State Ex Rel. Tucker v. City Of Wheeling, 9771.

Citation35 S.E.2d 681
Decision Date16 October 1945
Docket NumberNo. 9771.,9771.
CourtSupreme Court of West Virginia
PartiesSTATE ex rel. TUCKER. v. CITY OF WHEELING et al.

35 S.E.2d 681

STATE ex rel. TUCKER.
v.
CITY OF WHEELING et al.

No. 9771.

Supreme Court of Appeals of West Virginia.

Oct. 16, 1945.


[35 S.E.2d 682]
Syllabus by the Court.

1. A municipal corporation operating under a special charter, ante-dating the ratification of the Municipal Home Rule Amendment to the Constitution of this State, cannot depend on powers granted to municipalities under Chapter 56, Acts of the Legislature 1937, providing for municipal home rule, until and unless it has adopted such statute, in whole or in part, in the manner provided for therein, or has amended its special charter as in said act authorized.

2. The Council of the City of Wheeling is not authorized by its special charter, Chapter 141, Acts of the Legislature 1935, either in express terms or by necessary implication, or by general statutes, to create a fund for the pension and retirement of employees of the city other than firemen and policemen.

Original proceeding in mandamus by the State, on the relation of W. B. Tucker, against the City of Wheeling, etc, and others, to invalidate ordinances creating a retirement and benefit fund for city employees other than firemen and policemen and appropriating a sum to carry out such purpose.

Writ awarded.

W. B. Casey, of Wheeling, for petitioner.

Carl B. Galbraith, A. W. Petroplus, and Gilbert S. Bachmann, all of Wheeling, for respondent.

FOX, Judge.

In this mandamus proceeding, invoking the original jurisdiction of this Court, relator seeks to invalidate an ordinance

[35 S.E.2d 683]

adopted by the council of the City of Wheeling, a municipal corporation, on the 19th day of June, 1945, which purports to amend an existing ordinance of the city, relating to the Civil Service Commission thereof, by adopting a new article designated as Article 2 thereof, creating a retirement and benefit fund for city employees, other than firemen and policemen; and a later act purporting to include in the then proposed budget of the City of Wheeling for the current fiscal year, an appropriation of the sum of fifteen thousand dollars to carry out the purpose of such amendment to the ordinance aforesaid.

Relator's petition makes parties defendant the City of Wheeling, a municipal corporation, its mayor, the members of its council, manager, treasurer, auditor and clerk. It sets up the ordinance aforesaid, and the inclusion in its budget for the current fiscal year of the sum of fifteen thousand dollars; and then avers that the expenditure of such sum of money from funds created by taxation is not a legal expenditure, for the reason that it is not for a municipal purpose; that municipal corporations depend for their power upon legislative authority, and have no powers of taxation other than those granted by the Legislature; that the council of the City of Wheeling was without power to adopt such ordinance, or to appropriate funds to meet the expense of putting the same into effect; and it prays that the ordinance of June 19, 1945, be removed from its records; that the item of fifteen thousand dollars included in its budget be removed therefrom; and that a rule be awarded against respondents to appear and show cause why the prayer of the petition should not be granted. On this showing we awarded the pending rule in mandamus.

The respondents appeared and filed their joint and several demurrer to the petition, and in support thereof filed a note of argument, in both of which they maintain the validity of the ordinance...

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