City of Roanoke v. Roanoke County

• Court: Virginia Supreme Court
• Writing for the Court: Before SNEAD; COCHRAN
• Citation: City of Roanoke v. Roanoke County, 198 S.E.2d 780, 214 Va. 216 (1973)
• Decision Date: 30 August 1973
• Parties: CITY OF ROANOKE v. COUNTY OF ROANOKE et al. COUNTY OF ROANOKE v. CITY OF ROANOKE et al. CITY OF SALEM v. COUNTY OF ROANOKE et al. Blanche WEDDLE et al. and Roy C. Kinsey, Sr., et al. v. COUNTY OF ROANOKE et al.

Page 780

198 S.E.2d 780

214 Va. 216

CITY OF ROANOKE v. COUNTY OF ROANOKE et al.

COUNTY OF ROANOKE v. CITY OF ROANOKE et al.

CITY OF SALEM v. COUNTY OF ROANOKE et al.

Blanche WEDDLE et al. and Roy C. Kinsey, Sr., et al. v. COUNTY OF ROANOKE et al.

Supreme Court of Virginia.

Aug. 30, 1973.

Rehearing Denied Oct. 8, 1973.

William R. Cogar, John S. Davenport, III, Richmond (James N. Kincanon, City Atty. for the City of Roanoke, John S. Barr, Richmond, William L. Martin, Roanoke, Mays, Valentine, Davenport & Moore, Richmond, Martin, Hopkins & Lemon, Roanoke, on brief), for appellant City of Roanoke.

W. H. Jolly, Salem, Robert C. Fitzgerald, Myron C. Smith, Fairfax (John N. Lampros, Commonwealth's Atty. for Roanoke County, Lawrence C. Musgrove, Roanoke, Fitzgerald & Smith, Fairfax, on brief), for appellees County of Roanoke and others in first action.

Robert C. Fitzgerald, Myron C. Smith, Fairfax (John N. Lampros, Commonwealth's Atty., for Roanoke County, Fitzgerald & Smith, Fairfax, on brief), for appellant County of Roanoke.

William R. Cogar; John S. Davenport, III, Richmond, W. H. Jolly, Salem (James N. Kincanon, City Atty., for the City of Roanoke; John S. Barr, Richmond, William L. Martin; Lawrence C. Musgrove, Roanoke, Mays, Valentine, Davenport & Moore, Richmond, Martin, Hopkins & Lemon, Roanoke, on brief), for appellees City of Roanoke and others.

W. H. Jolly, Salem (Kime, Jolly, Clemens & Canterbury, Salem, on brief), for appellant City of Salem.

William R. Cogar, John S. Davenport, III, Richmond, Robert C. Fitzgerald, Myron C. Smith, Fairfac (John N. Lampros, Commonwealth's Atty. for Roanoke County, James N. Kincanon, City Atty., for the City of Roanoke, William L. Martin, Roanoke, Mays, Valentine, Davenport & Moore, Richmond, Fitzgerald & Smith, Fairfax, Martin, Hopkins & Lemon, Roanoke, on brief), for appellees County of Roanoke and others in third action.

No opening brief on behalf of appellants Blanche Weddle and others.

John N. Lampros, Commonwealth's Atty. for Roanoke County, Robert C. Fitzgerald, Myron C. Smith, Fairfax, James N. Kincanon, City Atty. for the City of Roanoke, John S. Davenport, III, William R Cogar, John S. Barr, Richmand, William L. Martin, Roanoke, Fitzgerald & Smith, Fairfax, Mays, Valentine, Davenport & Moore, Martin, Richmond, Hopkins & Lemon, Roanoke, on brief, for appellees County of Roanoke and others in fourth action.

Before SNEAD, C.J., and I'ANSON, CARRICO, HARRISON, COCHRAN and HARMAN, JJ.

COCHRAN, Justice.

These appeals are from the final order entered February 29, 1972, by the annexation court in consolidated cases in which the City of Roanoke (Roanoke), the City of Salem (Salem), the County of Roanoke (County), and certain individual petitioners were parties. The County surrounds Roanoke and Salem, and a narrow urban corridor separates the Cities.

In 1965, qualified voters, proceeding under the provisions of Code & 15.1--1034, ¹ filed a petition styled Ivan R. Young, et al. v. Town of Salem and County of Roanoke for the annexation of an area to the Town of Salem. While Young was pending, other qualified voters filed a petition styled Blanche Weddle, et al. v. City of Roanoke and County of Roanoke for the annexation to Roanoke of certain territory, including a portion of the Young annexation area. The trial court granted the annexation sought by the Young petitioners. On appeal by Roanoke, an intervenor, we reversed and remanded the case to the trial court with directions to consolidate and hear Young and Weddle together, as required by Code § 15.1--1037(a). ² City of Roanoke v. Young, 208 Va. 618, 159 S.E.2d 661 (1968).

In 1966, qualified voters filed a petition styled Roy C. Kinsey, et al. v. City of Roanoke and County of Roanoke for annexation of other County territory to Roanoke.

