Richards v. Clarksburg.

• Decision Date: 26 November 1887
• Citation: 30 W.Va. 491
• Parties: Richards v. Clarksburg.
• Court: West Virginia Supreme Court

30 W.Va. 491

Richards

v.Clarksburg.

Supreme Court of Appeals of West Virginia.

Submitted September 17, 1887.

Decided November 26, 1887.

1. Municipal Corporations Incorporated Towns and Villages Powers.

Every town and village in this State, incorporated under the provisions of chapter 47 of the Code, or to which they apply, is a municipal corporation possessing all the powers incident to such corporations at common-law, not changed, abolished, or prohibited by statute. (p. 495.)

2. Municipal Corporations Incorporated Towns and Villages Powers.

The corporate powers of every such municipal corporation can only be exercised by the common-council thereof, or under its authority, except where otherwise provided by law. (p. 504.)

3. Municipal Corporations Incorporated Towns and Villages Powers.

The "corporate body at large" of every such incorporated town or village, in the exercise of its corporate po vers, is represented by the "common-council" thereof. (p. 504.)

4. Municipal Corporations Amotion.

The power to remove a corporate officer from his office is one of the common-law incidents of all corporations. (p. 404.)

5. Municipal Corporations Amotion.

The common-council of the "town of Clarksburg," in this State, being a municipal corporation, existing under its charter as amended by chapter 47 of the Code, possesses such power of amotion, and for good cause may remove from his office the mayor of said town. (p. 504.)

E. Maxivell for petitioner.

John Bassel for respondent.

Woods, Judge:

On the twelfth of August, 1887, Wilbur F. Richards presented to one of the judges of this Court his petition, verified by his affidavit, alleging that on the first of January, 1887, he was duly elected mayor of the town of Clarksburg, and that at the same time J. F. Kearns, J. M. Swartz, Lee Haymond, C. M. Hart, and S. Hoff were duly elected members of the common-council, and M. M. Thompson recorder of said town, and that since his election and qualification as such mayor he has at all times faithfully discharged the duties of said office; that on the fifth of August, 1887, one Martin Feeny made complaint on oath, before a notary in and for Harrison county, charging petitioner with official misconduct in this: "That on the twenty third day of June, 1887, Wilbur F. Richards then being mayor of said town, there was a circus, or show of like kind, within the corporate limits thereof, and that being informed that certain persons, and among them one Martin Feeny, would attend such show, intending to assault one Wm. Maphis, should he be there, the said Richards, as such mayor, instructed and charged Samuel Kidd and Wm. A. Roff, then being members of the police force of said town, and other persons whose names are unknown, who were connected with said show, to make no arrests of any person or persons who might attempt to assault or injure said Maphis, but to club such persons as might attempt to make such assault while they had life in them; meaning and intending thereby that said members of the police force and others should either kill or inflict great bodily injury upon such persons, including Feeny, who might assault or attempt to assault said Maphis, instead of directing such policeman and others to preserve the peace of said town by proper and legitimate means; and asking for this cause that petitioner should be removed from his office of mayor; which complaint was filed at a meeting of said town council on the fifth of August, 1887; that the town council thereupon fixed upon the sixteenth of August, 1887, for the trial of said charge, a copy of which complaint and order was served upon, petitioner. The petitioner further alleged that there is no authority in the charter of the town of Clarksburg giving the council of said town jurisdiction to try the said complaint, and that the said council is proceeding to try the same, without the members being first sworn to impartially try the same; and prayed that the town council of Clarksburg and Feeny be prohibited from all further proceedings in the premises.

