City Of Benwood v. Wheeling Ry. Co

• Decision Date: 02 May 1903
• Parties: CITY OF BENWOOD. v. WHEELING RY. CO. et al.
• Court: West Virginia Supreme Court

44 S.E. 271

53 W.Va. 465

CITY OF BENWOOD.

v.WHEELING RY. CO. et al.

Supreme Court of Appeals of West Virginia.

May 2, 1903.

MUNICIPAL, CORPORATIONS—GRANT OP FRANCHISE — NOTICE OF APPLICATION — COMMON COUNCIL—VACANCIES—ELECTION TO FILL— PAROL EVIDENCE—FRAUD.

1. In granting a franchise or privilege, the council of a municipal corporation or a county court performs a legislative, and not a judicial, function, and the notice required by section 1 Of chapter 29, p. 82, of the Acts of the Legislature of 1901, is provided merely in aid, protection, and extension of the right to be heard by petition, and need not set forth the day on which the application will be, or is expected to be. acted upon. As the act requires the application to be filed 30 days before action upon it, and forbids any action upon it until after 30 days' publication of notice, the notice is merely intended to apprise the public of its pendency.

2. A statute requiring notice to be "given by publication for thirty days in some newspaperof general circulation" published in a county or city, is sufficiently complied with by publication in the successive issues of a weekly newspaper through the period of time named.

3. Under a city charter requiring a quorum, composed of a majority of the members of the council, for the transaction of business, less than a quorum cannot convene a session of the council and transact business.

4. Where, in such case, less than a quorum meet, and attempt to declare the seat of an absent member vacant, and elect another person to his seat, and still another to the seat of a member whose resignation has been placed in the hands of the mayor, but not acted upon, before the other regular members appear, thus illegally giving themselves an apparent majority in the council, the alleged elections to fill vacancies are void, and the strangers so obtruded upon the council have no right to vote, and no measure can be passed by their votes.

5. Although, in a collateral proceeding, parol evidence is not admissible to contradict the record of the proceedings of the council of a municipal corporation, it is admissible in such case to show that the council had not, and could not have, convened at all, or acquired the right to make a record, when the alleged elections took place, although the minutes contain the recital, "Roll of members called, and a quorum found present."

6. Fraud both lurks and deals in generalities. (Syllabus by the Court.)

Appeal from Circuit Court, Marshall County; Thayer Melvin, Judge.

Bill by the city of Benwood against the Wheeling Railway Company and another. Decree for plaintiff, and defendants appeal. Reversed.

Erskine & Allison, for appellants.

Caldwell & Caldwell, for appellee.

POFFENBARGER, J. Wheeling Railway Company and Wheeling Traction Company appeal from decrees of the circuit court of Marshall county refusing to dissolve and perpetuating an injunction awarded upon the application of the city of Benwood restraining said companies from making certain connections of street railway tracks and trolley wires in the streets of said city for the purpose of establishing a through line between the city of Wheeling and the city of Moundsville, which, instead of running through the main portion of Benwood, would pass along the border of the thickly settled portion of its territory. Two principal questions are presented. One is whether an ordinance granting the right to make the connections was passed by the common council of said city of Benwood on the 9th day of July, 1901, and the other whether, if such ordinance was passed on that day, it was repealed on the 23d day of July, 1901. The validity of the action of the council, on July 9, 1901, whereby, it is claimed, the privilege was granted, depends largely upon the construction of chapter 29, p. 82, of the Acts of the Legislature of 1901, consisting of one section, which reads as follows: "No franchise shall hereafter be granted by the county court of any county, or other tribunal acting in lieu thereof, or by the council of any city, town or village incorporated under the laws of this state, where the application for such franchise has not been filed at least thirty days prior to the time when it is to be acted upon, by such county court or council, and notice of such application, stating the object of such franchise, shall have been given by publication for thirty days in some newspaper of general circulation published in such county or city wherein such franchise is to be granted. Nor shall such franchise be granted within thirty days after the application has been filed, nor until an opportunity has been given any citizen or corporation interested in the granting or refusing of said franchise to be heard. Nor shall any franchise hereafter be granted by any county court, or other tribunal acting in lieu thereof, or by any council of any city, town or village incorporated under the laws of this state, for a longer term than fifty years: provided, however, that nothing in this act shall prevent the renewal of any such franchise for a term not exceeding fifty years, when the same shall have expired. No franchise hereafter granted for any longer term than fifty years shall be of any force or validity." Application for the franchise in question was filed May 28, 1901, more than 30 days before it was acted upon, and notice thereof was published from May 30, 1901, until June 27, 1901, inclusive, in a weekly newspaper, published in said city of Benwood. The objection is to the notice and the manner of its publication. It was not shown by the notice when the council would, or would be requested to, act upon it, and it is further objected that the publication should have been made in a daily newspaper.

