Hamilton. v. Mayor, (No. 8245)

• Citation: 116 W.Va. 521
• Decision Date: 22 October 1935
• Docket Number: (No. 8245)
• Court: Supreme Court of West Virginia
• Parties: J. H. Hamilton et al. v. Mayor and Council of theCity of Charleston

116 W.Va. 521

J. H. Hamilton et al.

v.Mayor and Council of the

City of Charleston

(No. 8245)

Supreme Court of Appeals of West Virginia.

Submitted October 2, 1935.

Decided October 22, 1935.

1. Municipal Corporations

The maintenance of fire departments being a matter of general public interest, and not merely of local concern, the legislature has power to require all cities and incorporated towns which have, or may hereafter have, a fire department, supported in whole or in part at public expense, to establish and maintain a firemen's pension or relief fund, if practicable within constitutional limitations.

2. Municipal Corporations

The legislature may not invest the boards of trustees of the firemen's pension or relief funds, in cities of more than twenty thousand population, with authority to fix and determine the amount that the councils or other governing bodies of said cities shall levy in support of said funds.

Original mandamus proceeding by J. H. Hamilton and others against the Mayor and Council of the City of Charleston.

Writ denied.

Barnhart & Trotter, for relators.

Philip PL. Hill and P. G. Meador, for respondents.

Woods, Judge:

J. II. Hamilton, R. L. Gay and W. T. Stone, as taxpayers, voters, residents and members of the fire department of the city of Charleston, seek, by mandamus, to require the mayor and the council of said city to provide, by proper ordinance, for the establishment and maintenance of a firemen's pension fund, in accordance with the provisions of Code 1931, chapter 8, article 6, as amended by chapter 69, Acts 1935, Regular Session of the Legislature.

The original Act (chapter 45, Acts 1917) authorized any municipality whose fire department was supported in whole or in part at public expense, upon declaration, by ordinance, of the necessity thereof, to establish a firemen's pension fund, and, in aid thereof, among other things, conferred upon said municipality the right to lay a levy, and to create a board of trustees to administer the fund. The establishment of such fund was discretionary with the council or other governing body. Section 10 of chapter 69 of the Acts of 1935, however, provided, among other things, that "the council or other governing body, shall, by ordinance provide for the establishment and maintenance of a firemen's pension or relief fund, '' etc.; section 13, that the board shall consist of the mayor or other chief executive officer of the municipal corporation and four members of, and chosen by, the fire department; and section 14, that '' The council * * * shall levy annually * * * a tax not exceeding one cent on each one hundred dollars valuation * * *. The amount of tax to be levied if less than one cent provided for above may be fixed and determined by said board of trustees as aforesaid, and certified to the council or other governing body of such municipality. Provided further, That in any city or municipality of twenty thousand population or less the laying of the levy herein provided for shall be within the discretion of the common council or other body of like power and duties in such city or municipality."

In support of their petition, the relators take the position that the Legislature, by virtue of its almost unlimited power in the legislative field, has a right to direct the municipalities coming within the purview of Code 193'L, 8-6, as amended, to provide for their firemen and lay a levy within the limits and in the manner therein provided. The right to the writ is challenged by the respondents on two grounds, namely, (1) that the establishment of a firemen's pension fund is a "local matter," and therefore that the Legislature may not, under section 9, Article 10 of our Constitution, require municipal corporations affected thereby to lay an annual levy to maintain such fund; and (2) that the determination of the amount of levy may not be placed in the hands of the board of trustees provided for in the Act, because it is a non-official body, four of the members of which are to be chosen from and by the members of the local fire department, and also because of the individual interest which four of the members to be chosen will have in the fund.

"The rule in the majority of the...