In re Proposal to Incorporate Town of Chesapeake, Kanawha County

• Decision Date: 14 October 1947
• Docket Number: 9964.
• Parties: In re PROPOSAL TO INCORPORATE TOWN OF CHESAPEAKE, KANAWHA COUNTY.
• Court: West Virginia Supreme Court

45 S.E.2d 113

130 W.Va. 527

In re PROPOSAL TO INCORPORATE TOWN OF CHESAPEAKE, KANAWHA COUNTY.

No. 9964.

Supreme Court of Appeals of West Virginia.

October 14, 1947

Rehearing Denied Dec. 15, 1947.

Appeal from Circuit Court, Kanawha County.

Syllabus by the Court.

1. Neither Section 39(a) of Article VI of the Constitution of this State, nor Chapter 56 of the Acts of the Legislature 1937, in any way repeals or impairs the provisions of Article 2 of Chapter 8 of the Code, relating to the incorporation of towns and villages containing a population of less than two thousand.

2. The decisions of this Court in the cases of In re Town of Union Mines, 39 W.Va. 179, 19 S.E. 398; Elder v Incorporators of Central City, 40 W.Va. 222, 21 S.E 738; Bloxton v. McWhorter, Judge, 46 W.Va. 32, 32 S.E. 1004; State v. Harden, 62 W.Va. 313, 58 S.E 715, 60 S.E. 394; and Morris v. Taylor, 70 W.Va 618, 74 S.E. 872; upholding the jurisdiction of circuit courts to hear applications to incorporate towns and villages containing a population of less than two thousand, are reaffirmed on grounds of public policy.

W. Hayes Pettry, of Charleston, for petitioners-appellants.

Fitzpatrick, Strickling & Marshall, of Huntington, and Kay, Casto & Amos, of Charleston, for protestants-appellees.

Spilman, Thomas & Battle, Howard R. Klostermeyer, McCabe & McCabe, and Charles P. McCabe, Sr., all of Charleston, amici curiae.

FOX, President.

On July 20, 1946, a group of citizens residing in the community of Chesapeake in Kanawha County, West Virginia, petitioned the Circuit Court of Kanawha County to issue a certificate of incorporation to the Town of Chesapeake as a municipal corporation, under the provisions of Article 2 of Chapter 8 of the Code, embracing territory specifically described in said petition. From said petition, it appears that the population of the territory proposed to be incorporated was less than two thousand, and, so far as we have been able to observe, the requirements necessary to justify the granting of such charter by the circuit court, have been fully complied with, and such compliance duly alleged in the petition. Upon the filing of the petition, The Chesapeake and Ohio Railway Company, the owner of a substantial amount of property within the area to be incorporated, appeared and filed its demurrer to the said petition, thereby admitting for the purposes of said demurrer, the several allegations of said petition. The points of demurrer were three in number:

'(1) Sec. 39(a) of Article 6 of the Constitution of West Virginia provides that the Legislature shall provide by general laws for the incorporation and government of cities, towns and villages and shall classify such municipal corporations upon the basis of population into not less than two nor more than five classes. That pursuant to such constitutional mandate the Legislature of West Virginia enacted enabling legislation which is now Chapter 8(a) of the Code of West Virginia. This legislation classifies municipalities into three classifications but did not include communities with population of less than two thousand. Since the Legislature failed to make provision for the incorporation of communities of less than two thousand such incorporations cannot now be made.

'(2) Article 5 of the Constitution of the State of West Virginia provides that the legislative, executive and judicial departments of the State shall be separate and distinct so that neither shall exercise the powers properly belonging to either of the others. The petition filed herein, which purports to be filed under the provisions of Article 2 of Chapter 8 of the Code of West Virginia, would require this Court to act in a legislative capacity. Therefore any action of this Court in purporting to incorporate the community of Chesapeake would be violative of Article 5 of the Constitution.

'(3) Article 2 of Chapter 8 of the Code of West Virginia is unconstitutional as violative of Article 5 of the Constitution of West Virginia.' It appears from the record that a number of citizens within the area of the proposed municipality joined in said demurrer. The court sustained the demurrer, and, on April 23, 1947, dismissed the petition. On June 16, 1947, we granted this writ of error.

