City of Portsmouth v. City of Chesapeake

• Decision Date: 15 June 1964
• Docket Number: No. 5725,5725
• Citation: 205 Va. 259,136 S.E.2d 817
• Parties: CITY OF PORTSMOUTH v. CITY OF CHESAPEAKE (FORMERLY COUNTY OF NORFOLK). Record
• Court: Virginia Supreme Court

Page 817

136 S.E.2d 817

205 Va. 259

CITY OF PORTSMOUTH v. CITY OF CHESAPEAKE (FORMERLY COUNTY OF NORFOLK).

Record No. 5725.

Supreme Court of Appeals of Virginia

June 15, 1964.

Henry T. Wickham and William B. Spong, Jr. (J. Stanley Livesay, Jr.; David J. Mays; Cooper, Spong & Davis; Tucker, Mays, Moore & Reed, on brief), for the plaintiff in error.

James N. Garrett and Edward L. Breeden, Jr. (William L. Forbes; James N. Garrett, Jr.; Breeden, Howard & MacMillan on brief), for the defendant in error.

JUDGE: EGGLESTON

EGGLESTON, C.J., delivered the opinion of the court.

On December 11, 1961, pursuant to Code, 1956 Replacement Vol., § 15-152.5, the City of Portsmouth filed in the Clerk's Office of the Circuit Court of Norfolk County a petition for the annexation of certain territory lying in Norfolk County and adjacent to the city. Attached to the petition was a certified copy of an ordinance adopted by the council of the city on December 9, setting forth the necessity for an expediency of such annexation and the metes and bounds and size of the territory sought to be annexed.

After the required preliminary orders had been entered and a three-judge court constituted pursuant to Code, 1956 Replacement Vol., § 15-152.8, the county filed a motion to dismiss the suit on the ground that, in violation of Code, 1962 Cum. Supp., § 15-152.25, as amended, this proceeding had been commenced within five years next succeeding the entry of a final order in a prior annexation proceeding. By a majority vote of the annexation court this motion was overruled.

Effective on January 1, 1963, Norfolk County and the City of South Norfolk had consolidated to form the City of Chesapeake. Thereafter, on motion of the City of Portsmouth, Chesapeake was substituted for Norfolk County as a party defendant. Chesapeake filed a special plea and several motions to dismiss, challenging the jurisdiction of the court to entertain the proceeding.

In a final order the annexation court sustained Chesapeake's plea that neither the Constitution of Virginia nor the applicable statutes permit the annexation of the territory of 'one municipal corporation' by 'another municipal corporation.' It also sustained Chesapeake's motion to dismiss the proceeding on the ground that it was prematurely instituted and was without validity in that it was based on an emergency ordinance which had not been enacted in the manner required by the charter of the City of Portsmouth. For these reasons the court dismissed the proceeding.

We granted the City of Portsmouth a writ of error. In its assignments of error the city attacks the action of the annexation court in dismissing the suit on the grounds asserted by the City of Chesapeake in its plea and motion to dismiss.

In the same final order the annexation court overruled Chesapeake's several other motions to dismiss, to which action Chesapeake has filed assignments of cross-error.

In support of its plea sustained by the court, Chesapeake contends that both § 126 of the Constitution of Virginia and the general annexation statutes passed pursuant thereto contemplate the extension of the corporate boundaries of a city by annexing a part of the territory of a county, but not a portion of the territory of another city or municipal corporation; that § 126 of the Constitution requires the enactment of general laws for the extension and the contraction of the corporate limits of a city and prohibits any special act for such purpose; and that Code, 1962 Cum. Supp., § 15-152.29, as amended, and § 21.10 of the charter of Chesapeake, relied upon by Portsmouth, are special acts prohibited by § 126 of the Constitution.

Section 126 of the Constitution reads: '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.'

Code, § 15-152.29, as amended by Acts of 1962, ch. 265, p. 391, after prohibiting the institution of annexation proceedings by a city or town and the consolidation of a city or town with any other county, city or town for a stated period, contains this proviso: 'provided, however, that this section shall not apply * * * (iii) to the prosecution of any valid annexation proceedings against any county, notice of which was given to the Commonwealth's Attorney and to each member of the governing body of said county prior to the date the consolidation agreement was approved by the governing bodies of said county and such other county, city or town seeking to consolidate and the right is hereby expressly granted to any such city seeking to annex to proceed with any such valid annexation suit against such county, pending as aforesaid, as if consolidation had not taken place and the consolidated city may be substituted as party defendant.' (Emphasis added.)

