Petition of City of Beckley to Annex, by Minor Boundary Adjustment, West Virginia Route 3 Right-of-Way Beginning at Present Corporate Limits

• Decision Date: 11 July 1995
• Docket Number: RIGHT-OF-WAY,No. 22596,22596
• Citation: 194 W.Va. 423,460 S.E.2d 669
• Court: West Virginia Supreme Court
• Parties: In re the Petition of the CITY OF BECKLEY TO ANNEX, BY MINOR BOUNDARY ADJUSTMENT, WEST VIRGINIA ROUTE 3BEGINNING AT the PRESENT CORPORATE LIMITS.

Page 669

460 S.E.2d 669

194 W.Va. 423

In re the Petition of the CITY OF BECKLEY TO ANNEX, BY MINOR

BOUNDARY ADJUSTMENT, WEST VIRGINIA ROUTE 3

RIGHT-OF-WAY BEGINNING AT the PRESENT

CORPORATE LIMITS.

No. 22596.

Supreme Court of Appeals of

West Virginia.

Submitted May 16, 1995.

Decided July 11, 1995.

Syllabus by the Court

1. "Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review." Syllabus Point 1, Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995).

2. "The powers exercised by a county commission with regard to municipal annexation are wholly statutory and it can exercise no other powers except those implicit in the specific grant." Syllabus Point 2, In the Matter of the City of Morgantown, 159 W.Va. 788, 226 S.E.2d 900 (1976).

3. The legislative authorizations to grant an annexation through a minor boundary adjustment to the county commission in W.Va.Code, 8-6-2 (1989) is a proper delegation of legislative authority.

4. The right to appeal to a circuit court a county commission's decision adopting or rejecting an annexation through a minor boundary adjustment under W.Va.Code, 8-6-5 (1989), is limited to the involved municipality and the freeholders in the area to be annexed.

5. " 'Prohibition lies only in case of the unlawful exercise of judicial functions. Acts of a mere ministerial, administrative or executive character do not fall within its province.' Point 4 Syllabus, Fleming v. [Kanawha County] Commissioners, 31 W.Va. 608 [8 S.E. 267 [1888]]." Syllabus Point 2, State ex rel. City of Huntington v. Lombardo, 149 W.Va. 671, 143 S.E.2d 535 (1965).

6. In general, a county commission enjoys a broad discretion in exercising its legislative powers in determining the geographic extent of a minor boundary adjustment sought by a municipality under W.Va.Code 8-6-5 (1989), so long as a portion of the area to be annexed is contiguous to the municipality.

Floyd M. Sayre, City Atty., Beckley, for City of Beckley.

Warren A. Thornhill, III, Beckley, for Bradley-Prosperity Volunteer Fire Dept.

W. Randolph McGraw, II, Beckley, for Mabscott Volunteer Fire Dept.

MILLER, Justice, Retired, sitting by temporary assignment:

The City of Beckley (City) appeals an order of the Circuit Court of Raleigh County rejecting its petition for a minor boundary adjustment, which had been approved by the County Commission of Raleigh County (Commission). The City claims that the court erred in allowing non-freeholders to challenge the annexation by way of a writ of prohibition and in holding that the annexation by a minor boundary adjustment was invalid.

I

In 1993, the City sought an annexation by a minor boundary adjustment under W.Va.Code, 8-6-5 (1989) of property along W.Va. Route 3 and three adjacent parcels by filing a petition for annexation with the Commission. The Commission found a minor boundary adjustment was involved and ordered a public hearing. ¹

The public hearing was held on November 16, 1993 before the Commission and there was no opposition to the annexation by the freeholders in the area to be annexed as contemplated by W.Va.Code, 8-6-5 (1989). ² Thereafter, on November 24, 1993, the Bradley-Prosperity Volunteer Fire Department and the Mabscott Volunteer Fire Department brought a writ of certiorari in the Circuit Court of Raleigh County.

The City was granted leave to intervene and argued that because neither of the volunteer fire departments was a freeholder in the area to be annexed, neither had standing to bring a writ of certiorari relying on In the Matter of the City of Morgantown, 159 W.Va. 788, 226 S.E.2d 900 (1976). In Morgantown, the city sought an annexation by a minor boundary adjustment and its petition was refused by the county commission. The city then sought a writ of error to the Circuit Court of Monongalia County, which reversed the county commission and ordered the annexation. The county commission then appealed to this Court. However, we concluded that under W.Va.Code, 8-6-5 the county commission functioned as "an administrator and not a party to the proceedings." Syllabus Point 3, in part, Morgantown. ³ Thus, we held that the county commission's interest is only "to administer the law and thus [the commission] has no standing to prosecute an appeal as an aggrieved party." Syllabus Point 5, in part, Morgantown. ⁴

In this case, the circuit court found that because the volunteer fire departments were not freeholders in the annexed area, they lacked standing under W.Va.Code, 8-6-5 (1989) to bring a writ of certiorari. The court, however, examined the configuration of the area to be annexed and determined the area did not meet the requirements of a minor boundary adjustment. ⁵ Then, the circuit court concluded that the county commission was acting beyond the scope of its authority and allowed the two volunteer fire departments to have relief through a writ of prohibition.

