City Of St. Marys v. Woods

• Decision Date: 15 February 1910
• Citation: City Of St. Marys v. Woods, 21 Ann.Cas. 164, 67 W.Va. 110, 67 S.E. 176 (W. Va. 1910)
• Court: West Virginia Supreme Court
• Parties: CITY OF ST. MARYS et al. v. WOODS,Judge, et al.

67 S.E. 176

67 W.Va. 110

CITY OF ST. MARYS et al.

v.WOODS, Judge, et al.

Supreme Court of Appeals of West Virginia.

Feb. 15, 1910.

(Syllabus by the Court.)

1. Municipal Corporations (§ 46^*)—Charter—Amendment—Jurisdiction op Circuit Court.

A circuit court has no jurisdiction or power to amend the charter of a city or town granted by special act of the Legislature.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. S§ 123-125; Dec. Dig. § 46.*]

2. Municipal Corporations (§ 46*)—Amendment of Charter — Jurisdiction of Circuit Court.

When a charter has once been granted to a city or town by special act of the Legislature, though the population of such city or town afterwards decrease below 2, 000, this does not put it under the power of the circuit court to amend its charter.

[Ed. Note.—For other cases, see Municipal Corporations, Cent. Dig. §§ 123-125; Dec. Dig. § 40.*]

3. Prohibition (§ 5*) — When Lies — Court Acting Beyond Its Jurisdiction.

A circuit court, in a proceeding to amend a town or city charter, acts in a quasi judicial character, and, if it has no proper jurisdiction or power to act in the particular case on the subject-matter before it, a writ of prohibition lies against the court.

[Ed. Note.—For other cases, see Prohibition, Cent. Dig. §§ 20-30; Dec. Dig. § 5.*]

4. Prohibition (§ 15*)—Writ of—Who May Maintain.

A city, or persons who are residents and taxpayers in it, have such interest as will enable them to maintain a writ of prohibition against a circuit court which is proceeding to amend the charter of such city without jurisdiction to do so in the particular case.

[Ed. Note.—For other cases, see Prohibition, Cent. Dig. §§ 57-60; Dec. Dig. § 15.*]

5. Prohibition (§ 17*)—Writ of—Procedure.

When a proceeding to be prohibited by writ of prohibition shows on the face of its record want of jurisdiction, no demand upon the court to cease the proceeding is necessary before asking the writ.

[Ed. Note.—For other cases, see Prohibition, Cent. Dig. § 66; Dec. Dig. § 17.*] Application by the City of St. Marys and others for a writ of prohibition to Homer B. Woods, Judge, and others. Writ granted.

Clyde B. Johnson and 6. D. Smith, for petitioners.

William Beard, Ross Wells, H. P. Locke, and F. H. McGregor, for respondents.

BRANNON, J. By chapter 147, Acts 1901, the Legislature enacted a charter for the city of St. Marys. In April, 1909, R. W. Douglass and four other freeholders of that city presented to the circuit court of Pleasants county their petition asking that court to alter, change, and amend the said charter in certain respects set forth in the petition, which petition the court received, and directed publication of the object of the petition as directed by section 1896, Code 1906. In May, 1909, the city of St. Marys, John Schanwecker, and four others, presented to this court a petition praying for a writ of prohibition against the circuit court of Pleasants county and the persons prosecuting said petition for amendment of the city charter, to prohibit the further entertainment and prosecution of said petition.

