State ex rel. Alexander v. County Court of Kanawha County, No. 12213

• Court: Supreme Court of West Virginia
• Citation: 130 S.E.2d 200,147 W.Va. 693
• Decision Date: 02 April 1963
• Docket Number: No. 12213
• Parties: . Grover Smith, Jr., et al., etc. Supreme Court of Appeals of West Virginia

Page 200

130 S.E.2d 200 147 W.Va. 693 STATE ex rel. W. W. ALEXANDER
v.
The COUNTY COURT OF KANAWHA COUNTY, West Virginia and S.
Grover Smith, Jr., et al., etc. No. 12213. Supreme Court of Appeals of West Virginia. Submitted March 5, 1963.
Decided April 2, 1963.

Page 201

Syllabus by the Court

1. Municipalities operating under a charter granted under the provisions of Chapter 8 of the Code of West Virginia are specifically required to use the provisions of Code, 8-2-8, as amended in [147 W.Va. 694] 1961, with regard to annexation of any territory except minor boundary adjustments.

2. Municipalities have no inherent power with regard to the exercise of the functions of their government. Such power depends solely upon grants of power by Acts of the Legislature, and the Legislature may at any time modify, change or withdraw any power so granted by general law in conformance with the provisions of the Constitution, Article VI, Section 39(a).

Luke W. Michael, Nitro, John H. Goad, Charleston, for relator.

Charles G. Peters, Charleston, for respondents.

Martin C. Bowles, Charleston, amicus curiae.

BERRY, President.

This mandamus proceeding was instituted under the original jurisdiction of this Court by the petitioner, W. W. Alexander, Mayor of the City of Nitro, West Virginia, against the County Court of Kanawha County, West Virginia, S. Grover Smith, Jr., M. D. Robertson and J. Kemp McLaughlin, as members thereof, to compel the County Court to enter an order prepared by the petitioner and presented to said Court to the effect that the Court had counted and canvassed the votes cast at a special election held in the City of Nitro on June 19, 1962, annexing certain territory to the City of Nitro, as provided in Code, 8A-6-23, as amended, and that said County Court certify the results of said election to the Circuit Court of Kanawha County. A rule was issued by this Court returnable February 26, 1963, directing the respondents to show cause why the writ should not be awarded as prayed for by the petitioners. On the return date a petition to intervene was filed on behalf of E. D. Shahan and others as residents, citizens and taxpayers in the area sought to be annexed, praying to be made parties respondent to this proceeding. The petition to intervene [147 W.Va. 695] was denied by this Court, but leave was granted to their attorney, Martin C. Bowles, to file an amicus curiae brief with the Court stating the position of certain parties in connection with this proceeding, and on joint motion of the parties, the proceeding was continued until March 5, 1963, at which time an amicus curiae brief was filed and the case was submitted to the Court for decision on argument and briefs.

A stipulation of facts was filed in this case by the parties as follows: That the City of Nitro was incorporated by the Circuit Court of Kanawha County, West Virginia, on February 20, 1932; that said City on March 2, 1948, by Charter Amendment, adopted all the provisions of Articles 4, 5 and 6 of Chapter 8A of the Code of West Virginia, as amended; that a certified copy of said proceedings amending the Charter was delivered to the Clerk of the House of Delegates and recorded in the offices of the County Clerks of Putnam and Kanawha Counties; that annexation elections were thereafter held by the City of Nitro under the provisions of Chapter 8A, Article 6 of the Code of West Virginia, as amended,

Page 202

and by virtue thereof, certain territories were annexed to said City in 1950, 1954 and 1958; that the City of Nitro consists of a mayor, recorder and council members, that the mayor and council members are the governing body and the City of Nitro is a Class III City, as defined by...