Wiseman v. Calvert

• Decision Date: 06 June 1950
• Docket Number: No. 10235,10235
• Citation: 59 S.E.2d 445,134 W.Va. 303
• Parties: WISEMAN et al. v. CALVERT et al.
• Court: West Virginia Supreme Court

Page 445

59 S.E.2d 445

134 W.Va. 303

WISEMAN et al. v. CALVERT et al.

No. 10235.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1950.

Decided April 4, 1950.

Rehearing Denied June 6, 1950.

Syllabus by the Court

1. Chapter 83, Acts of the Legislature, 1949, in so far as it applies to the incorporation of municipalities of two thousand population or less, is not violative of Article V or Article VIII, Section 24, of the Constitution of West Virginia, and, as so applied, is constitutional and valid.

2. The power vested in and the duties imposed upon a county court relating to the incorporation of a municipality, by Chapter 83, Acts of the Legislature, 1949, Regular Session, are legislative and not judicial in nature, within the meaning of Article VIII, Section 24, of the Constitution of this State.

3. Chapter 83, Acts of the Legislature, 1949, Regular Session, in so far as it relates or may be applied to municipalities in excess of two thousand population, Article VI, Section 39(a), of the Constitution of West Virginia and, to that extent, is unconstitutional, null and void.

4. Prohibition does not lie to control the action of a county court in exercising power not judicial or quasi judicial in its nature in the incorporation of a municipality, under Chapter 83, Acts of the Legislature, 1949, Regular Session.

Spilman, Thomas & Battle, Charleston, Robert H. C. Kay, Charleston, Frank T. Litton, Charleston, Harold H. Neff, Charleston, Howard R. Klostermeyer, Charleston, for petitioners.

Charles P. McCabe, Charleston, McCabe & McCabe, Charleston, for defendants.

HAYMOND, Judge.

This original proceeding in prohibition involves the power and the authority of the County Court of Kanawha County to issue a certificate of incorporation to a municipality to be known as the City of Belle, comprising an area slightly in excess of one square mile and containing approximately 2353 to 2500 residents, in Malden District of that county. The individual petitioners, H. W. Wiseman, M. F. Burgess, James M. Elliott, G. C. Fauber, Jr., Mayme Elliott and H. E. Shock, residents and qualified voters of the western portion of the area, in behalf of themselves and numerous other adult residents of that part of the area, and the corporate petitioners, Auto-Park Theatre, Inc., Belle Alkali Company, E. I. du Pont de Nemours and Company, Givaudan-Virginia, Inc., New York Central Railroad Company and Toledo and Ohio Central Railway Company, the owners and the operators, or the operators, of various large tracts of land devoted to industrial, railroad or business uses in a large portion of the territory in the central section of the area, seek a writ from this Court to prohibit the defendants, Carl Calvert, Mont Cavender and J. M. Slack, Jr., commissioners of the county court and all representatives appointed or authorized by that court to act for it in connection with the incorporation of the proposed municipality, and R. Dayle Fidler, F. H. Givens, B. S. Smithers, Elijah Peck, H. L. Fletcher, Nancy B. Martin, Frances Perine, Hector Frame, Albert Garten, Ira Thompson, James B. Smithers, Margaret Rotenberry, Pauline Gray, Hoyt Hunter and W. A. Seacrist, the petitioners for a certificate of incorporation for the proposed City of Belle, filed on October 17, 1949, in the county court in a proceeding for that purpose which is now pending and undetermined, from taking any further action in such proceeding other than to dismiss it.

Upon the filing of the verified petition for a writ of prohibition this Court, on December 5, 1949, awarded a rule returnable January 11, 1950. On that day the defendants R. Dayle Fidler and the other petitioners in the proceeding before the county court filed their written demurrer and their joint and several answer, duly verified, and upon these pleadings and the briefs and the oral arguments in behalf of the petitioners and the answering defendants, respectively, this proceeding was submitted for decision.