On January 1, 1968, the Town of Salem became the City of Salem. Thereafter, qualified voters filed a petition styled Robert M. Willis, et al. v. City of Salem and County of Roanoke for annexation of County territory to Salem.

On June 9, 1969, Roanoke initiated a proceeding styled City of Roanoke v. County of Roanoke for annexation of the entire County, including the Town of Vinton which adjoins Roanoke on the east.

By order entered January 6, 1970, the five cases were consolidated, after which the duly designated three-judge annexation court heard and overruled all preliminary pleas, motions and demurrers. The proceeding was stayed during the pendency of the County's petition for a writ of prohibition which we dismissed. County of Roanoke v. Hoback et al., 211 Va. xlv (1970). The annexation court then reconvened to dispose of the consolidated proceeding on the merits.

After viewing the territory and hearing Roanoke's evidence the trial court sustained the County's motion to strike the City's evidence. Roanoke then moved for permission to intorduce evidence for the annexation of less than the entire County, and the court took this motion under advisement until after the petition cases were heard. Roanoke renewed the motion from time to time and proffered evidence as to two specified areas, Hunting Hills and Reed Mountain. The trial court ultimately denied the motion.

When the Young petition was heard, the court granted the County's motion to strike petitioners' evidence. As no error has been assigned to the dismissal of the Young petition, we need not consider it further.

The court dismissed the Willis petition on motion of petitioners' counsel before any evidence was introduced. Roanoke and Salem objected.

After the Weddle and Kinsey petitioners presented their evidence, the trial court overruled the County's motion to strike the evidence and permitted Roanoke to introduce evidence relating to only these petition areas as to compensation to the County for loss of net tax revenue, assumption of County debt, reimbursement for public improvements, and proposed expenditures after annexation. After hearing all the evidence, including that of the County, the trial court, one judge dissenting, awarded Roanoke .435 square miles of the 2.33 square miles sought in the Weddle petition and 2.16 square miles of the 2.87 square miles sought in the Kinsey petition.

Roanoke, Salem and the Weddle and Kinsey petitioners have assigned error to the manner in which the five cases were consolidated and heard. Roanoke has assigned error to the action of the court in striking the City's evidence, in denying the City's motion to present evidence for annexation of lesser areas, and in refusing to award the entire Weddle and Kinsey areas. The Weddle and Kinsey petitioners have also assigned error to the court's failure to order annexation to roanoke of the entire area sought in their petitions. Salem has assigned error to the court's dismissal of the Willis petition.

The County has assigned numerous cross-errors challenging the jurisdiction of the annexation court in the Weddle and Roanoke cases and the award of parts of the Weddle and Kinsey areas to Roanoke.

I

Jurisdictional Questions.

(a) Sufficiency of Weddle petition.

The Weddle petition was filed on May 19, 1966. Special commissioners appointed by the trial court reported that on the date of filing the signatures of 467 (61.528%) of the qualified voters in the area proposed to be annexed were affixed to the petition. They further reported that 65 qualified signers requested removal of their names on or before June 30, 1966, reducing the total to 52.964% As of that date, and that an additional 35 qualified signers filed a petition on or before June 30, 1966, requesting that their properties not be annexed. The commissioners did not remove these 35 signatures from the annexation petition. The County excepted to the Commissioners' Report on the ground that the 467 qualified signers should have been reduced by the 35 petitioners as well as by the 65 signers who had requested removal. This reduction would have left an insufficient percentage, 48.5%, of the qualified voters on the petition as of the return date. The trial court overruled the County's exception.

In Gonzales v. Wyatt, 202 Va. 402, 117 S.E.2d 669 (1961), we considered a similar problem. There, voters filed a petition for a referendum, and the trial court appointed special commissioners to determine whether the petition contained the signatures of the required number of qualified voters. Before the commissioners reported their findings, the trial court permitted various petitioners to withdraw their signatures, thereby reducing the number below the statutory minimum. We reversed, noting that, in addition to the filing of the petition, other action had been taken when the signers undertook to withdraw their signatures. We held that jurisdiction had attached when the order appointing special commissioners was entered, and that the trial court therefore erred in permitting the withdrawals. We did not find it necessary to decide whether a petitioner could withdraw his signature after the petition had been filed but before it had been acted upon.

We now hold that in an annexation proceeding under Code § 15.1--1034 the determination whether a petition contains the required number of signers is to be made as of the date of filing. Although the authorities are not in agreement on the subject, See Annot., 27 A.L.R.2d 604, 608 (1953), Annot., 126 A.L.R. 1031, 1036 (1940), we prefer this rule which eliminates uncertainty and comports with our rules governing the commencement of other civil litigation. Rules 2:2, 3:3(a). As the signatures of more than 15% Of the qualified voters were affixed to the Weddle petition on the date of filing, the trial court did not err in overruling the County's exception to the Commissioners' Report and its plea to the jurisdiction based on the same exception.

In another challenge to the sufficiency of the Weddle petition the County moved for dismissal on the ground that the territory sought was not determined until after the petition was...