Peyton v. City Council of City of Lewisburg

• Decision Date: 30 November 1989
• Docket Number: No. 19203,19203
• Citation: 387 S.E.2d 532,182 W.Va. 297
• Parties: Angus E. PEYTON and James F.B. Peyton v. CITY COUNCIL OF the CITY OF LEWISBURG; Joseph C. Turley, Michael McClung, William Goodwin, Paul Cooley and Thomas Campbell, Members of the City Council of Lewisburg.
• Court: West Virginia Supreme Court

Page 532

387 S.E.2d 532

182 W.Va. 297

Angus E. PEYTON and James F.B. Peyton v. CITY COUNCIL OF the CITY OF LEWISBURG; Joseph C. Turley, Michael McClung, William Goodwin, Paul Cooley and Thomas Campbell, Members of the City

Council of Lewisburg.

No. 19203.

Supreme Court of Appeals of

West Virginia.

Nov. 30, 1989.

Syllabus by the Court

1. "Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation." Syllabus Point 2, State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968).

2. " 'The word "shall" in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.' Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969)." Syllabus Point 5, Rogers v. Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986).

3. The "one hundred inhabitant" restriction in W.Va.Code, 8-2-1 (1969), is a mandatory requirement for annexation of territory of less than one square mile under W.Va.Code, 8-6-4 (1969), in view of the language in the annexation statute providing that the territory to be annexed "shall conform to the requirements" of W.Va.Code, 8-2-1.

Charles E. McElwee, Charleston, for Peyton.

Jesse O. Guills, Jr., Paul S. Detch, Richard H. Lorensen, Pros. Atty., Lewisburg, for City of Lewisburg.

MILLER, Justice:

We accepted this certified question to determine whether the population requirements prescribed by W.Va.Code, 8-2-1 (1969), apply to territorial annexations by municipalities under the provisions of W.Va.Code, 8-6-4 (1969).

There are three methods whereby territory may be annexed by a municipality: (1) annexation by minor boundary adjustment; ¹ (2) annexation by election; ² and (3) annexation without an election, ³ which is the procedure sought by the petitioners in this case. Specifically, in March, 1989, the respondents below requested the City of Lewisburg to annex approximately one hundred acres of property immediately adjoining the city. All of the property owners and residents of the proposed area to be annexed signed a petition, with the exception of Angus E. Peyton and James F.B. Peyton. Thus, the petition satisfied the requirement of W.Va. Code, 8-6-4, that it be signed by 60 percent of the freeholders and residents of the territory in question. ⁴ Following public notice and a hearing on the annexation, the city passed an ordinance annexing the territory.

The Peytons subsequently petitioned the Circuit Court of Greenbrier County to hold the ordinance invalid on the ground that the territory did not "conform to the requirements of" the incorporation statute, W.Va.Code, 8-2-1. ⁵ One of the requirements of W.Va.Code, 8-2-1, is that if the proposed area is less than one square mile, it must contain "at least one hundred inhabitants." ⁶ The Peytons argued that there are not one hundred inhabitants in the annexed area, and, thus, the property could not properly be annexed under W.Va.Code, 8-6-4.

At a hearing held on May 1, 1989, the parties stipulated that the territory in question had less than one hundred residents. The circuit court ruled that the mandates of W.Va.Code, 8-2-1, apply to an annexation under W.Va.Code, 8-6-4, and, consequently, found the ordinance void. The circuit court certified its ruling to this Court.

The Peytons' argument here is very simple: W.Va.Code, 8-6-4, specifically states that the additional territory shall conform to the requirements of W.Va.Code, 8-2-1. One of the requirements of W.Va.Code, 8-2-1, is that the proposed area have one hundred inhabitants. Because the territory in question does not meet this requirement, the ordinance annexing this property is invalid. The Peytons assert that these provisions are clear and unambiguous and should not be construed.

The respondents argue that W.Va.Code, 8-6-4, and 8-2-1, when read together, are ambiguous and that this Court must, therefore, construe the legislative intent behind these two provisions. Specifically, the respondents argue that the population requirement of the incorporation statute, as well as all of the other requirements of W.Va.Code, 8-2-1, apply exclusively to incorporation of a city, town, or village. The respondents assert that it is absurd to apply the standards set forth in W.Va.Code, 8-2-1, to an annexation of a modest amount of territory. ⁷

Furthermore, the respondents contend that other requirements in W.Va.Code, 8-2-1, are inconsistent with the concept of an annexation. For example, this provision mandates that the property be "urban in character" and that consideration be given to the "topography thereof, the benefits thereto from incorporation, the amount of uninhabited land required for parks and recreational use and normal growth and development[.]" The respondents maintain that these criteria have little or no relationship to annexation of land into an existing municipality. Because a municipality already has many of these characteristics, the urban character of the annexed property, its population, and topography are irrelevant.

