Brewer v. City Of Point Pleasant, (CC 498)

• Decision Date: 30 January 1934
• Docket Number: (CC 498)
• Citation: 114 W.Va. 572
• Court: West Virginia Supreme Court
• Parties: Ollie Brewer v. City of Point Pleasant, a MunicipalCorporation, et al.

114 W.Va. 572

Ollie Brewer

v.City of Point Pleasant, a Municipal

Corporation, et al.

(CC 498)

Supreme Court of Appeals of West Virginia.

Submitted January 23, 1934.

Decided January 30, 1934.

1. Statutes

It is the duty of courts to hold that an act of the legislature, in Extraordinary Session, is within the gubernatorial proclamation, if by "any reasonable construction of the language of the proclamation the subject legislated upon is embraced therein." State v. Shores, 31 W. Va. 491, 498, 7 S. E. 413.

2. Constitutional Law

"The title of an act should be construed most liberally and comprehensively in order to give validity to all parts of the act." State v. Haskins, 92 W. Va. 632, 115 S. E. 720, pt. 3, Syl.

3. Statutes

When the principal object of an act is fairly expressed in its title, other incidental or auxiliary objects which are germane to the principal object may be included in the act without titular specification.

4. Municipal Corporations

Where an act, permitting a municipal corporation to issue bonds for a self-liquidating municipal project, provides that the bonds "shall not be a corporate indebtedness of sucn municipality," the bonds do not create debts within the constitutional inhibition against the contraction public debt.

5. Municipal Corporations

The provisions of an act relating to the issuance of municipal bonds are regarded as integral parts of the bonds whether included therein or not.

6. Constitutional Law

The legislature may lawfully empower municipalities to exercise a police power of the state.

7. Constitutional Law

Chapter 25, Acts of the Legislature, First Extraordinary Session 1933, authorizing municipalities to construct and finance, etc., self-liquidating sewer systems is constitutional.

8. Municipal Corporations

Where an invalid declaration in an ordinance may be treated as surplusage, the declaration will not affect the validity of the remainder of the ordinance.

9. Municipal Corporations

Where a statute provides for a public hearing, after notice, before the governing body of a municipality prior to the establishment of rates to be charged for the use of a sewer, a party aggrieved must avail himself of this remedy ordinarily and cannot resort to the courts in the first instance.

Certified from Circuit Court, Mason County.

Suit by Ollie Brewer against the City of Point Pleasant and others. A demurrer to the bill was sustained, and the ruling certified for review.

Affirmed.

Somerville & Somerville and Hogg & Hogg, for plaintiff. F. G. Musgrave, B. H. Blagg, and Wm. H. Bardin, for defendants.

Hatcher, Judge:

The bill herein attacks the validity of an ordinance of the city of Point Pleasant, which provides for constructing and financing a self-liquidating sewer system. The circuit court sustained a demurrer to the bill and certified the question of its sufficiency to this Court.

The local situation, as alleged in the bill, is that the city, incorporated in 1915, embraces territory formerly within the towns of Point Pleasant and North Point Pleasant, respectively; that prior to 1915, the town of Point Pleasant had a sewer system but the town of North Point Pleasant had none and the section formerly included within its boundary has remained without a sewer system unto the present time; that the plaintiff resides in the section which was formerly within the town of Point Pleasant, and uses the sewer in that section; that the sewer is adequate to his needs; yet the ordinance proposes to require him to pay for use of the new system. Exhibited with the bill, however, is the application of the city to a federal bureau for the loan of money with which to construct the sewer. The application contains the following statement: "The old section of town (i.e. town of Point Pleasant) has had an inadequate sewer system for a period of thirty years. These sewers were laid before the streets were paved and there is not a manhole on the entire system. This has led to a very unsatisfactory condition, the present system being little more than worthless. * * * The only solution for this is * * * the rebuilding of present sewers," etc. Consequently, the exhibit discountenances the plaintiff's position that he will be required to pay for unneeded service.

The ordinance authorizes the city to construct a sewage system according to certain plans and specifications, upon money to be borrowed from the Federal Emergency Administration of Public Works. The loan is to be evidenced by an issue of bonds which shall not constitute an indebtedness of the city, but which are to be paid for solely from revenues to be derived from rates charged against every ''metered water connection which uses water from the city water works system and which also uses the said sewage works system." The ordinance was passed pursuant to chapter 25, Acts of the Legislature, First Extraordinary Session 1933.

1. The plaintiff makes the following contentions against the constitutionality of this chapter: (a) that the Act was not within the purview of the executive proclamation calling the Extraordinary Session; (b) that the objects of the Act are not sufficiently expressed in the title; (c) that the issuance of bonds for the sewer will create an unlawful indebtedness of the city; and (d) that the Act is an illegal delegation of legislative powers.

The gubernatorial proclamation called for legislation to meet the existing emergency "by permitting municipalities to borrow money from the Reconstruction Finance Corpora- tion for self-liquidating projects." It is our duty to hold the Act to be within the proclamation if by " any reasonable construction of the language of the proclamation the subject legislated upon * * * is embraced therein." State v. Shores, 31 W. Va. 491, 498, 7 S. E. 413. Accord: Road Com. v. Bridge Com, 112 W. Va. 514, 517, 166 S. E. 11. It is true that the proclamation specified a loan from the Reconstruction Finance Corporation, and the Act makes no reference thereto but merely provides for financing the project by funds derived from "the issuance of revenue bonds of the municipality." The paramount idea in the proclamation, however, was that permission should be granted municipalties to finance "selfliquidating projects." In other words, the projects themselves were assuredly of more importance to the gubernatorial mind than the identity of who should underwrite the projects. "We are of opinion that reasonable construction would include the Act within the purview of the proclamation.

The title of chapter 25 is as follows: "AN ACT to authorize municipal corporations and/or sanitary districts to construct, own, equip, operate, maintain and improve works for the collection and/or treatment, purification and disposal of sewage; to authorize charges against owners of premises for the use of such works and to provide for the collection of same; to authorize municipal corporations and/or sanitary districts to issue revenue bonds payable solely from the revenues of such works and to make such bonds exempt from taxation; to authorize contracts for the use of such works by other municipal corporations and political subdivisions, and charges against owners of premises therein served thereby and a lien against such premises." The Act directs the appointment of a sanitary board by the "governing body" of the municipality and confers on such board C3rtain powers in relation to the construction, etc., of the works. The Act also provides for the collection of revenue to retire the bonds and for the execution of a "trust indenture" to secure them. The plaintiff contends that the title of the Act does not embrace the above three objects. "When the...