City Of Newport News v. Elizabeth City County

• Decision Date: 07 September 1949
• Parties: CITY OF NEWPORT NEWS. v. ELIZABETH CITY COUNTY.
• Court: Virginia Supreme Court

55 S.E.2d 56

189 Va. 825

CITY OF NEWPORT NEWS.

v.ELIZABETH CITY COUNTY.

Supreme Court of Appeals of Virginia.

Sept. 7, 1949.

Proceeding by the city of Newport News, a municipal corporation, against Elizabeth City County for a judgment declaring un constitutional Code 1942, § 2968, prohibiting annexation by a city of a portion of any county unless there will remain in such county at least 60 square miles of unannexed territory.

The Circuit Court of Elizabeth City County, Frank A. Kearney, J., entered a judgment holding the statute constitutional and plaintiff brings error.

The Supreme Court of Appeals, Spratley. J., reviewed the history of the statute and held that it was a valid exercise of legislative power under the Constitution to provide by general law for extension and contraction of the corporate limits of cities and not a special act and affirmed the judgment.

[COPYRIGHT MATERIAL OMITTED.]

Before HUDGINS, C. J, and GREGORY, EGGLESTON, SPRATLEY, BUCHANAN, STAPLES and MILLER, JJ.

Harry L. Nachman, Charles E. Ford, Newport News, for plaintiff in error.

James G. Martin & Son, Norfolk, J. Wilton Hope, Jr., Hampton, for defendant in error.

Conway H. Sheild, Jr., Denbigh, Thomas B. Gay, H. Merrill Pasco, Richmond, amici curiae.

SPRATLEY, Justice.

This proceeding was instituted by the city of Newport News, Virginia, under the Virginia Declaratory Judgment Act, Acts 1922, page 902, Virginia Code, 1942, (Michie), sections 6140a-6140h, inclusive, to determine the constitutionality of an Act of the General Assembly of Virginia, which prohibits a city from annexing an area or portion of any county "unless, after the annexation of said area, there will remain in said county at least as much as sixty square miles of unannexed territory", Acts 1938, page 25, Virginia Code, 1942, (Michie), section 2968.

The petition of the city alleged that it was bounded on the north by Warwick county; on the east by Elizabeth City county; on the west by James River; and on the south by the waters of Hampton Roads; that Elizabeth City county contained approximately 53 square miles of area; that because of necessity and expediency the city intended to bring annexation proceedings to acquire certain areas in Elizabeth City county adjoining the city; that by virtue of the Act of 1938, which the county relied on as a complete defense to any annexation proceedings, the city was prohibited from acquiring any territory in that county; and that an actual controversy existed between the city and Elizabeth City county.

The petition further sets out that Warwick county claimed "approximately 63 square miles in area, " and consequently the Act prohibited the city from expanding to the north except for a few square miles; that the city of Hampton, wholly confined within Elizabeth City county, was, because of said Act barred from extending its territorial limits in any direction except to take in some land in the county upon which its high school building had been erected; that the only other county in Virginia having less than 60 square miles is Arlington county and the only other city similarly situated which is affected by the Act is the city of Alexandria, which while prevented from expanding its limits into Arlington county has the right to annex territory in Fairfax county, a larger county.

The petition alleged that the Act was conceived, introduced, and enacted through the influence of the Honorable G. A. Massenburg, the Delegate from Elizabeth City county in the General Assembly, for the sole purpose of preventing Newport News from expanding its territorial limits into Elizabeth City county, or into Warwick county except for a few square miles; that the Act in its nature, design, purpose and effect is discriminatory and special legislation, and in conflict with the Constitution of Virginia and the general annexation laws of the State; and is so unreasonable, arbitrary and unjustifiable in effect as to prevent the expansion of the city of Newport News in an easterly direction, regardless of its growth and needs.

The bill prayed for a declaratory judgment, declaring the Act unconstitutional on the grounds that it is in conflict with the Constitution of Virginia and contravenes chapter 120 of the Code of Virginia, 1942, (Michie), as amended, providing for the extension of the corporate limits of cities, based upon the necessity and expediency for annexation of additional territory.