Moreover, the respondents argue that the requirements of W.Va.Code, 8-2-1, are admirably suited to incorporation of a city or town. Before an area is incorporated, it is necessary to consider if the area is urban in character and whether it has a sufficient population to maintain the attendant services of a municipal corporation. Individuals seeking to incorporate property would also be concerned with the geographic size of the territory and the availability of space for parks and recreational uses.

A review of the history of these provisions may prove useful. Under the 1931 Code, the annexation statute, W.Va.Code, 8-2-11 (1931), permitted annexation only by municipal corporations with a population of less than two thousand, ⁸ required no minimum population in the territory proposed to be annexed, and did not require the territory to conform to the provisions of the incorporation statute. The incorporation statute, W.Va.Code, 8-2-1 (1931), did require a minimum population of one hundred residents in any territory to be incorporated under its provisions.

This statutory scheme was retained in the 1949 amendments to the incorporation statute and the annexation statute. ⁹ The only significant change was that a municipality could now annex property regardless of its population. The annexation statute still did not require territory proposed to be annexed to meet the standards for incorporation set out in W.Va.Code, 8-2-1 (1949).

The annexation and incorporation provisions were revised again in 1951. The requirement that "the additional territory to be [annexed] shall conform to the requirements" of the incorporation statute appeared for the first time in W.Va.Code, 8-2-8 (1951), which addressed annexation by election. ¹⁰ These amendments undoubtedly made annexation more difficult and may have been prompted by the attempted incorporation of the community of Belle, an action which was opposed by certain business and industrial facilities in the area. See Wiseman v. Calvert, 134 W.Va. 303, 59 S.E.2d 445 (1950). ¹¹ See Note, Some Municipal Annexation Problems in West Virginia, 68 W.Va.L.Rev. 394 (1966). The "one hundred inhabitant" requirement found in the incorporation statute remained unchanged.

It should be stressed that W.Va.Code, 8-2-8 (1951), and its predecessors dealt solely with annexation by election. Annexation by election is currently governed by W.Va.Code, 8-6-2 (1969), which still mandates that the territory to be annexed "shall conform to the requirements of [W.Va.Code, 8-2-1]." The respondents in this case are proceeding not under W.Va.Code, 8-6-2, but under W.Va.Code, 8-6-4, which provides for annexation without an election. ¹² This provision, which was enacted in 1967, ¹³ contains the same proviso that the proposed area of annexation "shall conform to the requirements of" the incorporation statute. This language survived the extensive statutory municipal reorganization made in 1969. ¹⁴ See Hogan v. City of South Charleston, 164 W.Va. 136, 260 S.E.2d 833 (1979).

Perhaps the legislature, like the Court in the Wiseman case, had difficulty understanding the complexity of municipal law as it relates to annexation. From a common sense standpoint, it seems unduly restrictive to allow the annexation of territory only if certain population requirements are met. However, it is equally clear that this is what the legislature intended, because since 1951 it has had numerous opportunities to alter this language and has failed to do so.

Furthermore, it is also clear that the language in W.Va.Code, 8-6-4, to the effect that the territory to be annexed "shall conform to the requirements of" W.Va.Code, 8-2-1, is unambiguous. We disagree with the respondents' assertion that this language is rendered ambiguous because application of the incorporation requirements to an annexation makes no practical sense. The fact that these requirements are inimical to an annexation attempt does not render them ambiguous.

Respondents' quarrel is not with the meaning of these words, but with their mandate. Because of this lack of ambiguity, we are controlled by our traditional principle of statutory analysis set out in Syllabus Point 2 of State v. Elder, 152 W.Va. 571, 165 S.E.2d 108 (1968):

"Where the language of a statute is clear and without ambiguity the plain meaning is to be accepted without resorting to the rules of interpretation."

E.g., Gant v. Waggy, 180 W.Va. 481, 377 S.E.2d 473 (1988); Marion County Bd. of Educ. v. Bonfantino, 179 W.Va. 202, 366 S.E.2d 650 (1988); Fraley v. Civil Serv. Comm'n, 177 W.Va. 729, 356 S.E.2d 483 (1987); Pullano v. City of Bluefield, 176 W.Va. 198, 342 S.E.2d 164 (1986); State ex rel. Underwood v. Silverstein, 167 W.Va. 121, 278 S.E.2d 886 (1981); Carper v. Kanawha Banking & Trust Co., 157 W.Va. 477, 207 S.E.2d 897 (1974); State v. General Daniel Morgan Post No. 548 V.F.W....