Section 21.10 of the charter of the City of Chesapeake reads as follows:

'Pending Annexation Suits. The granting of this charter shall not affect the prosecution of any valid annexation proceedings against Norfolk County, notice of which was given to the Commonwealth's Attorney and to each member of the governing body of the said Norfolk County prior to the date the consolidation agreement was approved by the governing bodies of the said County and the City of South Norfolk; and the right is hereby expressly granted to any such city to proceed with any such valid annexation suit against Norfolk County, pending as aforesaid, as if consolidation had not taken place, and the consolidated city may be substituted as party defendant.' Acts of 1962, ch. 211, p. 316. (Emphasis added.)

It will be observed that § 126 of the Constitution, supra, requires that the General Assembly 'provide by general laws for the extension and the contraction' of the corporate limits of cities and towns and prohibits a 'special act' for such purpose.

We do not agree with the contention of Chesapeake that the proviso or saving clause in Code, § 15-152.29(iii) is special legislation prohibited by § 126 of the Constitution. This saving clause expressly grants the right to any city to proceed with any valid annexation suit, notice of which was given prior to the date a consolidation agreement was approved by the governing bodies of a county and city, as if consolidation had not taken place. This is expressed in general language and on its face the provision applies to all cities and counties which may be similarly situated and come within the classification. See City of Newport News v. Elizabeth City County, 189 Va. 825, 839, 841, 55 S.E.2d 56, 64, 65; Ex parte Settle, 114 Va. 715, 718, 77 S.E. 496, 497.

Neither is § 21.10, supra, of the charter of the City of Chesapeake within the prohibition of § 126 of the Constitution. While it is incorporated in the charter of the city, which, of course, is a special act, it is not the type of special act within the purview of the constitutional provision.

Prior to the adoption of the Constitution of 1902, the General Assembly exercised the power of enlarging the limits of cities and towns by passing special acts, each act authorizing the enlargement of some particular city or town. Deeming it unwise for the General Assembly to continue to exercise this power, the Constitutional Convention adopted § 126. See Henrico County v. City of Richmond, 106 Va. 282, 290, 55 S.E. 683, 117 Am.St.Rep. 1001; Falls Church v. Board of Sup'rs of Fairfax County, 193 Va. 112, 114, 68 S.E.2d 96, 98. This section requires that 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 that no 'special act' for such purpose shall be valid. The obvious purpose of the provision is to prohibit the determination by special act of what amount of territory should be annexed to a city or how its limits should be contracted.

Section 21.10 of Chesapeake's charter does not provide 'for the extension' of the corporate limits of the City of Portsmouth, nor does it specify what territory should be annexed thereto. As its title indicates, it deals with 'Pending Annexation Suits.' Its plain purpose is to preserve the right to prosecute 'any valid annexation proceedings against Norfolk County' which may have been properly instituted prior to the approval of the consolidation agreement between that county and the City of South Norfolk. Specifically, it preserved the right to the City of Portsmouth to proceed with the present proceeding provided it was a 'valid annexation suit.'

Moreover, § 21.10 of the charter is in conformity with Code, § 15-228, which reads as follows: 'Any action or proceeding pending by or against any counties, cities or towns so consolidated may be perfected to judgment as if such consolidation had not taken place, or the consolidated city, or county or counties if any may be substituted according to where the cause of action arose.' (Emphasis added.)

Pursuant to this latter section, on motion of the City of Portsmouth, the City of Chesapeake was properly substituted as a party defendant in place of Norfolk County.

Section 21.10 of Chesapeake's charter is likewise in conformity with § 20.09 of the charter which provides that all actions of every kind pending in the courts of the City of South Norfolk and Norfolk County on the effective date of the charter, 'shall be transferred to and proceed to final judgment in the appropriate courts of the Consolidated City.' Acts of 1962, ch. 211, p. 315.

There is no constitutional prohibition against the annexation by a city of a portion of the territory of another city. In the absence of such a prohibition, the General Assembly has power to deal with the subject. 4 Mich. Jur., Constitutional Law, § 31, p. 114, and cases there cited.

It is true, as Chesapeake argues, that the general annexation statutes are designed for the enlargement of the boundaries of a city by...