City of Portsmouth v. Norfolk County, 4481

• Decision Date: 18 June 1956
• Docket Number: No. 4481,4481
• Citation: 93 S.E.2d 296,198 Va. 247
• Court: Virginia Supreme Court
• Parties: CITY OF PORTSMOUTH v. COUNTY OF NORFOLK. Record

Page 296

93 S.E.2d 296

198 Va. 247

CITY OF PORTSMOUTH v. COUNTY OF NORFOLK.

Record No. 4481.

Supreme Court of Appeals of Virginia

June 18, 1956.

R. C. Barclay, City Attorney and William L. Parker, for the appellant.

Edward L. Breeden, Jr. and James N. Garrett (Peter M. Axson, Jr., Commonwealth's Attorney, on brief), for the appellee.

JUDGE: SMITH

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

The question presented in this case is whether the trial court erred in dismissing an annexation proceeding instituted by the City of Portsmouth, referred to herein as the City, against the County of Norfolk, referred to herein as the County. The facts and proceedings pertinent to our discussion and answer to this question may be stated as follows.

On October 17, 1953, the City enacted an ordinance in which it was declared that the City desired to annex certain adjacent territory located in the County. The ordinance recited the metes and bounds and size of the area sought; declared that for seven enumerated reasons the proposed annexation was both necessary and expedient; stated certain terms and conditions upon which the City desired to annex the additional territory, and recited: 'That attached hereto and made a part hereof by this reference is an aerial photograph of the City of Portsmouth and the areas proposed for annexation, designated as Exhibit No. 1, and also a base map of the areas designated as Exhibit No. 2. These exhibits indicate generally the sub-divisions involved, industrial lands, farm and vacant areas and others.' The ordinance further 'directed and instructed' the City Attorney and the City Manager 'to institute and to prosecute with all reasonable dispatch the necessary legal proceedings' to consummate the proposed annexation, and stated that 'they are authorized in the name of the City to do all things necessary and essential to successfully handle the litigation.'

On November 18, 1953, the City filed its petition for annexation and the Commonwealth's Attorney and the several members of the Board of Supervisors of the County were served with notice that the City would, 'at 10:00 o'clock A.M., on the 29th day of December, 1953, move the Circuit Court of Norfolk County and/or the Honorable Judges who shall hear this case as provided by law, to make an order authorizing and declaring the annexation of certain territory in Norfolk County to the City of Portsmouth set out in an ordinance of the Council of the City of Portsmouth approved on the 17th day of October, 1953, as provided for by V.C. (1950) § 15-152.3.' A certified copy of the ordinance and accompanying aerial photograph and base map were attached to and served with the notice.

Pursuant to an order of the Circuit Court of Norfolk County the notice and ordinance were published in the Portsmouth Star, a daily newspaper published in the City, and on December 14, 1953, the editor of that publication certified in writing that the notice, ordinance, photograph and map had been published once a week for four successive weeks. A copy of the actual publication, which occupied one full page of the newspaper, was attached to the certificate of the editor.

Thereafter, on December 16, 1953, the Chief Justice of this court entered an order designating the Honorable Elliott Marshall, Judge of the Seventeenth Judicial Circuit, and the Honorable Rayner V. Snead, Judge of the Twenty-sixth Judicial Circuit, 'to preside in the Circuit Court of Norfolk County with Honorable Edward L. Oast, Resident Judge, as members of a three-judge court, authorized by section 15-152.8 of the Code of Virginia, 1950, in the case of City of Portsmouth, a Municipal Corporation v. Norfolk County, beginning on a date to be fixed by the Court.' The record does not show that anything further occurred in the case from the designation of the judges until March 24, 1955, when the County appeared specially and moved to quash the service, publication and returns, and dismiss the case, on the following stated grounds:

'1. The supposed publication in the newspaper is invalid under the statutes for annexation; and does not comply with Section 15-152.3 and Section 15-125.5 [sic] ¹ of the Code of Virginia as amended; and the maps therein are not legible and are invalid.

'2. The case has lapsed and failed. The day given in the notice for the motion was December 29, 1953, and no motion has been made. The statutes for annexation have not been complied with by the City of Portsmouth.'

In its final order the court, Judge Marshall dissenting, sustained the County's motion and dismissed the case, to which order we awarded the City this appeal.

The order of dismissal does not show the ground or grounds upon which it was based and no opinion was filed. We must therefore determine whether either of the grounds stated in the County's motion and argued in the briefs is sufficient to support the order dismissing the case. We shall first discuss the County's contention that the case was properly dismissed because the maps (aerial photograph and base map) incorporated in the ordinance were not legibly printed in the newspaper. While our examination of the published maps convinces us that they were not legibly reproduced in the newspaper, were confusing and were wholly unintelligible, we are of the opinion that this alone, under the circumstances of this proceeding, was not a sufficient ground for dismissing the case.

When a city or town desires to annex adjacent territory it must first pass an ordinance in compliance with Code, § 15-152.3, which provides as follows:

'Ordinance for annexation by city or town. -- The council of any city or town may by an ordinance passed by a recorded affirmative vote of a majority of all the members elected to the council, or to each branch thereof, if there are two, petition the circuit court of the county in which any territory adjacent to such city or town lies, for the annexation of such territory. Such ordinance shall set forth the necessity for or expediency of annexation and shall contain the following detailed information:

'(a) Metes and bounds and size of area sought;

'(b) Information, which may be shown on a map annexed to the ordinance, of the area sought to be annexed; indicating generally subdivisions, industrial areas, farm areas, vacant areas and others; together with any other information, deemed relevant as to possible future uses of property within the area. If a map is not annexed as part of the ordinance, then such information shall be set forth in the ordinance.

'(c) A general statement of the terms and conditions upon which annexation is sought, and the provisions planned for the future improvement of the annexed territory, including the provision of public utilities and services therein.'

After the passage of an ordinance pursuant to Code, § 15-152.3, the town or city is next required to comply with the provisions of Code, § 15-152.5, which provides as follows:

'Notice of motion: service and publication: docketing. -- In any annexation proceedings instituted by it the city or town shall give notice to the Commonwealth's Attorney and to each member of the governing body of the county wherein such territory lies that it will, on a given day, not less than thirty days thereafter, move the circuit court of the county wherein such territory lies, or the judges designated to hear the case, to grant the annexation requested in the ordinance, with which notice shall be served a certified copy of the ordinance. A copy of the notice and ordinance or an informative summary thereof shall be published at least once a week for four successive weeks in some newspaper published in such city or town, and when there is no newspaper published therein, then in a newspaper having general circulation in the county whose territory is affected. The notice and ordinance shall be returned after service to the clerk of the circuit court and when the publication is completed, of which the certificate of the owner, editor or manager of the newspaper publishing it shall be proof, the case shall be docketed for hearing.'

The County does not contend in this court that the ordinance enacted by the City fails to comply with any of the provisions of Code, § 15-152.3, but it does contend that since the information required by paragraph (b) of that section was not summarized in the ordinance but was, at the election of the City, incorporated therein by reference to the maps, the legible publication of those maps, or an informative summary of their contents, was essential to a valid publication of the ordinance under Code, § 15-152.5. The...