A memorandum was filed by the trial court, and made a part of the record, from which it appears that said petition was dismissed on the general ground that Article V of the Constitution, properly interpreted, makes unconstitutional and void Section 8 of Article 2 of Chapter 8 of the Code, in that it requires of a circuit court the performance of a purely legislative function. Other questions were discussed therein, but from said memorandum, and the argument of counsel, it is quite clear that the decision of this case must depend upon the question of whether the delegation by the Legislature to circuit courts of the power to incorporate towns, having a population of less than two thousand, is a violation of the constitutional provision aforesaid.

This presents an interesting question and was first raised in this Court in the case of In re Town of Union Mines, 39 W.Va. 179, 19 S.E. 398, wherein it was held that 'Chapter 47 of the Code, in relation to the incorporation of cities, towns, and villages, in so far as it confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the legislative department of the state government, is constitutional and valid.' In the body of the opinion, prepared by Judge Dent, it is said: 'In discharging these functions, the circuit court does not act under the judicial branch of the government, and is not subject to its supervision, except by mandamus or prohibition in a proper case, but acts as a part of the legislative branch of government, under the express authority of the constitution, and is subject to its supervision and control, only, however, by impeachment or amendment or repeal of the law.' It then goes on to say: 'Hence its action in discharging these legislative judicial functions cannot be reviewed by this court by a writ of error or other ordinary appellate writ, notwithstanding their judicial character.' The Union Mines case was followed by the case of Elder v. Incorporators of Central City, 40 W.Va. 222, 21 S.E. 738, in which it was held: 'Chapter 47 of the Code, in relation to the incorporation of cities, towns, and villages, in so far as it confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the power of the legislative department of the state government, is constitutional and valid.' And in the body of the opinion it is said: 'This statute itself erects the local it body of citizens into a municipal corporation upon their bringing themselves within its provisions and upon complying with its terms, all of which are specified and fixed therein * * *; and whether the facts thus required exist in the particular case the circuit court, after due notice to all concerned and an opportunity to be heard against the application, ascertains and determines. This is, at least, an administrative or quasi judicial function, which the circuit court may be authorized to perform.' In that case the writ of error was dismissed as improvidently awarded, by a majority of the Court, on the ground that this Court had no jurisdiction in a matter merely quasi-judicial. The case of Bloxton v. McWhorter, Judge, 46 W.Va. 32, 32 S.E. 1004, was in prohibition, in which it was sought to prohibit the circuit court from issuing a certificate of incorporation. It was there held: 'In deciding upon the sufficiency of such proofs, the court was exercising the legitimate powers conferred upon it by the statute; and having jurisdiction of the subject-matter, prohibition will not lie.' It was further held that 'And in entering the order directing the clerk of said court to issue a certificate of the incorporation of such city, town, or village, after deciding upon the sufficiency of said proofs, the court was performing a merely ministerial duty, as it had no discretion after being satisfied with the proofs, and prohibition will not lie.'

At this point it seems proper to discuss the origin of the statute on which the decisions above referred to were based. Chapter 47 of the Code of 1868 covers the incorporation of towns and villages, and, after making certain preliminary requirements, Section 9 provided: 'Upon the filing of such certificate and upon satisfactory proof that all the provisions of the foregoing sections of this chapter have been complied with, the circuit court shall, by an order entered of record, direct the clerk of said court to issue a certificate of the incorporation of such town or village in form or in substance as follows: * * *.' This was carried into Section 9, Chapter 92, Acts of the Legislature 1882, and remained so until by Section 9 of Chapter 41, Acts of the Legislature 1901, it was changed and made to read as follows: 'Upon the filing of such certificate and upon satisfactory proof that all the provisions of the foregoing sections of this chapter have been complied with, the circuit court may, at its discretion, by an order entered of record, direct the clerk of the said court to issue a certificate of the incorporation of such city, town or village, in form or in substance as follows: * * *.'

It will be noted that one of the arguments used in support of the decisions in the cases above referred to, was the fact that the only function of the circuit court was to ascertain whether the necessary preliminary requirements to a certificate of incorporation had been met, and that the circuit court had no discretion, and was performing only an administrative duty in support of the legislative...