Wade v. City of Richmond

• Decision Date: 21 May 1868
• Citation: Wade v. City of Richmond, 59 Va. 583 (1868)
• Parties: WADE & als. v. THE CITY OF RICHMOND. THOMAS & als. v. THE CITY OF RICHMOND.
• Court: Virginia Supreme Court

59 Va. 583

WADE & als. v. THE CITY OF RICHMOND.

THOMAS & als. v. THE CITY OF RICHMOND.

Supreme Court of Appeals of Virginia.

May 21, 1868

1.The act, Sess. Acts 1866-67, p. 635, extending the boundaries of the city of Richmond, is not unconstitutional in any of its provisions.

2.The act operates upon the municipal relations of the inhabitants of the territory annexed to the city, but in political elections they are still to vote as part of the county of Henrico.

3.The General Assembly having the authority to extend the boundaries of the city, the justice or expediency of it is not a question of which the courts can take jurisdiction.

4.That the tax-payers of the county may have the burthen of taxation increased, or the creditors may have their security lessened by the reduction of the value of the subjects of taxation, or that the inhabitants in the annexed district may be subjected to heavier taxation, does not affect the constitutionality of the act.

The first of these cases is a bill for an injunction by William E. Wade and others, in which they allege that they are citizens, tax-payers, property-holders, and voters in the county of Henrico, beyond the proposed boundary of the city of Richmond; and that they are also creditors of the county.That the General Assembly, by an act passed on the 13th of February, 1867, entitled an act to extend and define the boundaries of the city of Richmond, propose to take from the county of Henrico and add to the city of Richmond a large portion of the territory, and about half the population and taxable wealth of the county of Henrico.That as tax-payers property-holders and creditors of the county, they will be greatly injured by this act, by the increase of taxation which they will be required to pay, and the diminution of their security as creditors of the county.

They insist that the boundaries of the county of Henrico and the city of Richmond are fixed in the constitution of the State and cannot be changed by law; and that the act of the 13th of February, 1867, is an assumption of power unauthorized by the constitution of the State, in derogation of the rights of the people, and therefore null and void.And they pray for an injunction to restrain the city of Richmond, its officers and agents, from carrying into effect the said act of Assembly and that the act may be declared unconstitutional and void.

The second case is a bill by George W. Thomas and others residing in that part of the county proposed to be included within the city of Richmond, in which they allege that they will be subjected to heavier taxation in the city than they would be in the county.They insist that the act is unconstitutional and void, on the grounds stated in the first bill; and they pray for a similar injunction and relief.

The Circuit Court of the city of Richmond overruled the motions for injunctions in the cases; and the plaintiffs thereupon applied to this court for appeals, which were allowed.

In this court it was agreed by the counsel in the causes, that the act took from the county of Henrico and added to the city of Richmond about fifteen hundred acres of territory, that had been already laid off, built up, and densely populated as suburbs of the city, and took within these limits a population of about fourteen thousand; and there was cut off from the city about one acre.

S McRae, for the appellants.

The act of the General Assembly, passed the 13th day of February 1867, entitled an act to extend and define the boundaries of the city of Richmond, the effect of which is to exscind and annex a large part of the territory and population of Henrico to the city of Richmond, it is submitted, is unconstitutional.

1st.The constitutions of 1851 and 1864 specifically recognize and establish certain counties and cities as distinct constitutional divisions, and distribute and apportion representation to each.Art. 4, sect. 2.They are divisions fixed in the constitution as firmly as the House of Delegates or Senate.When the city of Richmond and county of Henrico were fixed by name as distinct constitutional divisions, their territory and boundaries as then existing, were also fixed.Name, territory and boundary are essential to the existence of a city or county.The name implies territory and boundary, and being fixed in and by the constitution, are permanent and unchangeable.

