Bd. Of Sup'rs Of Norfolk County v. Duke

• Decision Date: 18 January 1912
• Citation: 113 Va. 94,73 S.E. 456
• Parties: BOARD OF SUP'RS OF NORFOLK COUNTY et al. v. DUKE et al.
• Court: Virginia Supreme Court

73 S.E. 456

(113 Va. 94)

BOARD OF SUP'RS OF NORFOLK COUNTY et al.

v.DUKE et al.

Supreme Court of Appeals of Virginia.

Jan. 18, 1912.

1. Statutes (§ 90^*) — Constitutional Law (§ 61*)—Municipal Corporations (§ 12*) —Division of Governmental Power—Exercise op Legislative Power — Exercise by Judiciary—Incorporation of Town.

Const. 1902, § 5, and article 3 (Code 1904, pp. ccix, ccxvii), required the legislative, executive, and judicial departments to be separate; and section 117 (page ccxxxviii) provides that general laws for the organization and government of cities and towns shall be enacted by the General Assembly, and no special act shall be passed in relation thereto, except in the manner provided by article 4, and then only by a two-thirds vote. Laws 1908, c. 308, provides that whenever a petition, signed by 20 electors of an unincorporated town or a thickly settled community, shall be presented to the circuit court of the county, stating the boundaries, population, etc., and the court shall be satisfied that it will be to the best interest of the inhabitants of the said town, that the prayer of the petition is reasonable, that the general good of the community will be promoted, that the number of inhabitants exceeds 200, and does not exceed 5, 000, and that the area embraced therein is not excessive, it shall decree that the town be incorporated. Held, that section 117 required the Legislature to provide by general laws for the creation of municipal corporations, and it could not be said that Laws 1908 delegated legislative powers to the circuit court, contrary to the Constitution.

[Ed. Note.—For other cases, see Statutes, Dec. Dig. § 90;* Constitutional Law, Dec. Dig. § 61;* Municipal Corporations, Dec. Dig. § 12.*]

2. Constitutional Law (§ 14*)—Construction.

The language of the Constitution should be construed according to the ordinary meaning of the words used therein, not being ambiguous.

[Ed. Note.—For other cases, see Constitutional Law, Cent. Dig. § 11; Dec. Dig. § 14.*]

3. Words and Phrases—"Organize."

"To organize" means to arrange or constitute in parts; each having a special function or relation.

[Ed. Note.—For other definitions, see Words and Phrases, vol. 6, pp. 5053, 5054.]

4. Municipal Corporations (§ 7^2-*)—Organization—Reasonableness.

Laws 1908, c. 308, authorizes the circuit court of a county, on petition of the electors of any thickly settled community to have it incorporated as a town; if the court be satisfied that the petition is reasonable, and that the general good of the community will be thereby promoted, to order the town to be incorporated. The community sought to be organized as a town is a part of a continuous settlement which is divided by a railway, and the two parts of the settlement are contiguous and homogeneous in population and interest, and some of the streets pass through both towns. Held, that it was not reasonable, or for the best interest of the community, that the part of the community in question be incorporated as a town.

[Ed. Note.—For other cases, see Municipal Corporations, Dec. Dig. § 7.*]

Error to Circuit Court, Norfolk County.

Petition by John T. Duke and others against the Board of Supervisors of Norfolk County and others to have territory incorporated as a town. Order granting the petition, and defendants bring error. Reversed, and petition dismissed.

Sale, Mann & Tyler, J. W. Hopper, and T. J. Wool, for plaintiffs in error.

Jno. N. Sebrell, Jr., for defendants in error.

KEITH, P. Certain persons, claiming to be electors, filed their petition in the circuit court of Norfolk county, in which they state that a certain thickly settled community, known as "Pinner's Point, " in the county of Norfolk, described by metes and bounds in the petition, containing 1, 250 inhabitants, being of opinion that it was to their interest to be incorporated, and that the general good of the community would thereby be promoted, asked the court to incorporate them as a town, under the name of "Pinner's, " by virtue of an act approved March 14, 1908, entitled "An act to provide for the incorporation by the courts of towns of more than 200 and less then 5, 000 inhabitants, and conferring upon said towns, when incorporated, certain powers of taxation, " to be found in the Acts of 1908, at page 552.

Upon their motion, the board of supervisors of Norfolk county and certain individuals were made parties to this petition, and filed their demurrer in writing, which was overruled, and thereupon they filed their answer, to which the petitioners replied generally; and the court having heard the evidence entered an order in accordance with the prayer of the petition, to which order a writ of error was awarded, and the case is before us for review.

By the terms of the act referred to, it is provided that the case shall be heard in the appellate court "without reference to the principles of demurrer to evidence, the evidence to be considered as on appeal in chancery cases."

Certain formal objections were taken in the circuit court by the respondents, and are insisted upon here, which, in the view we shall take of this case, need not be determined. We shall assume that the number of electors contemplated, duly qualified as provided by law, united in the petition to the circuit court; that the description of the territory proposed to be embraced in the incorporation is correctly given; that due publication was made in accordance with the statute; and, in fine, that all matters of form were complied with.

The first question which we shall consider arises upon the demurrer. It is insisted that the act of Assembly of the 14th, of March, 1908, is unconstitutional, because it violates section 5, art. 1, of the Constitution of 1902 (Code 1904, p. ccix), the first paragraph of which declares that the legislative, executive, and judicial departments of the state shall be separate and distinct, and article 3 (page ccxvii), which declares that, "Except as hereinafter provided, the legislative, executive, and judicial departments shall be separate and distinct so that neither exercise the powers properly belonging to either of the others, nor any person exercise the power of more than one of them at the same time."

By section 117 of article 8 of the Constitution (page ccxxxviii), it is provided that: "General laws for the organization and government of cities and towns shall be enacted by the General Assembly, and no special act shall be passed in relation thereto, except in the manner provided in article 4 of this Constitution, and then only by a recorded vote of two-thirds of the members elected to each house."

Plaintiffs in error contend that the act in question delegates to the circuit courts legislative functions, in deciding (1) whether the proposed incorporation is for the interest of the inhabitants of the proposed town; (2) whether the general good of the community will be promoted by incorporation; (3) whether or not the prayer of the petitioners is reasonable; (4) that it permits the courts to alter the boundaries named in the petition, and to fix others; and (5) that it vests absolutely in the court the discretion to dispose of the matter as to it may seem best.

This general subject was before this court in Henrico County v. City of Richmond, 106 Va. 282, 55 S. E. 683, 117 Am. St. Rep. 1001. That, it is true was a case involving the constitutionality of an act authorizing the annexation of territory to an existing municipal corporation.

By section 126 of the Constitution (page ccxlii), it is declared that: "The General Assembly shall provide by general laws for the extension and contraction from time to time of the corporate limits of cities andtowns, and no special act for such purpose shall be valid."

When the Legislature came to deal with the duty imposed by that section, it passed an act which is to be found in the Code of 1904 as section 1014a. It imposes upon the courts substantially the same duties that they are required to exercise under the act called in question in the controversy before us.

The constitutionality of section 1014a was vigorously attacked upon arguments almost identical with those under consideration, and enforced by substantially the same line of authorities, though the industry of counsel in the case before us has added to the number. It was urged upon us in Henrico County v. City of Richmond that there was a commingling of legislative and judicial functions in the act, which rendered it null and void. It was pointed out that it was for the courts to determine the necessity...