City of Morgantown, Matter of, 13638

• Decision Date: 23 July 1976
• Docket Number: No. 13638,13638
• Citation: 159 W.Va. 788,226 S.E.2d 900
• Court: West Virginia Supreme Court
• Parties: In the Matter of the proposed Annexation to the CITY OF MORGANTOWN, etc.

Page 900

226 S.E.2d 900

159 W.Va. 788

In the Matter of the proposed Annexation to the CITY OF MORGANTOWN, etc.

No. 13638.

Supreme Court of Appeals of West Virginia.

July 23, 1976.

Syllabus by the Court

1. 'To entitle any person to obtain a writ of error or appeal from a judgment, he must be both a party to the case and be aggrieved by the judgment.' Point 1 Syllabus, Williamson v. Hays, 25 W.Va. 609 (1885).

2. The powers exercised by a county commission with regard to municipal annexation are wholly statutory and it can exercise no other powers except those implicit in the specific grant.

3. The function performed by a county commission, pertaining to municipal annexation by minor boundary adjustment, is that of an administrator and not a party to the proceedings.

4. The nature and character of the function of a county commission, pursuant to W.Va.Code, 8--6--5, as As amended, precludes any finding of an implicit statutory power to appear and defend the legality of its own decisions or to prosecute an appeal from a reversal of its decision.

5. A county commission, which exercises its authority under W.Va.Code, 8--6--5, As amended, has no interest, personal or official, in the municipal annexation matters which come before it other than to administer the law and thus has no standing to prosecute an appeal as an aggrieved party.

David L. Solomon, Pros. Atty., Beverly Stickman, Legal Intern, Morgantown, for County Commission.

Frank J. Depond, William A. Moreland, Morgantown, for City of Morgantown.

FLOWERS, Justice:

The subject matter of this appeal is the annexation of 643.7845 acres of land to the corporate limits of the City of Morgantown. The City petitioned the County Commission of Monongalia County to annex the acreage as a minor boundary adjustment pursuant to the provisions of W.Va.Code, 8--6--5, As amended. Of the 643.7845 acres, the City owned 639.5246 acres upon which it operated and maintained a municipal airport. The remainig 4.26 acres were owned by Guy F. Harner and Fairlawn Homes, Inc. Three persons resided on the acreage to be annexed. None were freeholders. After a hearing, the County Commission entered an order refusing the prayer of the annexation petition filed by the City. The City sought a review of that order by writ of error to the Circuit Court of Monongalia County. The Circuit Court reversed the judgment and ordered the proposed annexation. From that judgment, the County Commission was awarded a writ of error to this Court to review the propriety of the judgment of the Circuit Court.

The City initially contends that the County Commission is not a proper party appellant. Such assertion constitutes a challenge to the jurisdiction of this Court to entertain the writ of error. See Mackin v. County Court, 38 W.Va. 338, 350, 18 S.E. 632, 636 (1893). If the County Commission has no right to obtain a writ of error, the appeal must be dismissed as improvidently awarded. Willamson v. Hays, 25 W.Va. 609 (1885). Preliminary to a determination of whether the County Commission is a party to the proceeding and is aggrieved by the judgment rendered in the circuit court, a brief recitation of the events preceding the appeal will perhaps be helpful.

The annexation petition filed by the City with the County Commission met the statutory requirements set forth in W.Va. Code 8--6--5, As amended. In response to the petition the County Commission entered an order filing the petition and reciting that it 'appeared' that the statutory requirements for the petition had been met and that the annexation prayed for was only a minor boundary adjustment. The order set a date for hearing and required publication of a notice of the hearing as a Class II--0 legal advertisement in compliance with the provisions of W.Va.Code, 8--6--2, As amended.

At the hearing on February 25, 1975, the Commission entertained evidence on the proposed annexation. The evidence established that a notice of the hearing had been properly published and other statutory requirements had been met. The City, through its city engineer, offered evidence that the tract of 643.7845 acres represented one percent of the total area of the city ¹ and that the City already provided all municipal services to the area.

A citizen of Morgantown, Milton Cohen, who did not live or own property in the area of proposed annexation objected to the annexation upon the ground that it did not constitute a minor boundary adjustment. He contended that annexation should not be effected absent a public hearing and citizen participation through an election. Cohen filed his written objections with the Commission praying that the petition for annexation be rejected.

On March 31, 1975, the County Commission entered an order rejecting the annexation petition. The decision was based on findings of the Commission that the excessive amount of acreage involved, as a matter of law, did not constitute a minor boundary adjsutment and that the annexation did not improve, straighten or align existing boundaries and would create unreasonable corporate boundaries.

The City petitioned the Circuit Court of Monongalia County for a writ of error from the order of the Commission. The County Commission filed a demurrer and motion to dismiss the petition.

The Circuit Court denied the demurrer and motion to dismiss and reversed the order of the County Commission on the ground that the findings of the Commission were not pertinent to the issue except the finding of acreage, which did not remove the petition for annexation from the provisions of the statute permitting minor boundary adjustments. The Circuit Court granted the minor boundary adjustment to include the 643.7845 acres.

In view of the challenge to the jurisdiction of this Court, we must determine initially whether the County Commission is a proper party appellant. Both the special qualifications of the County Commission as a litigant and the general qualifications as an appellant must be reviewed. To obtain an appeal or writ of error from this Court, a petitioner must be 'a party to a controversy' in the lower court and aggrieved by the judgment rendered. W.Va.Code, Code, 58--5--1; Williamson v. Hays, supra. Our jurisdiction to review the decision of the circuit court, therefore, is dependent upon whether the County Commission is an aggrieved party legally entitled to prosecute an appeal. The Commission's status in this regard turns in part upon its function and the nature of its powers in an annexation proceeding.

The Municipal Home Rule Amendment, ² ratified in 1936, required the Legislature to provide by General law for the incorporation and government of all municipalities. Prior to this constitutional amendment, the Legislature with very limited restriction, was empowered to exercise its absolute power over municipalities through special acts. ³ In response to the mandate of the new constitutional provision, the Legislature in 1937 enacted general laws providing for the increase and decrease of territorial limits. ⁴ These annexation statutes, now contained in article six of chapter eight of the Code of West Virginia, provide three methods for properly altering municipal boundaries by annexation of additional territory. Section 2 provides for annexation upon an election initiated by a petition. Section 4 provides for annexation without an election upon petition of sixty percent of the voters and freeholders of the additional territory. Section 5 authorizes annexation 'by minor boundary adjustment'.

Through the enactment of these general laws, the Legislature delegated certain functions and responsibilities to the county commission of each county. A county commission is required to perform a ministerial function when it enters an order reflecting the change in boundaries after...