South Morgantown v. Morgantown.

• Decision Date: 07 September 1901
• Citation: 49 W.Va. 729
• Parties: South Morgantown v. Morgantown.
• Court: West Virginia Supreme Court

49 W.Va. 729

South Morgantown

v.Morgantown.

Supreme Court of Appeals of West Virginia.

Decided September 7, 1901.

1. Constitution Legislative Power..

The Constitution, in Article VI, section 39, does not prohibit the Legislature from passing a special law repealing the charter of a municipal corporation, or uniting the territory of several municipal corporations in one municipal corporation, and thus repealing their former charters, (p. 730).

2. Municipal Corporation Constitutional.

Chapter 144, Acts of 1901, incorporating the city of Morgantown, is not in violation of Article VI, section 39, of the Constitution, (p. 731).

3. Statutes Construction Reasonable Doubt.

Courts will not hold an act or. the legislature to be contrary to the Constitution without great caution and unless it be manifestly and beyond doubt unconstitutional, (p. 732).

Application by the mayor and couneilmen of South Morgantown for a writ of mandamus against the city of Morgantown and others. Writ denied, and rule for writ of mandamus awarded by judgment of the Supreme Court.

Rule Discharged.

E. E. L. Allen, for petitioners. Cox & Baker, for respondents.

Brannon, President:

The towns of Morgantown, South Morgantown, Seneca and Grcenmount, covering adjoining territory in Monongalia County, existed as separate municipal corporations under distinct charters until the act of the legislature passed 24th of January, 1901. That act erected and created a new municipal corporation by designating certain territory, including all the territory covered by those four towns, and incorporating it under the name of "The City of Morgantown." It repealed the preexisting charters of those towns by necessary implication. Dunfee v. Childs, 45 W. Va. 159; Cains Case, 8 Id. 720: Mobile v. Watson, 116 IT. S. 289. The recorder of the former town of South Morgantown, under authority of that act, turned over to the officers of the new municipality the seal, records and papers of the town, and later the mayor and councilmen of South Morgantown, denying the validity of the act of 1901, and asserting the continued existence of South Morgantown as a municipal corporation, applied to Judge John W. Mason, of the circuit court of Monongalia County, for a writ of mandamus against the council of the new city of Morgantown to compel it to restore to the council of South Morgantown its corporate seal, records and papers, which being refused by Judge Mason, a rule for a writ of mandamus was awarded by a judge of this Court. The city of Morgantown appeared to this rule and moved its discharge because improvidently awarded, on the claim that the petition for the writ itself discloses no ground for it, and also filed an answer.

The sole question necessary to be decided, the only one discussed by counsel in oral argument, is the validity of the act of 1901, incorporating the new city and blotting out the four former towns. By common law the legislature has vast powers over municipal corporations. As stated in Hornbrooh v. Elmgrove, 40 W. Va. 543, it can make and unmake them at its discretion. Municipal charters are not contracts between the State and towns or cities, but are simply granted for governmental purposes, as mere instruments chosen by the legislative power to perform certain functions in the administration of the State government. No right vests under them in the towns or cities that is above subsequent legislation. Probasco v. Moundsville, 11 W. Va. 501. The proposition stated in Roby v. Sheppard, 42 W. Va. 289, is not too broad, that is, that the power of the legislature to divide large municipalities, to annul their old charters, to re-organize them, to consolidate small ones, as well as to detach portions of territory from one and annex them to another, to meet the wishes of its residents, or to promote the public interest, as understood by the legislature, is conceded to the legislature. Its power is thus full, in the absence of constitutional prohibition. This is well settled law. Board v. Board, 30 W. Va. 425; 1 Beach, Pub. Corp., s. 397; Piqua Branch Bank v. Knoop, 16 How. 369;Merriweather v. Garrett, 102 U. S. 472; Kelley v. Pittsburg, 104 IT. S. 78; Ohio v. Cincinnati, 27 L. E. A. 737; Girard v. Philadelphia, 7 Wall. 10. But it is contended that these principles do not apply, because section 39, Article VI, of the Constitution, provides that the legislature shall pass no local or special law "incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population of less than two thousand;" and that the four towns each contain a population of less than two thousand, and that the act is to be held as one amending their charters. Now, it is clear that unless this language does disable the legislature from passing the act in question, that act is constitutional; for unless we can say that the clause quoted from the Constitution makes an exception to the wide power of the legislature, that power must prevail, as set forth above. Eemember that the power of the legislature is unlimited, except so far as this provision limits it. It limits it only as to incorporation and amendment of charters; it does not stay the hands of the legislature in the repeal of a...