In Re Town Of Union Mines.

• Decision Date: 28 March 1894
• Citation: 39 W.Va. 179,19 S.E. 398
• Court: West Virginia Supreme Court
• Parties: In re TOWN OF UNION MINES.

19 S.E. 398

39 W.Va. 179

In re TOWN OF UNION MINES.

Supreme Court of Appeals of West Virginia.

March 28, 1894.

Constitutional Law—Judicial Powers—Municipal Corporations—Review on Appeal.

1. 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.

2. The circuit court, in the discharge of such functions, acts as a subordinate branch or tribunal of the legislative, and not of the judicial, department, and is not subject to the appellate jurisdiction of the supreme court of appeals of this state.

(Syllabus by the Court.)

Error to circuit court, Kanawha county.

Prom an order granting a certificate for the incorporation of the town of Union Mines, the Chesapeake & Ohio Railway Company and others bring error. Dismissed.

Brown, Jackson & Knight and J. E. Chilton, for plaintiffs in error.

J. W. Kennedy, A. C. Blair, and C. B. Smith, for defendant in error.

DENT, J. William Rigg and others applied to the circuit court of Kanawha county under chapter 47 of the Code, and obtained a charter for the town of Union Mines, after having shown by proof satisfactory to said court that the provisions of said chapter had been fully complied with. The petitioners here appeared in said court, and asked to contest the application, but the court refused to allow them to do so, and yet at the same time signed a bill of exceptions, setting forth the proceeding of the court on said application and the appearance and contest of petitioners; and thereupon they applied for and obtained a writ of error to this court, and now here assign the following errors, to wit: "(1) That it did not appear that a majority of the qualified voters residing in the boundaries of the proposed town voted for incorporation; (2) because of the illegal action of the commissioners who held the election in publicly announcing, at the opening of the polls, in utter violation of the statute, that no person would be allowed to vote who had not resided for six months within the territory; (3) that the law is unconstitutional, In that and so far as it confers on the circuit court legislative powers." The parties made defendant in this proceeding, on their part, Insist that this court has no jurisdiction to entertain a writ of error to review the proceedings (under said chapter 47) of the circuit court, as the powers involved are legislative in their nature, are expressly forbidden to this court by the constitution, and an interference therewith would be an unauthorized assumption of power, amounting to usurpation.

Article 5 of the constitution is in these words: "(1) The legislative, executive and judicial departments shall be separate and distinct, so that neither shall exercise the powers properly belonging to either of the others; nor shall any person exercise the powers of more than one of them at the same time, except that justices of the peace shall be eligible to the legislature." Ord. Const. Law, 344, says: "Under a tripartite division of the powers of government, it becomes the duty of the legislature to enact laws, of the judiciary to construe them, and of the executive to enforce them." Yet, while this is the basic principle underlying the separation of the government into its departments, it has been found to be wholly unpractical to make such separation perfect. On the contrary, it has been found necessary, for its own existence and the proper discharge of its functions, for the legislature to exercise both judicial and executive or administrative functions, such as are entirely distinct from a legislative or lawmaking function, strictly speaking. In the enaction of every law, the legislature is called upon to exercise judicial functions, and especially is this true in granting a charter to a city, town, or village, for there must be an inquiry, judicial in its nature, as to whether the facts justify the enaction of the law. But the constitution, to relieve the legislature from being hampered with this inquiry in every case, requires the legislatureto enact a general law for the incorporation of all cities, towns, and villages of less than 2, 000 inhabitants, and thus confer or impose the judicial part of its functions, to wit, the investigation of the facts, upon some person or tribunal, other than itself, over whom the constitution invests it with such control or authority. The constitution does not authorize, but forbids, the imposition of such a duty on ...