CHARLESTON.

#### Elder *et al. v.*Incorporators of Central City.

Submitted January 15, 1895

Decided March 27, 1895.

Incorporation oe Municipalities — Constitutional Law.

Chapter 47 of the Code, in relation to- tihe incorporation of cities, towns, and villages, in so far as it0 confers on the circuit court functions in their nature judicial and administrative, although in furtherance of the po-wer of the legislative department of the state government, is constitutional and valid.

C. S. Weloii and Simms & Enslow for plaintiff in error,

cited 29 Mich. 451; 32 Minn. 540; Cooley Con. Lim. p. 137; Locke on Civil Government 142; 43 Iowa 252; 28 W. Ya. 289; 36 N. W. Rep. 813; 11 Ohio St. 99; 70 N. Y. 518; 14 Am. Rep. 312; 3 Am. & Eng. Cy. of Law, 698; 15 *Icl.*1003; Const. Art YI, sec. 39.

Geo. J. MoComas for defendants in error,

cited Const. Art. YI, sec. 39; 32 Minn. 543; Cooley Con. Lim. 77; 10 Col.' 553, 559; 13 Graft. 78; 8 Pa. St. 391, 395, 416; 25 W. Ya. 428; 11 Ohio St. 99; 8 Ohio St. 285; 28 W. Ya. 289.

Holt, Presideht :

The Circuit Court of Cabell county, on petition of J. S. Farr and others, by order entered on the 31st day of July, _■ P93, directed a certificate of incorporation to be issued of a pat i of C uyandotte district as a town by the name of Central City, from which order B. D. Elder and others obtained this' writ of error.

In 1872, the organization of many parts of the state into municipal corporations, for the purpose of local self-govern*223ment bad! become a matter of frequent and urgent necessity. Tbe framers of the constitution thought that this need in the great majority of cases could be met more efficiently and impartially by a general law than by a great multitude of special enactments; hence section thirty nine of article six of the constitution prescribes that the legislature shall not pass special laws incorporating cities, towns or villages, or amending the charter of any city, town or village, containing a population less than two thousand, but shall provide for the same by general law. Thereupon the legislature enacted chapter forty seven of the Code—see Code, p. 421 (Ed. 1891) — which provides that any part of any district or districts not included within any incorporated town, village, or city, and containing a resident population of not less than one hundred persons, and if it shall include within its boundaries a territory of not less than one quarter of one square-mile in extent, may be incorporated as a city, town, or village, under the provisions of this chapter. It then provides that an accurate survey and map shall be made of the territory; that a census of the resident population shall be taken;, public notice thereof be given that- application will be made to the Circuit Court for a certificate of incorporation; and that the question will be, at a named time and place, submitted to the vote of the qualified resident voters; and upon filing a proper certificate, and upon satisfactory proof that a majority of all the qualified voters residing within such boundary have voted in favor of such incorporation, and that all the provisions of the law have been complied with, the Circuit Court shall by an order entered of record direct the clerk of said court to issue a certificate of incorporation of such city, town, or village in form or in substance as follows (giving the form). The statute then proceeds to prescribe the various powers and duties of such municipal corporation.

This statute itself erects the local body of citizens into a municipal corporation upon their bringing themselves within its provisions and upon complying with its terms, all of which are specific and fixed therein (see Thomp. Corp. § 110 *et*seq.); and whether the facts thus required exist in the par*224ticular case the Circuit Court, after due notice to all concerned and an opportunity to be heard against the application, ascertains and determines. This is, at least, an administrative or *quasi*judicial function, which the Circuit Court may be authorized to perform. See latter clause of section twelve, article eight, Const.

This Court has already held the statute in question to be constitutional (see *In re town of Union Mines,*39 W. Va. 179 (19 S. E. Rep. 398); and, no other objection being made or discussed, the judgment complained of, ought to be affirmed, as a constitutional question is involved; but the majority of the court being of opinion that the matter is only administrative, and that this Court has no jurisdiction in a matter merely *quasi*judicial, the writ of error must be1 dismissed as improvidently awarded.