Henrico County v. City Of Richmond

• Decision Date: 09 June 1941
• Citation: 15 S.E.2d 309
• Court: Virginia Supreme Court
• Parties: HENRICO COUNTY et al. v. CITY OF RICHMOND.

15 S.E.2d 309

HENRICO COUNTY et al.

v.CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

June 9, 1941.

Rehearing Denied Sept. 17, 1941.

[COPYRIGHT MATERIAL OMITTED]

[COPYRIGHT MATERIAL OMITTED]

Appeal from Circuit Court, Henrico County; Julien Gunn, Frederick W. Coleman, and A. D. Barksdale, Judges.

Proceedings by the City of Richmond for the annexation of territory, wherein the County of Henrico and others appeared specially and filed written motions to dismiss the proceedings for lack of jurisdiction. From a judgment for the City of Richmond, the County of Henrico and others appeal, and the City of Richmond cross-assigns error.

Judgment modified and as modified affirmed.

Argued before CAMPBELL, C. J., and HOLT, HUDGINS, GREGORY, BROWNING, EGGLESTON, and SPRATLEY, JJ.

Hunton, Williams, Anderson, Gay & Moore and H. M. Ratcliffe, all of Richmond, for appellant County of Henrico.

McGuire, Riely, Eggleston & Bocock, William H. King, Collins Denny, Jr.,

Fielding L. Williams, Lewis C. Williams, Hunsdon Cary, T. Justin Moore, and Robert G. Cabell, all of Richmond, for appellants Windsor Farms and others.

Horace H. Edwards, J. E. Drinard, and John P. McGuire, Jr., all of Richmond, for appellee.

EGGLESTON, Justice.

The subject matter of this controversy is the extension of the corporate limits of the city of Richmond by the annexation of certain territory from Henrico county. The prerequisite annexation ordinance (Code, § 2956, as amended by Acts 1924, ch. 441, p. 663), enacted by the city council, embraced seven separate parcels of land aggregating 8.29 square miles and designated on the maps used in the trial below as follows:

Parcel "E, " comprising the suburban subdivisions known as Windsor Farms, Paxton, Hill Crest, and others, lying west of the city, and bounded roughly on the south by the James River, on the west by the Three Chopt road, and on the north by Patterson avenue (which parcel was enlarged by the order to include the grounds of the University of Richmond and a narrow connecting link); Parcel "D" on the north of the city, comprising the territory between the city limits and Bryan Park and Westbrook avenues (enlarged by the order to include the grounds of the city tuberculosis hospital, known as Pine Camp, and certain colored settlements); Parcel "C, " a small area to the northeast of the city, bounded on the east. and south by Ladies' Mile road, on the west by Moss Side avenue, and on the north and northeast by Cannon's road; Parcels "B, " "A, " "H" and "G, " which are irregular tracts situated on the east of the present city boundary north of the James River; and Parcel "F, " being the bed of the James River from the eastern city limits to the recently constructed city Deep Water Terminal.

After the prescribed notice had been given to the proper officials of the county and had been published as required by Code, § 2957 (as amended by Acts 1924, ch. 441, p. 663), the Hon. Frederick W. Coleman, Judge of the Fifteenth Judicial Circuit, and Hon. A. D. Barksdale, Judge of the Sixth Judicial Circuit, were designated to sit with Hon. Julien Gunn, Judge of the Circuit Court of Henrico county, and to hear and determine the case.

The county of Henrico and certain interveners appeared specially and filed written motions to dismiss the proceedings for lack of jurisdiction. These were overruled, the case was heard on the merits and resulted in a judgment favorable to the city, which is here for review.

We shall first deal with the assignments of error which challenge the rulings of the lower court on the several motions to dismiss the proceedings.

The record discloses that in February, 1938, both branches of the city council adopted two separate ordinances, the one preliminary to the annexation of territory in Henrico county, and the other preliminary to the annexation of territory in Chesterfield county. The two ordinances passed the respective branches of the council at the same meetings.

The contention of the county is that the adoption of these two ordinances by the council at the same time shows a single plan of the city to annex territory in both counties, that the "single, comprehensive and integrate plan for the annexation of territory" in both counties should have been incorporated in a single ordinance and should have been followed by the institution of a single annexation proceeding in the Circuit Court of Henrico county, wherein the greater part of such territory lies.

