City of Falls Church v. Board of Sup'rs of Fairfax County

• Court: Virginia Supreme Court
• Writing for the Court: WHITTLE
• Citation: City of Falls Church v. Board of Sup'rs of Fairfax County, 68 S.E.2d 96, 193 Va. 112 (1951)
• Decision Date: 03 December 1951
• Docket Number: No. 3826,3826
• Parties: CITY OF FALLS CHURCH v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY, ET AL. Record

Page 96

68 S.E.2d 96

193 Va. 112

CITY OF FALLS CHURCH v. BOARD OF SUPERVISORS OF FAIRFAX COUNTY, ET AL.

Record No. 3826.

Supreme Court of Appeals of Virginia

December 3, 1951.

La Rue Van Meter, Edwards, Rogers and Cudlipp and Lytton H. Gibson, for the appellant.

Frank L. Ball, John F. Bethune, Arthur C. Stickley, II, Robert J. McCandlish, Jr., Hugh B. Marsh and Gardner L. Boothe, for the appellees.

JUDGE: WHITTLE

WHITTLE, J., delivered the opinion of the court.

This is an appeal granted the City of Falls Church in an annexation proceeding prosecuted under Title 15, Chapter 8, of the Code of Virginia, 1950, against the county of Fairfax. The annexation ordinance adopted pursuant to section 15-125 of the Code was duly advertised and, together with the petition, was served upon the county.

The annexation court, composed of resident Judge Paul E. Brown, Judge J. R. H. Alexander of the twenty-sixth circuit, and Judge Burnett Miller, Jr. of the ninth circuit, appointed pursuant to section 15-133 of the Code to hear and determine the issues, duly convened and began the hearing on June 19, 1950. The county of Fairfax and numerous interveners filed answers to appellant's petition, all vigorously stressing their opposition to annexation.

The presentation of the case followed the usual course employed in the trial of these cases, and was terminated on July 20, 1950, when the court unanimously entered the following order:

'This matter having come on to be heard, and the court having considered all pleadings in this case, and all the evidence introduced, and having made a personal inspection of the territory involved, and having heard arguments of counsel, and the court having duly considered the same, being of the unanimous opinion that the annexation prayed for by the petitioner is not necessary or expedient, considering the best interests of the county, the city and the best interests, services to be rendered and needs of the area proposed to be annexed, and the best interests of the remaining portion of the county;

'It is therefore, the judgment and order of this court that the prayer of the said petition be, and is hereby denied, and that this case be, and the same is hereby dismissed. * * *'

This final order is the basis of the appeal.

The City of Falls Church was incorporated as a town in 1875 by the General Assembly of Virginia, Acts 1875, Chapter 316. It originally contained within its borders land from both Alexandria (now Arlington) and Fairfax counties. In 1887 the boundaries of the town were contracted when 450 acres were returned to Fairfax county by the General Assembly. See Acts 1887, Chapter 364.

Again, in 1936, upon petition filed by 91 of the 123 qualified voters, that portion of the town located in Arlington was removed from the corporate limits and made a part of Arlington county. Falls Church v. County Board, 166 Va. 192, 184 S.E. 459.

On August 16, 1948, the population of Falls Church exceeded 5,000 and under proceedings in the Circuit Court of Fairfax county an order was entered making it a city of the second class. Within a year from this time an annexation suit was instituted in which the city sought to annex substantially the same area contended for in the instant case. This suit was withdrawn at the request of the city attorney because of improper publication of the annexation ordinance.

On February 23, 1950, the city filed the present suit. City of Falls Church has a population of 7,526 and embraces 1,305 acres. The annexation ordinance seeks to take in an additional 6,880 acres with a stipulated population of 14,000.

Annexation law has developed in Virginia as follows:

Prior to the adoption of the Constitution of 1902, the only method available for the enlargement of the boundaries of cities and towns was by recourse to the General Assembly. Annexation was then considered exclusively a legislative function.

The Constitutional Convention of 1902 passed Article VIII, Section 126, which provided:

'* * * the General Assembly shall provide by general law for the extension and contraction from time to time of the corporate limits of cities and towns; and no special act for such purpose shall be valid.'