II

There are no disputed facts in this case and the trial court made only legal conclusions concerning the scope of W.Va.Code, 8-6-5 (1989). Consequently, our standard of review is that contained in Syllabus Point 1 of Chrystal R.M. v. Charlie A.L., 194 W.Va. 138, 459 S.E.2d 415 (1995):

Where the issue on an appeal from the circuit court is clearly a question of law or involving an interpretation of a statute, we apply a de novo standard of review.

In Peyton v. City Council of Lewisburg, 182 W.Va. 297, 298, 387 S.E.2d 532, 533 (1989), we observed the following about our annexation statutes (the relevant code sections have been extracted from footnotes and bracketed):

There are three methods whereby territory may be annexed by a municipality: (1) annexation by minor boundary adjustment [W.Va.Code, 8-6-5]; (2) annexation by election [W.Va.Code, 8-6-2]; and (3) annexation without an election [W.Va.Code, 8-6-4]....

Each of these three methods of annexation have different statutory requirements. For instance, in Peyton, supra, we dealt with annexation without an election contained in W.Va.Code, 8-6-4 (1969), which incorporated the territorial requirements contained in W.Va.Code, 8-2-1 (1969). ⁶

The minor boundary annexation procedure has not been discussed in any detail by this Court. Although a minor boundary annexation procedure was involved in Morgantown, supra, the statute's substantive provisions were not at issue. Morgantown's conclusion that the commission lacked standing to appeal a circuit court order is not helpful in this case because the commission is not appealing. Syllabus Point 2 of Morgantown did recognize the general powers of a county commission with regard to annexation:

The powers exercised by a county commission with regard to municipal annexation are wholly statutory and it can exercise no other powers except those implicit in the specific grant. ⁷

See also Syllabus Point 1, Cowan v. County Commission of Logan County, 161 W.Va. 106, 240 S.E.2d 675 (1977).

Moreover, it is generally recognized that the legislature may designate the power of annexation absent some constitutional limitations. See generally, 56 Am.Jur.2d Municipal Corporations, Counties, and Other Political Subdivisions, § 55 and § 63 (1971). Clearly under W.Va.Code, 8-6-5 (1989), the legislature delegated to the Commission the legislative and administrative authority to grant an annexation by a minor boundary line adjustment. The general powers of a commission are contained in Article 9, Section 11 of the West Virginia Constitution which includes this catch-all sentence, "[s]uch commissions may exercise such other powers, and perform such other duties, not of a judicial nature, as may be prescribed by law." We stated in Syllabus Point 3, State ex rel. State Line Sparkler of WV, Ltd. v. Teach, 187 W.Va. 271, 418 S.E.2d 585 (1992):

The legislature has authority to delegate its law-making power to municipal corporations and counties as to matters of local concern. Such delegation does not violate the separation of powers doctrine contained in Article V, Section 1 of the West Virginia Constitution.

Thus, the legislative authorization to grant an annexation through a minor boundary adjustment to the county commission in W.Va.Code, 8-6-5 (1989) is a proper delegation of legislative authority.

When we turn to the minor boundary annexation statute, we recognize that it is not a model of clarity concerning who may appeal the commission's order approving or rejecting annexation to the circuit court. Under W.Va.Code, 8-6-5 (1989), freeholders in the territory to be annexed may protest the proposed annexation at the commissioners' hearing and "[i]f the proposed change is substantially opposed at the hearing by any such freeholder, the commission shall dismiss the application." However, where at the public hearing the freeholders "are not substantially opposed to the proposed boundary change, the commission may enter an order changing the corporate limits of the municipality as requested...." W.Va.Code, 8-6-5 (1989). ⁸ These statutory provisions relate to the public hearing before the commission and are designed to guide its action with regard to approving or rejecting the proposed annexation petition. In Morgantown, we commented on this language and noted "[i]t has been held that, as a practical matter, almost unanimous approval by the freeholders of the territory is required. Frazier v. Easley, 121 W.Va. 230, 2 S.E.2d 769 (1939). Morgantown, 159 W.Va. at 793, 226 S.E.2d at 903."

W.Va.Code, 8-6-5 (1989) ⁹ does contain general language that the commission's order granting the annexation "may be reviewed by the circuit court as an order of a county commission ordering an election may be reviewed under section sixteen [§ 8-5-16], article five of this chapter." ¹⁰ This review language follows the text that allows the commission to grant the annexation petition if the freeholders are not substantially opposed to it....