Cowan v. County Commission of Logan County

240 S.E.2d 675, 161 W. Va. 106, 1977 W. Va. LEXIS 324
CourtWest Virginia Supreme Court
DecidedDecember 20, 1977
DocketNo. 13929
StatusPublished
Cited by10 cases

This text of 240 S.E.2d 675 (Cowan v. County Commission of Logan County) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Cowan v. County Commission of Logan County, 240 S.E.2d 675, 161 W. Va. 106, 1977 W. Va. LEXIS 324 (W. Va. 1977).

Opinion

McGraw, Justice:

Charles Cowan and other freeholders of the Buffalo Creek area in Triadelphia District, Logan County, West Virginia filed on March 5, 1975, a petition with the County Commission1 of Logan County as the preliminary legal step under W.Va. Code, 8-2-3,2 to incorporate Buffa[108]*108lo Creek Valley as a Class III city. Their petition was rejected by the commission as not sufficient and, on resubmission and after an evidentiary hearing, it was dismissed for not meeting requirements of the law. They petitioned this Court for a writ of mandamus to require the commission to act on their petition, but, under Rule [109]*109XVIII of the Rules of Practice in the Supreme Court of Appeals, the prayer of their petition was denied without prejudice. They petitioned the Circuit Court of Logan County for a writ of mandamus to compel the commission to act on their incorporation petition, but that court sustained respondents’ demurrer and dismissed the mandamus action. Petitioners elected not to appeal the dismissal action of the lower court and again, on May 9, 1977, filed in this Court their petition for a writ of mandamus against the respondents, stating therein that “it is now clear that adequate relief in the Circuit Court of Logan County has been exhausted.”

The prayer of the petitioners follows:

WHEREFORE, petitioners pray that this Court issue against respondents a rule, returnable at such date as the Court may fix and determine, requiring respondents to show cause, if they can, why there should not be awarded a preemptory [sic] writ of mandamus in accordance herewith, and otherwise as the Court may deem proper; and that upon return of such rule there be awarded and issued a preemptory [sic] writ of mandamus commanding respondents to:
(1) Enter an Order stating (a) that the requirements of Chapter 8, Article 2, Sections 1 and 2 by the West Virginia Code, as amended, have been met by the documents attached hereto and previous submitted to them; (b) that the application of Amherst Coal Company, Island Creek Coal Company and Kelly-Hatfield Land Company, seeking to exclude certain of their properties from the area proposed to be incorporated, be denied, and (c) that a census be conducted and a general election be held on the question of incorporation pursuant to the provisions of Chapter 8, Article 2, Section 4 of the West Virginia Code, 1931, as amended; or in the alternative,
(2) Enter an Order stating (a) specifically and in detail which requirements of the aforesaid statutory provisions have not been met, and (b) that, if such specific and detailed requirements [110]*110are met, the respondents will thereupon order a census to be taken, the qualifications of electors to be determined and an election to be held and the results thereof ascertained pursuant to section 4 of the aforesaid statute, and
(3) Act in accordance with such other relief as the nature of this case requires and as this Court may deem just and proper.

On the petition, a rule to show cause was granted on May 16, 1977, and made returnable on June 14, 1977, when the cause was submitted for decision on briefs and arguments of counsel.

I. THE COUNTY COMMISSION

A brief review of the role a county commission plays in incorporation proceedings is in order. Statutes such as those in West Virginia which delegate to another body, such as the county commission, a role in the formation of political districts or municipal corporations have been subject to repeated constitutional attacks over the years for violating the constitutional limitation separating the powers of government. See Wiseman v. Calvert, 134 W. Va. 303, 59 S.E.2d 445 (1950); Annot., 69 A.L.R. 266 (1930). Many statutes have been struck down because they permitted a court “in its discretion,” or “if justice and equity require,” or “if [it] is of the opinion that the prayer of the petition should be granted,” to grant the relief prayed for. Lyon v. The City of Payette, 38 Idaho 705, 224 P. 793 (1924). The invalid statutes vested the tribunal with discretion as to whether the property should be incorporated, thus constituting an unconstitutional delegation of power. As stated in West v. West Virginia Fair Association, 97 W. Va. 10, 15, 125 S.E. 353, 355-56 (1924) and Wiseman v. Calvert, 134 W. Va. 303, 316, 59 S.E.2d 445, 453 (1950):

“It is very generally held that the legislative department of the government cannot delegate its power of legislation to either of the other coordinate branches of the government, but it may delegate the power to determine some fact or [111]*111state of things upon which it will make its own action or grant depend. The power to create municipalities cannot be delegated, but the Legislature may confer upon a court or some administrative officer or board the power to perform some judicial or ministerial act in the formation of such public corporation, or to ascertain and determine whether the conditions prescribed by the statute as to the formation of corporations and the granting of the charter has properly come into existence.”

This same idea was expressed several years earlier in Morris v. Taylor, 70 W. Va. 618, 622, 74 S.E. 872, 874 (1912):

“The legislature has granted that right [to form municipal corporations] to all of the people of the state, who put themselves within the conditions annexed. What the court determines is whether the people desiring to form such a corporation have put themselves within those conditions ... Having ascertained that, the court awards a certificate of incorporation, just as the secretary of state issues the certificate of incorporation to a joint stock company ... The court has no initiative. Its sole power is to veto ....”

The county commission, then, acts as an agency of the legislature performing a ministerial act in the formation of public corporations. When a petition by freeholders for incorporation of a city, town or village pursuant to W.Va. Code, 8-2-1 is filed with the county commission under W.Va. Code, 8-2-2, the petition is then set for hearing and a determination by the commission as to whether the requirements of §§ 1 and 2 have been met. If the requirements have not been met, the petition will be dismissed. If the requirements are met, proceedings must then go forward for posting bond, taking a census, conducting an election, and satisfying other statutory requirements for incorporation of the city. The purpose of the petition is to provide an orderly process for initiating an election to vindicate constitutional rights to local self-government.

[112]*112The Court is aware that W.Va. Code, 8-2-1 purports to vest discretion in the county commission to set the exact boundaries of the proposed municipality. We need not determine at this point whether that part of the statute violates the principles of separation of power discussed above. Any such exercise of discretion would have to be reasonably based upon and supported by the record.

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Cowan v. COUNTY COM'N OF LOGAN CTY.
240 S.E.2d 675 (West Virginia Supreme Court, 1977)

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Bluebook (online)
240 S.E.2d 675, 161 W. Va. 106, 1977 W. Va. LEXIS 324, Counsel Stack Legal Research, https://law.counselstack.com/opinion/cowan-v-county-commission-of-logan-county-wva-1977.