The constitution of 1851, 4th art., 2d sec., provides that the city of Richmond shall elect three delegates, and the county of Henrico shall elect one delegate.Here the boundary between Henrico and the city of Richmond is fixed; their territory separated, and separate and independent elections by separate and independent constituencies ordained.The same article, third section, provides that the city of Richmond shall be another district (Senatorial), and that the counties of Henrico and Hanover shall form another district (Senatorial), recognizing and establishing distinct communities, distinct political rights (elective and representative), and separate and distinct territory, on which these rights are to be enjoyed.

Art. 6, sect. 2, makes Henrico a part of the sixth circuit (judicial), and the city of Richmond the seventh circuit (judicial).Here again we have the recognition of the city of Richmond and the county of Henrico as distinct territorial divisions.

Neither of these articles of the constitution can be operative unless Henrico and Richmond comprise separate and independent territories, inhabited by separate and independent populations.The 27th section of the same article provides that each county shall be laid off into districts, as nearly equal as may be in territory and population.Under this section, the entire territory of Henrico is required to be laid off; but Richmond is not laid off as as a part of this territory, because the city of Richmond and the county of Henrico are territorially separate and distinct.All land within the boundaries of Henrico must be part of its territory, and is required to be included in the county districts.All not included must be without its territorial limits.In this section, which relates specifically to territory, we have a clear warrant for the position that the county of Henrico and city of Richmond are territorially separate and distinct.What the constitution has separated, the law cannot unite.In the language of the Massachusetts judges, 6 Cush. p. 580, on the subject of change of boundaries, " the counties were made senatorial districts; the effect of which was to make the counties, with their then actual limits, permanent senatorial districts.That which is made permanent by the constitution cannot be changed by law."Henrico and the city of Richmond, by their then actual limits, having been made separate constitutional divisions for the election of delegates, and separate permanent senatorial districts, and separate individual districts and separate municipal districts, by parity of reasoning, their boundaries cannot be changed by law.

Public corporations created and existing only by law, may be changed, and, if purely public, even destroyed by law.Thus all the counties, cities and towns of the State, not specifically mentioned, nor having a share of separate representation, in and by the constitution, may have their boundaries changed.They are subject to the law, being but creatures of the law.They have no place in the constitution; they have no political status; they exist only on the statute book; their organization is purely municipal.Their boundaries, as well as their names, are unknown to the constitution.They obliterate no boundary, and create no new one, for the county within which they may exist.Their vote is that of the constitutional county within which they may be.Thus the vote of Lynchburg is the vote of Campbell; the vote of Manchester is the vote of Chesterfield; the vote of Tucker is the vote of Randolph.Certain counties and the cities of Richmond, Norfolk and Petersburg, named in the constitution, and to which separate representation is apportioned, are not only constitutional counties and cities, but they are a part of the structure of the constitution itself; all other counties, cities and towns are public corporations, or quasi corporations, unknown to the constitution, creatures of the law only, and of course changeable by law.

Under the first constitution of Virginia, the counties were not named, and there was no apportionment.No county had a status in that instrument, fixing it in its structure, distinguishing it from other counties, and imparting to it peculiar political and other rights.Name, territory and boundary were all the endowments of law, and could therefore be changed by law.Giving to each county two representatives fulfilled thatconstitution on the subject of representation, although the name and boundaries of each county in the State had been changed.Loudoun and Warrick had equal shares of representation, not as Loudoun and Warwick, (for these names were unknown to the constitution,) but as counties which the law could name, enlarge and diminish, at pleasure.But Loudoun and Warwick now have each a name, territory and boundary fixed in the constitution, which the law cannot change, because the constitution is paramount to the law.Thus, in some of the other States of the Union, where counties, cities and towns were mere civil divisions--the creatures of the law, and no part of the constitution--their boundaries were changed by law; but when by amendmentthey were fixed in the constitution by name, it was held their boundaries could no longer be changed by law.30 Barb. pp. 365, 366;2 Gray, p. 104;6 Cush. 578.

However it may be held as to the separation of Richmond and Henrico by an...