State ex rel. Tucker v. City of Wheeling

• Citation: 35 S.E.2d 681,128 W.Va. 47
• Decision Date: 16 October 1945
• Docket Number: 9771.
• Parties: STATE ex rel. TUCKER v. CITY OF WHEELING et al.
• Court: West Virginia Supreme Court

35 S.E.2d 681

128 W.Va. 47

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

No. 9771.

Supreme Court of Appeals of West Virginia.

October 16, 1945

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.

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 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 aforesaid and the appropriation of money to carry the same into effect on two grounds: (1) That such ordinance and appropriation are authorized under the existing special charter of the City of Wheeling; and (2) that under what is known as the Municipal Home Rule Amendment, Const. art. 6, § 39(a), and the statute enacted thereunder, being Chapter 56 of the Acts of the Legislature, 1937, and now appearing in Michie's Code 1943, as Chapter 8A, designated as the municipal home rule statute, it had such power. We will take up these contentions in the order stated.

The City of Wheeling is now operating under a special charter, being Chapter 141 of the Acts of the Legislature 1935. Pertinent provisions of that charter are as follows:

'Part 1, Section 2--The city of Wheeling shall have all powers of local self-government and home rule that are now or hereafter may be, granted to municipalities under the constitution and laws of the state, as well as all other powers possible for a municipality to have, whether such power or powers be expressly enumerated in this charter or not, and without any further action on the part of the Legislature. All such powers shall be exercised in the manner prescribed in this charter, or if not prescribed herein, in such manner as shall be provided by ordinance of council.'

'Part 1, Section 3--All legislative powers of the city shall be vested, subject to the terms of this charter and of the constitution of the state, in the council. The council shall have authority to pass all ordinances necessary and proper to carry into full force and effect any power, capacity, authority, or jurisdiction which is or shall be granted to, or fixed in the said city, or in the council or any officer of said city; * * *.'

'Part 1, Section 53--The council shall prepare a civil service ordinance which shall be applicable to the fire and police departments and to all employees in the administrative services of the city, and which shall provide for one civil service commission for the city. Such ordinance shall be adopted within one year after this charter becomes effective; and after its adoption it shall not be altered or amended in any material respect except by three-fourths vote of all members elected to council, after notice of such proposed amendment has been published in two Wheeling newspapers of general circulation in the city not later than three days before such proposed amendment is to be acted upon; nor shall such ordinance be repealed except by majority vote of the electorate of the city. Until the general civil service ordinance provided herein shall have been adopted, the civil service laws applicable to the Wheeling police department and the Wheeling fire department at the time this charter becomes effective shall have the force and effect of provisions of the charter of the city.'

Section 2 of Part 1 of the charter quoted purports to be a rather remarkable grant of power. To give to such provision any weight whatever would be to establish a dangerous precedent. Without intending to place undue limitations on the functions of the Legislature, we think it certainly exceeded its power, when, by such a broad and sweeping enactment, it seeks to create power in the future, and totally fails to define the powers granted, and leaves such powers not only to the varying opinions of different and future legislative bodies to define, but goes to the extent of conferring power which might by any possibility be exercised by a Legislature in relation to municipal affairs. Statutes should be enacted to cover specific and current intents and purposes, and so defined that the public may know what laws to obey, and what practices to avoid. We are therefore of the opinion that Section 2 of Part 1 of the special charter of the City of Wheeling,...