The proceeding to incorporate the municipality was instituted in the county court under Chapter 83, Acts of the Legislature of West Virginia, 1949, Regular Session, which amended and reenacted Article 2, Chapter 8, Code, 1931, the substance of which, as Chapter 47 of earlier codes, was in force and effect in this State for many years. In so far as they relate to the question presented in this proceeding, the principal amendments to the prior statute, Article 2, Chapter 8, Code, 1931, effected by the present act, vested the authority to issue a certificate of incorporation, which former statutes conferred upon the circuit court, in the county court of the county in which the territory involved is located. The proceeding was matured for hearing in the manner provided by Sections 3 and 4 of Chapter 83 of the Acts of 1949 and, at the hearing on October 17, 1949, Wiseman and the other individual petitioners and the corporate petitioners, in this proceeding, appeared and opposed the incorporation on substantially the same grounds on which they seek the writ of prohibition in this Court. They either demurred to or answered the petition in the county court, challenged its sufficiency under the statute, attacked the constitutionality of the statute, and denied the right of the county court, because of the character and the relative locations of the various sections of the area, the different uses to which they are devoted, and the number and the territorial distribution of the residents within the proposed boundaries, to issue a certificate of incorporation for the territory as a municipality. They also filed, in the form of petitions alleged to contain the signatures of a large number of adult residents of each of the eastern and western sections of the area, the protests of a large number of persons against the incorporation of these sections in the proposed municipality.

The county court overruled all objections to the incorporation and granted the prayer of the petition to incorporate and, by order entered November 18, 1949, found and provided that the amount of territory proposed to be incorporated as shown by the map and the survey filed with the petition, was not disproportionate to the number of its residents; that the map and the survey accurately showed and described the territory to be incorporated; that they were subject to examination in the manner and for the time prescribed by law; that the boundaries of the territory were correctly shown by courses and distances indicated on the map; and that the requirements of Chapter 83 of the Acts of the Legislature, 1949, Regular Session, had been complied with in all respects. The county court further ordered that a census be taken on December 16, 1949, and that an election be held on January 17, 1950, established four voting places within the territory to be incorporated, and appointed various persons to take the census, to register the qualified voters, and to act as commissioners and clerks to conduct the election. The court also provided that no census should be taken and no election should be held until a bond for costs should be given by the petitioners seeking incorporation, which bond has been entered into by them.

Other than a disagreement between the parties to this proceeding concerning the accuracy of the map and the survey and the size of the area involved, which the petitioners in this Court allege is 675 acres and the answering defendants aver is 703 acres, the material facts, as disclosed by the pleadings, bearing upon the character of the territory to be incorporated, the use to which the lands within it are devoted, and the number and the distribution of the residents in the different sections within the proposed boundaries, are not disputed. In consequence only question of law are presented.

The territory sought to be incorporated as the City of Belle is designated as 'Belle, unincorporated' on road signs placed by the State Road Commission at the east and west boundaries of the area along U. S. Route 60 which extends generally east and west through it. Within the territory, which is approximately one fourth of a mile in width from north to souch, and slightly over three miles in length, from east to west, are three individual sections. One of these, sometimes referred to as 'East Belle', in the easterly portion, contains approximately 303 acres of hill and bottom land with 507 residences and 1933 inhabitants; another, sometimes referred to as 'West Belle', in the westerly portion, contains approximately 157 acres of hill and bottom land, with 110 residences and 420 inhabitants; and the third, in the central portion, contains approximately 215 acres of hill and bottom land. This central portion is used or held for industrial purposes and in it are located large plants of the corporation petitioners Belle Alkali Company and E. I. du Pont de Nemours and Company. There are no residences and no regular inhabitants in this industrial area. The hill land in the entire territory is situated on its northern side and is to the north of U. S. Route 60 and the line of railroad operated by the corporate petitioner, New York Central Railway Company, which extends through the area and runs approximately parallel with the highway. The hill land is steep, largely undeveloped, and now contains no streets or building lots. The assessed valuation of the property in the entire territory is about $8,000,000 which, if included in the proposed municipality and subjected to the maximum rates of levy, would produce municipal revenue in direct property taxes of approximately $38,000.00 annually which by special levy could be increased to approximately $49,000.00 annually and, by the action of the voters of the municipality, further increased to approximately $58,000.00 annually, of which taxes the owners of the property devoted to industry, public utilities, and business would be required to contribute approximately 90.8 per cent.

Upon...