City of Charlottesville v. Albemarle County

• Citation: 214 Va. 365,200 S.E.2d 551
• Court: Supreme Court of Virginia
• Decision Date: 26 November 1973
• Parties: CITY OF CHARLOTTESVILLE v. COUNTY OF ALBEMARLE et al.

Page 551

200 S.E.2d 551

214 Va. 365

CITY OF CHARLOTTESVILLE v. COUNTY OF ALBEMARLE et al.

Supreme Court of Virginia.

Nov. 26, 1973.

William R. Cogar, Richmond (Roger C. Wiley, Jr., City Atty., for the City of Charlottesville, John S. Davenport, III, John S. Barr, Mays, Valentine, Davenport & Moore, Richmond, on brief), for plaintiff in error.

Robert C. Fitzgerald, Fairfax, Robert M. Musselman, Charlottesville (Myron C. Smith, Fairfax, George R. St. John, County Atty., for Albemarle County, Charles R. Haugh, Commonwealth's Atty., for Albemale County, Stephen H. Helvin, Ross W. Krumm, Max C. Kennedy, Charlottesville, Fitzgerald & Smith, Fairfax, Haugh & Helvin, Charlottesville, on briefs), for defendants in error.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN, HARMAN and POFF, JJ.

HARRISON, Justice.

We consider here whether Code § 15.1--1055 bars an annexation proceeding brought by a city within five years of the entry of a final order in another annexation proceeding by the same city which was dismissed beause of its failure to comply with the provisions of Code § 15.1--1033.

The City of Charlottesville sought to annex territory from Albemarle County and, after adopting an ordinance for annexation as required by Code § 15.1--1033, instituted an annexation proceeding by filing on January 8, 1971 its petition for annexation in the court below and giving the required notices. In accordance with the City's petition, service was had, an order of publication was entered and executed, returns of service of publication were made, and this court entered its order appointing the judges who constituted the annexation court. The case was docketed, the County filed its respective pleadings, parties intervened and certain motions and pleas were filed, including a plea to the jurisdiction filed by the County on the ground that the City had failed to comply with Code § 15.1--1033(a). ¹

Following a hearing the annexation court granted the County's plea to the jurisdiction and entered its final order dismissing the case on January 10, 1972, to which action the City excepted. ²

Thereafter on February 3, 1972 the City Council of Charlottesville adopted another annexation ordinance and again sought to annex territory from Albemarle County by filing on February 7, 1972 its second petition for annexation, thereby instituting the proceeding now under review. This ordinance and the required notices were served on the appropriate county officials and duly published. A special three-judge court was again constituted and various motions of the County and intervenors were filed in opposition to the City's petition. The County filed its plea to the jurisdiction, asserting thta the annexation proceeding was barred by Code § 15.1--1055 in that five years had not passed since the entry of a final order in the annexation case filed by the City on January 8, 1971. On October 26, 1972 the annexation court sustained the County's plea to the jurisdiction and held the instant proceedings barred by Code § 15.1--1055. The court overruled all other pleas and motions of the County and of the intervenors. In view of our decision we consider only the trial court's ruling that this proceeding is barred by Code § 15.1--1055 which provides, in pertinent part, as follows:

'No city or town, having instituted proceedings to annex territory of a county, shall again seek to annex territory of such county within the five years next succeeding the entry of the final order in any annexation proceedings under this article or previous acts except by mutual agreement of the governing bodies affected, in which case the city or town moving to dismiss the proceedings before a hearing on its merits may file a new petition five years after the filing of the petition in the prior suit. Nor shall any county be made defendant in any annexation proceeding brought by any city, except by consent of the county governing body, more frequently than once in any five-year period following the conclusion of any annexation proceeding instituted against it by any city; . . .'

In Mowry v. City of Virginia Beach, 198 Va. 205, 209, 93 S.E.2d 323, 326 (1956), we said: 'The language of § 15--152.25 (now § 15.1--1055) is free and clear of ambiguity or obscurity.' In Portsmouth v. Chesapeake, 205 Va. 259, 269, 136 S.E.2d 817, 825 (1964), we said: '(W)here the language of a statute is free from ambiguity, its plain meaning is to be accepted without resort to the rules of interpretation. In that situation, we take the words as written and a resort to extrinsic facts to determine their meaning is not permitted.'

In this case we must determine whether Charlottesville twice 'instituted' annexation proceedings 'seeking' territory from Albemarle County within a five-year period. The word 'institute' is defined in Black's Law Dictionary 940 (4th ed. 1951) as '(t)o inaugurate or commence; as to institute an action . . ..' Among the definitions of 'institute' found in Webster's Third New International Dictionary 1171 (1966) are 'to originate and get established: set up: cause to come into existence: . . . to set on foot: INAUGURATE, INITIATE'. Among the definitions of 'seek' found in Webster's, p. 2055 are: 'to go in search of: look for: search for: . . . to try to acquire or gain: aim at: . . . to make an attempt.'

Rule 2:2 and Rule 3:3 of Rules of Court provide that a suit in equity and an action at law are 'instituted' and pending when a bill of complaint or motion for judgment is filed in the clerk's office. In Scott v. Nance, Adm'r, 202 Va. 355, 360--361, 117 S.E.2d 279, 282--283 (1960), we held:

'The first motion for judgment in this case was an abortive proceeding; but it is clear that it was, nevertheless, an action as defined by Rule of Court 3:3: '(a) Commencement of Action. An action shall be commenced by filing in the clerk's office a motion for judgment and by paying the required writ tax and deposit against costs. The action is then instituted and pending as to all parties defendant thereto.'

'We hold that the motion for judgment filed by J. C. Nance, administrator of the estate of Melvin R. Hamlett, on December 23, 1958, and dismissed without determining the merits of the motion, was such an action as tolled the statute of limitations under the provisions of Code, § 8--634. . . .'

In Henrico v. City of Richmond, 177 Va. 754, 15 S.E.2d 309 (1941) we made reference to the 'notices' that were required where an annexation proceeding had been 'instituted' and distinguished between the institution of a proceeding and the 'original planning and proposal' incident to such a proceeding. We further noted that an ordinance with respect to annexation may be repealed or disregarded and no proceeding ever 'instituted' thereon.

It is clear that within the meaning of Code § 15.1--1055 the City instituted an annexation proceeding when it filed its petition on January 8, 1971, and when it complied with Code § 15.1--1035 which provides, in part, that '(i)n any annexation proceeding instituted by it the city . . . shall give notice to the Commonwealth's attorney . . .'. The record shows that the City took the necessary steps required by the statute, submitted proof thereof and caused the matter to be docketed for hearing. It did all that the statute required for an annexation proceeding to be instituted.

After its first annexation proceeding was dismissed on January 10, 1972, the City did 'again seek to annex territory' from the County and instituted a proceeding when it adopted another annexation ordinance and filed its second petition for annexation.

The City argues that the adoption of an ordinance substantially complying with Code § 15.1--1033 is jurisdictional to the institution of an annexation proceeding and cites Portsmouth v. Chesapeake, Supra; Portsmouth v. Norfolk County, 198 Va. 247, 93 S.E.2d 296 (1956).

The City maintains that its first annexation ordinance, which was the basis of its January 8, 1971 annexation suit, was a void ordinance in that the court held that it failed to comply with Code § 15.1--1033(a). It argues that since the adoption of a proper ordinance is 'the first and...