Roby v. Sheppard

• Decision Date: 13 November 1896
• Parties: ROBY, Mayor, et al. v. SHEPPARD, Mayor, et al.
• Court: West Virginia Supreme Court

26 S.E. 278

42 W.Va. 286

ROBY, Mayor, et al. v. SHEPPARD, Mayor, et al.

Supreme Court of Appeals of West Virginia.

November 13, 1896

Submitted June 19, 1896

Syllabus by the Court.

1. A statute amending the charter of a town containing upwards of 2,000 population, which takes from another town of less population than 2,000 some of its territory, is not a special act amending the charter of a town of less population than 2,000, prohibited by section 39, art. 6, of the constitution.

2. In the case of a statute amendatory of a prior one, where the question is whether the object is sufficiently expressed in the title, it is unnecessary to inquire whether the title of the amendatory statute be in itself sufficiently expressive of such object, if the title of the first act be sufficient to embrace the matters contained in the amendatory act. As to the title of acts amending the Code, see opinion.

3. The matters of an amendatory act, as is the rule as to the title and matters of an original act, in order to come under the title of an original act, must not be foreign to that title. Such matters, though they may be of diverse nature, must be such as can be regarded as only in furtherance and execution of the object expressed in the title, and congruous and germane thereto by reason of having some natural relation to the subject expressed in the title. The constitution is to be liberally construed, so as to sustain the validity of the act, if possible.

4. A statute amending another by merely implication is not within section 30, art. 6, of the constitution, and need not refer to the statute it so amends either in its title or body, so its title be sufficient to cover its own matters.

5. The legislature has power to take from one municipal corporation some of its territory and include it within another, without the consent of either, if the act be not objectionable under section 39, art. 6, of the constitution as a special act.

6. The legislature having passed an act amending the charter of a town on a claim that it is unconstitutional as a special act it will be presumed that the town contains over 2,000 population, until the contrary is shown.

7. If a legislative act may, or may not be constitutional, according to the existence or nonexistence of certain facts, courts are bound to presume the existence of those facts prima facie to give validity to the act.

Appeal from circuit court, Marshall county.

Action by John N. Roby, mayor, and another against Thomas Sheppard mayor, and another. Judgment for defendants. Plaintiffs appeal. Affirmed.

W. W Arnett, for appellants.

Caldwell & Caldwell, for appellees.

BRANNON J.

When he dissolved the injunction in this case, Judge Paull, of the circuit court of Ohio county, handed to the counsel concerned the following opinion in writing, correctly stating the law of the case: "This is a suit brought by the plaintiffs as citizens of the town of McMechen, to enjoin the mayor and sergeant of the city of Benwood from collecting taxes assessed against them by the said city. On the 11th day of February, 1895, the town of McMechen, which contains a population of less than two thousand, obtained a certificate of incorporation through the circuit court of Marshall, under the provisions of chapter 47 of the Code. On the 22d day of February, 1895, the legislature of West Virginia passed an act (chapter 63, Acts 1895) amending the charter of the city of Benwood, and extending its corporate limits by annexing thereto a tract of land, known as the 'Cherokee Strip,' which constituted a part of the territory included within the boundaries of the town of McMechen. The plaintiffs claim that so much of this act as extends the corporate limits of the city of Benwood, as aforesaid, is, in effect, a special law, amending the charter of the town of McMechen, and therefore void, as being in conflict with section 39 of article 6 of the constitution, which declares that the legislature shall not pass local or special laws incorporating cities, towns, or villages, or amending the charter of any city, town, or village, containing a population of less than two thousand; but that it shall provide for the same by general law. In Hornbrook v. Town of Elm Grove, 40 W.Va. 543, 21 S.E. 851, Judge Brannon, in delivering the opinion of the court, on page 854, 21 S.E. says that the object of this constitutional provision 'was to prevent multitudinous special acts creating or amending municipal charters consuming the time of the legislature.' In Elder v. Incorporators of Central City, 40 W.Va. 222, 21 S.E. 738, Judge Holt, in speaking of this same provision, says: 'In 1872 the organization of many parts of the state into municipal corporations, for the purpose of local self-government, had become a matter of frequent and urgent necessity. The framers of the constitution thought that this need, in the great majority of cases, could be met more efficiently and impartially by a general law than by a great multitude of special enactments,' and hence the adoption of section 39 aforesaid. It will thus be seen that the act under consideration, which is an act to amend the charter of a city containing a population of more (not less) than two thousand, does not come within the object, and therefore does not give rise to any of the evils which it was the design of this constitutional provision to avert. Nor does it expressly amend, or in any manner refer to, the charter of the town of McMechen. Its indirect effect, it is true, is to detach a portion of the territory included within the corporate limits of McMechen, and annex it to Benwood. But that does not constitute an amendment of the charter of McMechen, according to the natural and ordinary meaning of the term, which, it must be presumed, was the meaning employed by the framers of the Constitution. Cooley, Const. Lim. 588. Again, in 1 Beach, Pub. Corp. § 397, it is said: 'The power to divide large municipalities, to annul their old charters, and to reorganize them, and to consolidate small ones, as well as to detach portions of territory from one and annex it to another, to meet the wishes of its residents, or to promote the public interests, as understood by it, is conceded to the legislature. This power is full, in the absence of constitutional restriction.' Now, in this state there is an entire absence of any express constitutional restriction upon the powers of the legislature over cities like Benwood, which have been incorporated by a special law, and which contain a population of more than two thousand; and section 39 aforesaid cannot, it seems to me, when construed according to its manifest spirit and meaning ( Lehman v. McBride, 15 Ohio St. 592), be held to impose any implied restrictions upon such powers. In Mackin v. County Court, 38 W.Va. 338, 349, 18 S.E. 632, 636, it is said: "Courts cannot too often repeat, what has been so often stated, that it seems threadbare that all courts, while they must defend the constitution, and the rights of the people under it, even against the legislature, yet in so doing they must move with the most solemn caution, resolve all doubts in favor of the act, and never, except where the act is very plainly and palpably and beyond doubt violative of the constitution, overthrow an act of the legislature. For...