State ex rel. Plymale v. City of Huntington

• Decision Date: 04 June 1963
• Docket Number: No. 12231,12231
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. J. Fred PLYMALE et al. v. CITY OF HUNTINGTON, a Municipal Corporation, George L. Garner, etc., et al.

Page 160

131 S.E.2d 160

147 W.Va. 728

STATE of West Virginia ex rel. J. Fred PLYMALE et al. v. CITY OF HUNTINGTON, a Municipal Corporation, George L.

Garner, etc., et al.

No. 12231.

Supreme Court of Appeals of West Virginia.

Submitted April 23, 1963.

Decided June 4, 1963.

Syllabus by the Court

1. '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).' Point 2, Syllabus, State ex rel. Alexander v. The County Court of Kanawha County, et al., W.Va., 130 S.E.2d 200.

2. In the event of an inconsistency or conflict between a provision of a city charter and a general law, the latter will prevail. 3. A state statute is a general law when it operates uniformly on all persons and things of a class.

J. Flovd Harrison, Wayne, for relators.

Maxwell W. Flesher, City Atty., Huntington, for respondents.

CAPLAN, Judge.

This is an original proceeding in mandamus wherein the relators, J. Fred Plymale, Boyd Markin, Ralph W. Peters and Clarence Duvall, citizens and qualified voters of the City of Huntington, seek to compel the respondents, the City of Huntington, a municipal corporation, George L. Garner, Budd L. Moser, John J. Durkin, A. E. Harris, John B. Meek, Elmer Brammer and Harry S. Damron, councilmen, and Florence Williams, city clerk, to submit to the voters of the City of Huntington the question of the adoption or rejection of two ordinances proposed by initiative under the provisions of Article XIII, Sections 113 and 116, of the Charter of the City of Huntington.

On June 25, 1962, the Council of the City of Huntington, proceeding under the provisions of Code, 8-4-20, as amended, adopted two ordinances, one providing for the assessment and collection of a fee for refuse removal and the other providing for a fee for fire protection. These fees, to become effective on July 1, 1962, were calculated to raise additional revenue in the amount of approximately $543,000.00, and the revenue anticipated therefrom was placed in the budgets of the city for the fiscal years beginning July 1, 1962 and July 1, 1963. These anticipated revenues, and appropriations based thereon, were ratified and approved by the State Tax Commissioner.

Pursuant to the provisions of said ordinances, fees for refuse removal service are currently being collected and plans are being made for the collection of the fire service fees.

On July 7, 1962, two petitions were filed with the city clerk, the first protesting the adoption of the fire service fee and the second protesting the adoption of the refuse removal fee. These petitions were filed within fifteen days after the publication of the ordinances and obviously were intended to require a referendum under the provisions of Code, 8-4-20, as amended. It was subsequently determined by the clerk, and so reported to council, that less than thirty per cent of the registered voters of the city had signed the protesting petitions. As a result, the clerk, by certificate, declared the petitions to be insufficient. The council received the report of the clerk and declared that the provisions of the statute calling for a referendum were not complied with and that the said fee ordinances were in full force and effect. No challenge of council's action upon these protesting petitions was made, nor was there any appeal of any kind from such action.

Subsequently, on January 22, 1963, proceeding under the provisions of Article XIII of the Charter of the City of Huntington, petitions bearing the signatures of 8,400 allegedly qualified voters were filed with the city clerk by a committee of circulators, comprised of Homer L. Harris, T. E. Miller, Homer G. Heck, Owen R. Campbell and Boyd Markin. These petitions contained the full text of the proposed initiated ordinance, the effect of which would repeal the refuse removal fee ordinance, and requested its enactment by the city council or its submission to the qualified voters at an election for ratification or rejection. It is admitted that the number of signatures in these petitions constitutes more than ten per cent of the registered voters of the City of Huntington. On February 11, 1963, like petitions containing the same 11, 1963, like petitions containing the same city clerk, proposing an ordinance repealing the fire service fee ordinance and also requesting its enactment by the city council or its submission to the qualified voters at an election for ratification or rejection. On the same date, February 11, 1963, the city council, by resolution declared the petitions filed under the provisions of Article XIII, Section 113 of the charter, null and void, and took no further action in relation thereto. As a result of this action by the council, these petitioners seek this writ of mandamus.

On April 1, 1963, a rule was awarded by this Court returnable April 23, 1963. The respondents filed their demurrer and answer to the petition and the case was heard upon said pleadings and upon the briefs and arguments of counsel.

The City of Huntington operates as a home rule city, having adopted a charter under the provisions of Chapter 8A of the 1931 Code, as amended. The basic question presented in this proceeding is whether these fee ordinances, after being enacted and put into effect by the city council under the provisions of Code, 8-4-20, as amended, can be repealed by invoking the initiative power contained in Article XIII, Section 113, of the Charter of the City of Huntington. It is the contention of the relators that such initiative powers can be used to effect the repeal of the fee ordinances. On the other hand, the respondents take the position that any action to prevent these fee ordinances from becoming effective must be taken in accordance with the provisions of Code, 8-4-20, as amended, and, since the time to act thereunder has expired, the relators can not prevail. It becomes pertinent to the proper consideration of this case, therefore, to examine the statutory provision under which these ordinances were enacted and, further, to examine the pertinent provisions of the city charter.

The material portions of Code, 8-4-20, as amended, read as follows: 'The governing authority of every municipal corporation that furnishes any essential or special municipal service, including police and fire protection, parking facilities on the streets or otherwise, recreational facilities, street cleaning, street lighting, sewerage and sewage disposal, and the collection and disposal of garbage, ashes or other waste materials, may by ordinance provide for the continuance, maintenance, installation or improvement of such service, may make reasonable regulations with respect thereto, may impose upon the users of such service reasonable rates, fees and charges to be collected in the same manner as municipal taxes are collected or in some other manner specified in the ordinance, and may provide penalties for any violation of such ordinance. The municipal corporation shall not, however, have a lien on any property as security for payments due under the such ordinance: Provided, however, that any ordinance enacted under the provisions of this section shall be published at least once a week for two successive weeks in two newspapers published in such municipality, or if there be only one newspaper published therein then in that newspaper, or if there be no such newspaper published then by posting copies of such ordinance for a like period in at least ten conspicuous places in such municipality, and in the event thirty per cent of the registered voters by written petition duly signed by them and filed with the municipal authority within fifteen days after the expiration of such publishing or posting protest against such ordinance, the ordinance shall not become effective until it shall be ratified by a majority of the votes cast by the duly qualified...