By counsel for the appellee it is insisted the notice and the action of the council in pursuance thereof are void by reason of the failure to specify in the notice the time at which the application would be acted upon. It will be observed that such requirement is not expressed in the act, and that the only express requirement as to its contents is that it shall state "the object of such franchise." To hold that such specification is essential, it must be found that it arises by implication. The only clauses from which such implication could arise are: "No franchise shall hereafter be granted by the county court of any county, or other tribunal acting in lieu thereof, or by the council of any city, town or village incorporated under the laws of this state, where the application for such franchise has not been filed at least thirty days prior to the time when it is to be acted upon, " and "nor shall such franchise be granted within thirty days after the application has been filed, nor until an opportunity has been given any citizen or corporation interested in the granting or refusing of said franchise to be heard." With these the direction as to the time and mode of filing the application must be considered. Mere inspection of the statute proves that it may be filed at any time "with the clerk of such court orcouncil." Neither the clerk nor the applicant can fix the time of acting upon it. The applicant may say in the notice that he will request action upon it at a certain regular meeting, but that would fall far short of showing "when it is to be acted upon, " for he has no power to compel action at that time, nor to prevent action at an earlier date, should the tribunal before which it is pending see fit to make an earlier disposition of the matter. The only restraint imposed upon such tribunal is the inhibition of the statute that the franchise shall not be granted within 30 days of the time of the filing of the application, nor until 30 days' notice shall have been given interested persons to be heard. The rule of implication in construction is that when a thing is commanded to be done such command authorizes all that is necessary for the performance of what is ordered Sedgwicl:, Con. St. 228. In such case there is a necessary implication, which cannot be dispensed with. But this is probably only applicable where something not expressed in a statute must be read into it in order to make it effective. There are, no doubt, instances in which, in the performance of a thing required by a statute, a choice of means is allowed, and in that sense powers not necessarily implied arise merely by implication;. The question raised here, however, is whether there is a necessary implication—— whether the statement of the time of action upon the application is so essential to the doing of the thing ordered that it cannot be omitted. Its solution depends somewhat upon the nature and purpose of the notice and the proceeding to which it relates.

The granting of a franchise is a legislative, nor a judicial, function. An application for such a franchise is in no sense, nor to any extent, a proceeding inter partes. Nor is it an adversary proceeding. It is not adverse, in a legal sense, to the municipal corporation to whoso authorities it is made, for they have absolute discretion to grant or refuse it, and from their decision, properly giver., there is no appeal. In a sense, the granting of the franchise is a matter of grace, proceeding voluntarily from them, and not a right which anybody can obtain by compulsory process. As to the citizen, it is not adverse, for under the power of eminent domain his property may be rightfully taken or damaged pursuant to the franchise, and his right is limited to the exaction of compensation, which does not arise upon the application for, or granting of, the franchise. By the Constitution, art. 11, § 5, this unrestrained power is vested in the council, and left ungoverned by any direction as to the mode of its exercise. We now have for the first time, in the statute under consideration, a regulation of it by legislative act. That regulation does not expressly say the time of action shall be stated in the notice. If, in nature, the notice were...