Pursuant to the above provision the 1904 session of the General Assembly passed an Act providing:

'* * * whenever it is deemed desirable by any city or town to annex any territory to such city or town, its council shall declare by an ordinance * * * that it desires to annex certain territory * * * and set forth the necessity for or expediency of annexation, and the terms and conditions upon which it desires to annex such territory, as well as the provisions which are made for its future management and improvement. * * *' Acts 1904, pages 144, 148; Va. Code, 1904, § 1014a(1).

Section 1014a(3), Virginia Code of 1904, provides:

'The court, without a jury, shall be held and presided over by a judge of some circuit court of this State other than the circuit in which either the city desiring the territory to be annexed or the said territory to be annexed lies, and remote therefrom, said judge to be designated by the Governor of this State, and the court * * * shall ascertain and determine the necessity for or expediency of annexation, * * *.'

By enacting this general law it will be noted that the legislature delegated the authority over annexation to a judge of a remote circuit.

Section 15-133 of the Code of 1950 provides:

'The court, without a jury, shall be held and presided over by three judges, as follows: The judge of the circuit court of the county in which the territory sought to be annexed lies; the judge of the circuit court of the city to which the territory is to be annexed, if the territory is to be annexed to a city having a circuit court, and a judge of some circuit court in this State remote from the territory to be annexed, to be designated by the Chief Justice of the Supreme Court of Appeals. * * *'

The court in the instant case was created under this section, and such courts exercise, to a degree, legislative as well as judicial functions.

The 1904 Act required the city to prove 'the necessity for or expediency of' annexation before the court was authorized to order it. Henrico County v. Richmond, 106 Va. 282, 295, 55 S.E. 683, 117 Am.St.Rep. 1001.

The General Assembly, in 1928, (Acts 1928, page 1076) amending Code, § 2958 (now Code, 1950, § 15-135), changed the previous requirement for annexation from necessary or expedient to necessary and expedient. In this connection, the Act provides:

* * * and if the majority of the court shall be satisfied of the necessity for and expediency of such annexation, * * * an order shall be entered providing for the annexation of such territory, but if a majority of the court shall be of the opinion that no annexation is necessary or expedient, the motion to annex shall be dismissed. * * *' (Italics supplied)

This change in the wording of the statute was recognized in County of Norfolk v. Portsmouth, 186 Va. 1032, 1045, 45 S.E. (2d) 136, 142, where Mr. Justice Staples, speaking for the court, cites the revised statute and states: 'Therefore, the evidence must sustain the finding of the Circuit Court that it is both necessary and expedient.' (Italics supplied)

Section 15-135 of the 1950 Code of Virginia contains language added by the General Assembly in 1948. (Acts 1948, page 589.) The language now employed three times in this Code section reads: '* * * considering the best interests of the county, the city and the best interests, services to be rendered and needs of the area proposed to be annexed, and the best interests of the remaining portion of the county, * * *.'

The city's petition alleges that it desperately needs the area embraced in the ordinance; that most of the available land within its borders has been built up, and that its future growth will be impeded unless it is permitted to take in more territory. It is further alleged that the area needs the services which the city can give. The city charges that the citizens within the boundary sought to be annexed lack or are deficient in such services as (1) police protection (2) recreational facilities (3) fire protection (4) streets, sidewalks, curbs and gutters (5) library facilities (6) planning and subdivision control (7) garbage and trash collection (8) water supply (9) health and welfare service (10) schools (11) sewers, and (12) storm drains.

It is intimated that the city is proficient in the above services and that it intends to share these blessings with the residents of the annexed territory if and when the territory is placed under its jurisdiction.

The answers filed by the county and the interveners, composed of 800 residents of the city and 665 residents of the area proposed to be annexed, and the Alexandria Water Company, deny the allegations in the petition.

Appellees contend that the City of Falls Church is not furnishing urban governmental services to its residents and that its failure to furnish these services to its present compact city is an indication that it cannot improve the services to the residents of the area sought to be annexed. Appellees further assert that the residents of this area are now living under a modern government furnished by Fairfax county and the services which they now receive are far superior to those...