. The record shows also that following the election and on June 7, 1948, the City Council passed another order containing the statement that after providing the revenue necessary for the payment of both principal and interest requirements on the bonds, there will be out of the levies authorized by law sufficient funds to carry on the requisite functions of the City of Buckhannon. This order provided further that the rate of levy adopted in the order passed April 1 wherever necessary may be exceeded in making the annual levy to meet the required payment of interest and principal coming due under the proposed bond issue.
The contention of the petitioners is that in approving the bond issue under the record submitted to him by the City of Buckhannon the Attorney General necessarily approved the order of June 7, 1948, since it is a part of the record submitted to him by the City of Buckhannon. They say that in providing the manner in which governmental units may become indebted Section 8 of Article X of our Constitution requires that 'all questions connected with the same, shall have been first submitted to a vote of the people'; that providing the necessary running expenses for the City of Buckhannon is a question necessarily connected with the issuance of its bonds and that the general statement that that will be provided should have been included in the order of April 1, 1948, so informing the people to whom the matter was submitted.
They say further that since Code, 13-1-4, expressly requires a statement in the order of submission of the approximate rate of levy necessary to be authorized by a vote of the people that the governing body of a taxing unit cannot disregard completely a vote of the people...
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