A demurrer was filed on behalf of the county on the grounds: (1) That it was not suable on the case alleged; (2) that the petition was premature in that it failed to show any actual controversy between the parties, because no ordinance for annexation had been adopted by the council of the city; (3) that the plaintiff had a plain remedy at law by which to test the Act by annexation proceedings; and (4) that the petition showed that the Act was constitutional and valid.

The case was heard on the petition and demurrer. In addition to the facts admitted by the pleadings, the court took judicial cognizance of certain other facts mostly geographical and territorial, which are set out in the written opinion of the trial judge. After due consideration, the trial court overruled the demurrer as to the first three grounds but sustained the fourth ground and held the Act was constitutional.

The city applied for and obtained this writ of error.

The county of Elizabeth City filed no cross-appeal. In its brief and argument no mention is made of the first and third grounds of demurrer.¹ In this court, however, it relies upon the second ground--that the petition was premature because it did not show the existence of an actual controversy between the parties.

We do not deem it proper or necessary to consider this contention here further than to say that the record and the briefs disclose an actual controversy between the parties, a controversy whichlacked only the preliminary steps in the prosecution of a suit to bring the annexation issue into court.

The sole issue for our determination is the constitutionality of the Act of 1938.

At the outset of this consideration it must be remembered that every presumption is made in favor of the constitutionality of an act of the legislature. A reasonable doubt as to the constitutionality of a law must be resolved in favor of its validity. The Constitution is not a grant of power, but only the restriction of powers otherwise practically unlimited and except so far as restrained by the Constitution of this State and the Constitution of the United States, the legislature has plenary power. It is only in a case where a statute is plainly repugnant to some provision of the Constitution that the courts can declare it null and void. The wisdom and propriety of the statute come within the province of the legislature. Almond v. Gilmer, 188 Va. 822, 834, 51 S.E.2d 272, and cases cited.

By section 61 of the Constitution of Virginia it is provided:

"No new counties shall be formed with an area of less than six hundred square miles; nor shall the county or counties from which it is formed be reduced below that area; nor shall any county be reduced in population below eight thousand. But any county, the length of which is three times its mean breadth, or which exceeds fifty miles in length, may be divided at the discretion of the general assembly."

Section 126 of the Constitution is as follows:

"The general assembly shall provide by general laws for the extension and the contraction, from time to time, of the corporate limits of cities and towns; and no special act for such purpose shall be valid."

The Constitution itself in section 61 fixes a limitation both upon the area and population below which a county may not be reduced, under circumstances mentioned, regardless of the needs or necessity of any city, town or other county.

Section 126, in broad and general terms, empowers the General Assembly to provide by general laws for the extension and contraction of the corporate limits of cities and towns. This is not a self-operating section. The mode of the proceedings, the agency therefor, the conditions and the limitations thereon, are required to be provided by legislative action within constitutional limits. Accordingly, the legislature has proceeded to provide such requirements under the provisions found in chapter 120 of the Code of Virginia, 1942 (Michie), sections 2956 to 2971(1), in which section 2968, the Act of 1938, is included. The nature and extent of the proceedings authorized are dependent upon legislative action, within constitutional limitations, and, therefore, the courts have power only to determine whether the legislation is in conflict with constitutional provisions and not whether it is wise or proper.

In vew of the city's contention that the procedure and manner of enactment of the Act shows that it is special legislation rather than general, singling out Newport News as its victim, we will first consider the legislative history of the Act.

The Act of 1938, page 25, in its entirety, reads as follows:

"In no annexation proceedings instituted by any city or town under the provisions of this chapter or the provisions of any other statute, shall an area or portion of any county be annexed to any city unless, after the annexation of said area, there will remain in said county at least as much as sixty square miles of unannexed territory; provided, however, that if prior to the passage of this act any city has become and is now the owner of a public building or buildings situated on territory or land immediately contiguous to said city, then said city shall be permitted to institute and conduct, in accordance with the provisions of the statutes applicable, proceedings for the annexation of the land on which said building or buildings are situated, and a sufficient area surrounding same to permit of the reasonable use of said building or buildings for the purposes for which same are customarily used, even though after such annexation the...