So much of Code, § 2956 (as amended by Acts 1924, ch. 441, p. 663), as is here material, provides as follows:

"Whenever it is deemed desirable by any city or town to annex any territory to such city or town, its council shall declare by an ordinance, which shall be passed by a recorded affirmative vote of a majority of all the members elected to the council, or to each branch thereof, when there are two, that it desires to annex certain territory and shall accurately describe therein the metes and bounds of the territory proposed to be acquired, and set forth the necessity for or expediency of annexation, and the terms and conditions upon which it desires to annex such territory, as well as the provisions which are made for its future management and improvement. * * *"

So much of Code, § 2957 (as amended by the same act), as is here material, provides as follows:

"In any annexation proceeding instituted the city or town shall give notice to the Commonwealth's attorney and the board of supervisors of the county or counties 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 the greater part of such territory lies, or the judges who shall hear the case, to make an order authorizing and declaring the annexation provided for in the said ordinance, with which notice shall be served a certified copy of such ordinance. * * *"

We think the majority opinion of the lower court correctly held that under the above statutory provisions the city had the right or the option to proceed for the annexation of territory in both counties at the same time and in a single proceeding, but that it was not compelled to do so.

There is nothing in the language of the statutes which we have quoted to suggest that where a city desires to annex territory lying in two counties it must proceed jointly against such counties. Nor is any reason assigned why this procedure should be followed. Indeed, the conditions with respect to the acquisition of territory in the two counties may be such as to render it impracticable to proceed against them jointly.

It is true that Code, § 2956, supra, provides for the enactment of "an ordinance" as the first step in the annexation proceedings, but there is no suggestion in the statute that a separate "ordinance" may not be adopted with respect to the acquisition of territory in each county.

Again, Code, § 2957, supra, provides for notices to certain officials of the county whose territory is sought to be annexed. Here such notices are required where an annexation proceeding has been "instituted"--not one which has been planned or proposed. In the case at bar, while the city may have originally planned or proposed to annex certain territory in Chesterfield county, no proceeding has been "instituted" for that purpose. The ordinance with respect to the annexation of a part of that county may be repealed or disregarded and no proceeding may ever be "instituted" thereon.

The county next contends that the proceeding should be dismissed because, it says, the statutory procedure was not followed in that the ordinances adopted by the city council failed to contain an accurate metes and bounds description of the terri-tory proposed to be annexed, as required by Code, § 2956, as amended.

The council of the city of Richmond consists of two branches, the common council and the board of aldermen. The annexation ordinances had been referred to a special joint committee from both branches. The committee recommended to the council the adoption of Ordinance "A" which provided for the annexation of certain areas in Henrico county, designated in the report as Parcels "A" through "F, " both inclusive, which were described by metes and bounds.

When this report reached the floor of the common council, the journal of that body discloses that:

"Mr. Griggs moved that said Ordinance 'A' be amended so as to include the parcels east of Seventh Street, as shown on map accompanying the report of the City Comptroller of January 20, 1937, as parcels 19, 20, 21 and 22, parcel 23 and parcel 24, inserting in the said ordinance 'A' proper metes and bounds descriptions to be prepared by the Director of Public Works, and having the lines of said parcels endorsed on the map attached to the ordinance to conform, said parcels to be shown as Parcel 'A' (revised) and parcels 'G' and 'H.' Adopted.

"The said ordinance 'A', as amended, was placed on its passage and adopted--by the vote of 19 to 1."

The effect of the Griggs' amendment was to enlarge Parcel "A, " as proposed by the special joint committee, and to add Parcels "G" and "H" to the territory proposed to be annexed.

Over the objection of the city, the county offered testimony to show that the metes and bounds description of the territory proposed to be annexed was not physically incorporated into the ordinance until the following day, and after the common council had adjourned; that the ordinance, as amended, was subsequently passed by the board of aldermen but was not returned to the common council for approval after the addition of the metes and bounds description.

Consequently, the county contends that the common council has never adopted the amended ordinance containing the metes and bounds description of the property proposed to be annexed, required by Code, § 2956, as amended.

We agree with the holding of the majority of the lower court that the recital in the journal of the council, that the ordinance "as...