Mayor. Etc v. City Of Mokgantown

• Decision Date: 07 September 1901
• Citation: 49 W.Va. 729,40 S.E. 15
• Parties: MAYOR. ETC., OF TOWN OF SOUTH MORGANTOWN v. CITY OF MOKGANTOWN et al.
• Court: West Virginia Supreme Court

40 S.E. 15

49 W.Va. 729

MAYOR. ETC., OF TOWN OF SOUTH MORGANTOWN

v.CITY OF MOKGANTOWN et al.

Supreme Court of Appeals of West Virginia.

Sept. 7, 1901.

CONSTITUTIONAL LAW—SPECIAL ACT—REPEAL OF CITY CHARTER—INCORPORATION OF CITY.

1. The constitution, in article 6, § 39, does not prohibit the legislature from passing a special law repealing the charter of a municipal corporation, or uniting the territory of several municipal corporations in one municipal corporation, and thus repealing their former charters.

2. Chapter 144, Acts 1901, incorporating the city of Morgantown, is not in violation of section 39, art. 6, of the constitution.

3. Courts will not hold an act of the legislature to be contrary to the constitution without great caution, and unless it be manifestly and beyond doubt unconstitutional.

(Syllabus by the Court.)

Application by the mayor and councilmen of South Morgantown for a writ of mandamus against the city of Morgantown and others. Writ denied, and rule for writ of mandamus awarded by judgment of the supreme court. Rule discharged.

R. E. L. Allen, for petitioners.

Cox & Baker, for respondents.

BRANNON, P. The towns of Morgantown, South Morgantown, Seneca, and Green-mont, covering adjoining territory in Monongalia county, existed as separate municipal corporations under distinct charters until the act of the legislature passed 24th of January, 1901. That act erected and created a new municipal corporation, by designating certain territory, including all the territory covered by those four towns, and incorporating it under the name of "The City of Morgantown." It repealed the pre-existing charters of those towns by necessary implication. Dunfee v. Childs, 45 W. Va. 159, 30 S. E. 102; Cain's Case, 8 W. Va. 720; Port of Mobile v. Watson, 116 U. S. 289, 6 Sup. Ct. 398, 29 L. Ed. 620. The recorder of the former town of South Morgantown, under authority of that act, turned over to the officers of the new municipality the seal, records, and papers of the town; and later the mayor and council-men of South Morgantown, denying the validity of the act of 1901, and asserting the continued existence of South Morgantown as a municipal corporation, applied to Judge John W. Mason, of the circuit court of Monongalia county, for a writ of mandamus against the council of the new city of Morgantown to compel it to restore to the council of South Morgantown its corporate seal, records, and papers, which being refused by Judge Mason, a rule for a writ of mandamus was awarded by a judge of this court. The city of Morgantown appeared to this rule, and moved its discharge because improvidently awarded, on the claim that the petition for the writ itself discloses no ground for it, and also filed an answer.

The sole question necessary to be decided— the only one discussed by counsel in oral argument—is the validity of the act of 1901 incorporating the new city and blotting out the torn former towns. By common law the legislature has vast powers over municipal corporations. As stated in Hornbrook v. Town of Elmgrove, 40 W. Va. 543, 21 S. E. 851, 28 L. R. A. 416, it can make and unmake them at its discretion. Municipal charters are not contracts between the state and towns or cities, but are simply granted for governmental purposes, as mere instruments chosen by the legislative power to perform certain functions in the administration of the state government. No right vests under them in the towns or cities that is above subsequent legislation. Probasco v. Town of Moundsville, 11 W. Va. 501. The proposition stated in Roby v. Sheppard, 42 W. Va. 289, 26 S. E. 280, is not too broad; that is, that the power of the legislature to divide large municipalities, to annul their old charters, to reorganize them, to consolidate small ones, as well as to detach portions of territory from one and annex them to another, to meet the wishes of its residents or to promote the public interest, as understood by the legislature, is conceded to the legislature. Its power is thus full, in the absence of constitutional prohibition. This is well-settled law. Board of Education v. Board of Education, 30 W. Va. 425, 4 S. E. 640; 1 Beach, Pub. Corp. § 397; Bank v. Knoop, 16 How. 369, 14 L. Ed. 977; Meriwether v. Garrett, 102 U. S. 472, 26 L. Ed. 197; Kelley v. City of Pittsburg, 104 U. S. 78, 26 L. Ed. 659; Ohio v. City of Cincinnati, 76 Fed. 16, 22 C. C. A. 16, 37 L. R. A. 737; Girard v. City of Philadelphia, 7 Wall. 10, 19 L. Ed. 53. But it is contended that these principles do not apply, because section 39, art. 6. of the constitution, provides that the legislature shall pass no local or special law "incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population of less than two thousand, " and that the four towns each contain a population of less than 2, 000, and that the act is to be held as one amending their charters. Now, it is clear that, unless this language does...