Mowry v. City of Virginia Beach

• Decision Date: 18 June 1956
• Docket Number: No. 4549,4549
• Citation: 93 S.E.2d 323,198 Va. 205
• Parties: CHARLES A. MOWRY, FIELDING F. JETER AND J. W. MUSICK, ETC. v. CITY OF VIRGINIA BEACH, ETC., ET AL. Record
• Court: Virginia Supreme Court

Page 323

93 S.E.2d 323

198 Va. 205

CHARLES A. MOWRY, FIELDING F. JETER AND J. W. MUSICK, ETC. v. CITY OF VIRGINIA BEACH, ETC., ET AL.

Record No. 4549.

Supreme Court of Appeals of Virginia

June 18, 1956.

Eastwood D. Herbert (Herbert & Bohannon, on brief), for the appellants.

William L. Parker (P. W. Ackiss, Jr., on brief), for the appellees.

JUDGE: SPRATLEY

SPRATLEY, J., delivered the opinion of the court.

This is a proceeding instituted on August 24, 1954, under Code, § 15-152.4 * by Charles A. Mowry, Fielding F. Jeter and J. W. Musick on behalf of themselves and others similarly situated, constituting more than 51% of the qualified voters in an area of Princess Anne County adjacent to the City of Virginia Beach, known as North Virginia Beach, seeking its annexation to the City of Virginia Beach. The petition set forth the metes, bounds and size of the territory sought to be annexed, detailed description and information concerning same, the reasons why such annexation was deemed desirable and expedient, and the terms and conditions upon which the annexation was sought. Code, § 15-152.3. It was prayed that the City of Virginia Beach be required to answer the petition.

The procedure appears to have been regular: a copy of the petition was served upon the City Council of the City of Virginia Beach, and upon the Commonwealth Attorney, and Board of Supervisors of Princess Anne County, and an attested copy duly published. Code, § 15-152.5.

In response to a condition of the petition that, precedent to any action thereon, the City of Virginia Beach adopt an ordinance 'declaring the will of the City to accept said territory upon the same terms and conditions as were set forth in a certain ordinance adopted December 20, 1951, and incorporated into the record of the recent case of City of Virginia Beach v. County of Princess Anne,' the City filed its answer on September 29, 1954, setting out that it had, on September 27, 1954, adopted an ordinance, which recited that it 'desires' to annex the territory involved upon the terms and conditions specified in the ordinance of December 20, 1951.

The special court duly constituted to hear and determine this proceeding convened on December 24, 1954. On that day the County of Princess Anne was, by motion of its counsel, made a party defendant and given leave to file its special plea or pleas. Thereupon, the County filed its special plea which set out that the proceeding was barred (1) under Code, § 15-152.25, since it was instituted within five years after a final decree had been entered on August 31, 1953, after a hearing on the merits, in a proceeding brought by the City of Virginia Beach against Princess Anne County to annex territory which included that embraced in the present proceeding, and (2) under the doctrine of res judicata, because the issues involved had been adjudicated in the former annexation proceedings concluded in 1953.

Filed as exhibits with the special plea are the final order of the Circuit Court of Princess Anne County, entered on September 12, 1953, in the case of Virginia Beach, an incorporated Town v. County of Princess Anne, denying the petition for annexation of the area therein involved, and the opinion of the court upon which that order was based.

On August 26, 1955, the court rejected the motion of petitioners to strike the special plea, entered an order sustaining the plea, and dismissed the petition. Petitioners duly excepted and we granted appeal.

The order of dismissal does not show the ground upon which the dismissal was based and no opinion of the court was filed. We must, therefore, determine whether either of the grounds of the special plea was sufficient to justify the dismissal of the case.

We shall first determine whether this proceeding was barred because it was instituted within five years next succeeding a final order in the annexation proceeding above mentioned.

A short review of the history of our present annexation statutes will be informative. On October 13, 1951, after an exhaustive study and consideration of the history, development and effect of the annexation of territory by municipalities, the Virginia 'Commission to Study Urban Growth' made a written report to the Governor and the General Assembly of Virginia. (House Document No. 13, 1951) After discussing annexation problems, the Commission made a number of recommendations, accompanied by a detailed statement of the reasons therefor. It then listed, among others, the following pertinent recommendations:

(1) That, if in any proceeding instituted by a city, the city deems the terms and conditions imposed by the court for annexation unduly burdensome, such city may decline to accept the annexation decree, in which event it must reimburse the county for costs incurred by it in defending the suit. (Italics added.)

(2) That, 'in view of the fact that annexation proceedings may be now instituted by citizens of the affected area, * * * the right to decline annexation should be limited to those cases in which the municipality itself instigates the proceedings.' (Italics added.)

(3) That, 'Under the present law, if a city or town is unsuccessful in a suit for certain territory, it cannot again seek any portion of that territory for a period of three years. (Virginia Code, 1950, § 15-140, now repealed) It can, however, try to annex other territory in the county whether or not it has prevailed in a similar case within this time. Thus a municipality could constantly nibble at the county and by seeking small parcels of land force the county into a continual process of defending annexation suits.' (Italics added.)

(4) That, in view of the effect upon the future of a city or town and the result to the county from an annexation proceeding, 'no city or town, having once brought annexation proceedings against a county, shall again be permitted to seek territory for a five-year period.' (Italics added.)

After the filing of the above report, the General Assembly in 1952, (Acts 1952, Chapter 328, pages 627, et seq.) repealed the annexation statutes then in effect, Code §§ 15-125 to 15-152.1, and enacted in their place the provisions now in effect, Chapter 8, Article 1, §§ 15-152.2 to 15-152.28, inclusive.

Code § 15-152.3 provides how a city or town may proceed for the annexation of territory. The next section 15-152.4 provides, as we have seen, how 51% of the qualified voters of any territory adjacent to any city or town, or the governing body of the county in which such territory is located, or the town comprising such territory, may proceed for the annexation of such territory to a city or town. Code § 15-152.5 provides how, in any annexation proceedings instituted by a city or town, notice shall be given, and the procedure thereafter. Code § 15-152.14 provides that a city or town may decline to accept annexation on the terms and conditions prescribed by the court, and that in such case it shall reimburse the county for costs incurred in defending the suit.

The pertinent portion of § 15-152.25, the particular section here involved, provides that:

'No city or town, having instituted proceedings to annex territory of a county, shall again seek to annex territory of such county within the five years next succeeding the entry of the final order in any annexation proceedings under this article or previous acts except by mutual agreement of the governing bodies affected, in which case the city or town moving to dismiss the proceedings before a hearing on its merits may file a new petition five years after the filing of the petition in the prior suit.'

It is clear from a reading of the report of the 'Commission to Study Urban Growth,' and the newly enacted statutes, that proceedings for annexation by cities and towns and proceedings by citizens of an area desiring to be annexed to a city were considered and treated as separate and distinct actions, both as to method of instituting the proceeding and as to duties and obligations of the respective litigants. Annexation proceedings may be instituted by either of the two separate and distinct classes of petitioners. Once they have been instituted and the preliminary steps taken, the procedure thereafter by either class of petitioners is uniform, (§ 15-152.5) except as otherwise provided, (§ 15-152.4); but the respective rights, duties and obligations of the parties remain as set out in the annexation statutes read as a whole.

The language of § 15-152.25 is free and clear of ambiguity or obscurity. The limitation therein is expressly confined to cities and towns. There is no language implying that it refers to or includes a proceeding instituted by citizens. The tenor of all of the sections of Article 1, Chapter 8, relating to annexation is in conformity therewith. We cannot enlarge upon the statute, nor write into it words not included by the legislature.

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