A rule was awarded the petitioner by said judge against the defendants, returnable to this Court on the second day of its September term, 1887, at Charlestown, to show cause why a writ of prohibition should not issue as prayed for. The rule was returned executed, and on the return-day, duly docketed in this Court. The defendants, Thompson, Hart, Haymond, and Kearns, members of the town-council of Clarksburg, for answer to the rule, said that the town of Clarksburg was incorporated by the Legislature of Virginia by an act passed March 15, 1849; that by the provisions of said act, the government of said town was vested in a board of seven trustees, to be elected by the voters of said town, and certain other persons, who were owners of property within the same; that said board was authorized to appoint officers, to-wit, clerk, treasurer, and sergeant, and by section 10 of said act were authorized to remove them for official misconduct; that this charter was amended by acts of the Legislature of this State passed on the second of February, 18G6, and February 27, 1867, and enlarged by chapter 47 of the Code of West Virginia, and amended by the act of March 14, 1882; that by section 14 of chapter 47 of the Code all the corporate powers of the said town were vested, in the council thereof; that among the powers so vested is the power of amotion, or removal of its officers for misconduct in their official character; that respondents, as members of said council, entertained charges of official misconduct against said Richards, preferred by said Martin Feeny, as they believed they had the right to do, and they submit they have the right to hear and determine the same without hindrance or interference from any court, or other jurisdiction.

To this return the petitioner has demurred, and we are now called upon to determine whether the "common-council of the town of Clarksburg" has jurisdiction to try the mayor of said town upon charges of official misconduct, and, upon conviction thereof, remove him from his office.

By the first section of chapter 47 of the Code, which went into effect on the first of April, 1869, it is declared that "the towns and villages heretofore established in this State remain subject to the laws now in force applicable thereto respectively; and the provisions hereinafter contained in this chapter shall be deemed applicable only to towns and villages hereafter established, except that the council of a town or village heretofore established, may exercise all the powers conferred by this chapter, although the same may not be conferred by their charter; and, so far as this chapter confers powers on a town or village council not conferred by the charter of any such town or village, the same shall be deemed an amendment to said charter." Section 13 of said chapter, as amended by chapter 45, Acts 1877, declares that "the municipal authorities of such town or village shall be a mayor, a recorder, and five councilmen, who shall be freeholders of such town or village, and who shall form a common-council." And section 14 further declares that "the mayor, recorder, and councilmen of such town or village, as soon as they have been elected and qualified, and their successors in office, shall be a body politic and corporate by the name of 'The town or village of and shall have perpetual succession and a common seal; and by that name may sue and be sued, plead and be impleaded, purchase and hold real estate necessary to enable them the better to discharge their duties, and needful for the good order and government of said town or village. All the corporate powers of the corporation shall be exercised by said council, or under their authority, except when otherwise provided." And by section 29 of chapter 47 it is further declared that, "to carry into effect [certain enumerate powers,] and all other powers, conferred upon such town or village, or its council, by its council, or by any future act of the Legislature of this State, the council shall have power to make and pass all needful orders, by-laws, ordinances, resolutions, rules, and regulations not contrary to the constitution and laws of this State."

Chief Justice Marshall defines a "corporation" to be an artificial being, invisible, intangible, and existing only in contemplation of law. Being the mere creature of the law, it possesses only those properties which the charter of its creation confers upon it, either expressly or as incidental to its very existence. These are such as are supposed to be best calculated to effect the object for which it is created. Dartmouth College v. Woodward, 4 Wheat. 639. Municipal corporations are bodies politic and corporate of the general character above described, established bylaw to assist in the civil government of the country, but chiefly to regulate and administer the local or internal affairs of the city, town, or district which is incorporated. 1 Dill,. Mun. Corp., § 19. Like all other corporations in this State, they must be created by statute. They possess no powers or faculties not conferred upon them, either expressly or by fair implication, by the law which creates them, or by other statutes applicable to them, and they can only exist by virtue of express legislative enactment, creating or authorizing the creation of the corporate body. After a corporation is so formed it acquires many powers, rights, capacities, and incapacities. Some of these are necessarily and inseparably incident to every corporation; which incidents as soon as a corporation is created are of course tacitly annexed. These, according to Sir William Blackstone, are (1) to have perpetual succession; (2) to sue and be sued, implead or be impleaded, grant or receive, by its corporate name; (3) to purchase and hold lands for the benefit of themselves and successors; (4) to have a common seal; and (5) to make by-laws or private statutes for the better government of (h...