The most material question of the case is: Has a circuit court any power or jurisdiction to amend and alter the charter of a city or town, whose charter comes by special act of the Legislature? If not, if it cannot act upon the subject, it is without jurisdiction. If we find that under no circumstances can a circuit court amend such a charter under the power of amendment given by section 1895, Code 1906, then we would consider it a total want of jurisdiction, and for that reason prohibition would lie; but if we say that because that statute confers a jurisdiction to begin to consider and hear and determine, and thus it has jurisdiction to act, but still cannot properly alter a special charter, then its exercise would be an abuse or usurpation of power. In either case prohibition would lie under section 3599, Code 1906, giving the writ where there is total want of jurisdiction of the subject-matter, or where there is jurisdiction, but the court exceeds its legitimate powers. Powhatan Coal Co. v. Ritz, 60 W. Va. 395, 5 S. E. 257, 9 L. R. A. (N. S.) 1225; N. & W. Co. v. Pinnacle Coal Co., 44 W. Va. 574, 30 S. E. 196, 41 L. R. A. 414. Const. art. 6, § 39 (Code 1906, p. Ixii), says the "Legislature shall not pass local or special laws in any of the following enumerated cases: * * * Incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population of less than two thousand. * * * The Legislature shall provide by general laws for the foregoing and all other cases for which provision can be so made." The Constitution thus divides municipalities into two classes, those of 2, 000 and those of less population. It prohibits the Legislature from incorporating or amending the charters of towns of less than 2, 000; but, as to those of that population, it reserves such power to the Legislature. Does the Constitution mean that the Legislature cannot authorize a court to grant or change a charter of a town over 2, 000 in population? It would seem so, because it concedes power to the Legislature to act in such case, and not that only, it gives the Legislature power to provide means for chartering or amending the charter of towns of less than 2, 000 population, but grants it no power to make regulation in any other case; in other words, it limits' the power to provide other process than special act to towns of less than 2, 000 people. The incorporation of towns is a legislative function. The whole power is in the Legislature, except as the Constitution limits. Our Constitution reserves to the Legislature a part of this power, and tells it to confer the other part on some other tribunal; but it can delegate or confer this function no further than so far as it is allowed to delegate, that is, as to towns of less than 2, 000 people. We must, therefore, construe the sections of chapter 47 of the Code giving circuit courts power to amend charters as intended to apply only to towns of less than 2, 000 population incorporated by courts, as otherwise those sections would be contrary to the Constitution. Our construction must, if possible, harmonize it with the Constitution.

But take those provisions for amendment of themselves, without reference to the Constitution. Do they allow a circuit court to alter a charter given by special act?

As stated in South Morgantown v. Morgan-town, 49 W. Va. 729, 40 S. E. 15, the incorporation of towns is purely a legislative function, unless the Constitution limits or otherwise provides. The Legislature makes or alters or abolishes their charters, unless the Constitution otherwise says. Section 47a, c. 47, Code 1906, says that, when it shall be desirable to amend the charter of "any" city, town, or village of less than 2, 000, application may be made to a circuit court. The word "any" is comprehensive; but reading chapter 47 we cannot see that it intends such a power as to special charters, when we reflect on certain considerations. A town is incorporated by a special act giving it powers deemed proper by the Legislature. We can hardly think that it was the desire of the Legislature in conferring powers of amendment upon courts to give them right to take away important powers or enlarge them, after the Legislature had once passed on those matters. To give courts such power would give them right to vitally change the legislative will, to repeal in material respects the act of the Legislature. The municipal right as a corporation is vested in it for the benefit of its people, and not to be derogated from by any power other than that conferring it. We cannot think that the town or its people can otherwise lose their rights.

We can apply this amending power to other towns than those incorporated by special act. This chapter allows courts to incorporate towns of less population than 2, 000, and to those we can apply this amendatory power. The very fact that the Code section allowing amendment by courts limits the power to towns of less population than 2, 000 imports that it has reference only to such towns incorporated by courts, because we cannot say that the Legislature foresaw that some towns of special charter would decrease in population below 2, 000, as in this instance, and thus fall under the amending section. Only towns of less population could either be incorporated or their charters be amended by courts, and those only were in the mind of the Legislature when making the amendatory section. It was intended only for small municipalities chartered by courts. Important rights vested by legislative acts could thus be abrogated, which the lawmaking body thought requisite. For instance, take the city of St. Marys. Section 28 of its charter act of 1901 gave it absolute right to grant or refuse liquor license. Section 29 authorized an excise board of three to pass on the grant or refusal of license. An act in 1907 (chapter 9) repealed that section 29, and thus dispensed with the excise board, but left section 28, giving the town power to grant or refuse license, still standing. The applicants for amendment of the charter say that it is doubtful whether the town has this power after the repeal of section 29 creating an excise board, and their amendment proposes to take from the city this power, except with the assent of the county court. Without deciding whether the city has yet this discretion, say for argument that it has. The city may consider it important to grant license to raise revenue, a very important matter; but this power is to be taken from the city, though the Legislature deemed it a necessary and salutary power, when it passed the charter. Never did the Legislature intend this.

Counsel for the plaintiffs suggest, not without force, as showing that the amendment provisions in chapter 47 apply only to towns incorporated by courts, that chapter 54, Acts 1907, amending and re-enacting section 2, c. 47,...