The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1895-09-20


suit involving the disputed strip oil
ground between Bauwood and Nc
AIechou, locally Designated as tho Cher
okss strip. The suit wal brought to
prevent the mayor aud sergeant OF Ben
wood from exercising jurisdiction over
that strip. Judge PAUL decides that
the charter Of BenwOod, which includes
that strip, il legal, and refuses tho in
junction. Tho decision rests on such a
sound basis that no appeal ia probable
Col. ArnOtt represented McAIcchon and
Caldwell & Caldwell took caro- Of the
interests OF Bsnwood in the natter
Tho suit lie q cause in chuncsry,
brought by J. n. Roby and othora
against Thomas Sheppard and others.
Judge Paull's opinion and decree is as
! follows;
This is Rsuit brought by the plaintiffs,
as citizens OF tho town OF McMochon, to
onjoiu tho mayor and sergeant oil the
city OF BonwOod from collecting taxes
assessed against them by tho said city.
On tho nth day OF February, 1880,
the town Of McMechen, which contains
a population OF less than two thousand,
obtained certificate OF incorporation
through tho circuit court Of Marshall
county, under the provisions OF chapter
AZ Of the code,
On the 22d Of February, 1895, the
legislature OF West Virginia paaaed an
act chapter SO OF tho Acts OF 1900
amending the charter Oi the city oil
Benwood and extending its corporate
limlts by aunexiug thereto tract OF
land, known as the "CheroEeo Strip"
which constituted a part Of the terri.
tory included within the boundaries oil
the town Of McAIechGn.
The plaintiffs claim that 20 much OF
this act as extends tho corporate limits
Of the city OF Benwood as Aforesaid, ls,
In effect, a special law amending tho
charter Of tho town OF McMechen, and
therefore void, as being in contllcs with
section 80 OF article 6 OF tho Conssitu'
ton, which declares that the legislature
shall not pass local or special laws in
cooperating cities. towns or Villages. or
amending the charter Of any city. town
or village containing population oil
less than two thousand; but that 1t
shall provide for the same by general
law. 7
In Hornbrook vs.. Town Of Elm Grove,
[2l S. Z, Rep, 051l, Judge Brannon in
delivering the opinion OF the court, on
page Sj4, says that the object OF this
constitutional provision twas to pre-
vent miltitudinous special acts creating
or amending municipal charters con-
Stunning the time oil the legislature"
In Elder V. inCorporators oil Central
City III S. Z Rep 1881, Judge Holt, in
speaking OF this came provision says:
"In 1872 the organization Of many parts
OF the state into municipal corporation
for the purpose oil local self govern
ment, had become q matter otfrequont
aud urgent necessity. The trainers oil
the constitution thought that this need
in the greA. majority OF cases could be
met more efficiently and impartially by
general law than by agreat multitude
OF special euactments,' aud hOnce the
adoption OF section 80 aforesaid.
II will thus be seen that the act under
consideration, which 10 an act to amend
the charter OF city containing popu'
latiou Of more, not less, than 1000, doeS
not come within the object, aud there.
fore does not give rise to any OF the evils
which il was the design Of this constl
rational provision to avert. Nor does IL
expressly amend, or in anymanner refer
to the charter or the town OF McMech'
on. Its indirect effect, 1t 10 true, is ia
detnch q portion oil the territory in
cludsd within tho corporate limits Of
McAI0Chen, and annex 1t 10 Benwood.
But that does not constitute an amend
mont to the charter OF McMechon, &c
cording to the natural aud ordinary
meaning OF the term; which, it must be
presumed, was the meaning employed
by tho iramera OF the constitution
| fCooley, Constitutional Limitations, 5Sl
Again, In l Beach, Pubic Curpor'
ations, section S9i 1t IL said: "Ihe
power to divide large municipalities, 10
anunl their old charters and to reoTgan'
izO them. and to consolidate small ones
as well as TO detaCh portions oil torri'
tory from ono and annex II to another
to moot the wishus oil its residents Or Ia
promote the public interests, as under
stood by il, is conceded to tho logisla'
lurO. This power is full in the absence
Of constitutional Testri ctien."
Now, In this state there Is an entire
absence Of any exprois constitutional
restriction upon tho powers OF the lcr'
| islninru over CitiCs, like BonWood, which
have been incorporated by a special
| law, aud which contain population OF
moro than two thousand; and section
80 aforesaid cannot, 4. seems to me,
when construct according to It's mani
io,t Spirit aud meaning, Lehman v,
McBrdgU, 10 Ohio Ut. b32l he held 10
impose any implied roalriclions upon
such powers
In MaCtdn vs.. county court IS W.
| Va, 1888. jiOl 1t Is siAd: "CourtB cannot
too often repeat what has boon no often
stated that 1t seems thrGadbaro-that
all courts. while thUy must dofcnd tho
constitution and tho rights OF tho poo
pic under 1t, oven against tho lcgisla'
iuru, yet in doing 80 ihOy must mov1
with tho most solemn caution, resolve
all douhlg In favor Of tho act, and uovor,
except whore the act Ia very plainly
aud prlpnbly M beyond doubt v,nin.
L.IU vi tno UUHsiGutiOn, overthrow An
act Of tho legislature"
For tho reasons above stated, | am Of
tho opinion that no portion Of tho act
amending tho charter Of tho city OF Bon.
wood Ia plainly, palphbly and beyond
doubt vIolalivO Of section 30 Of article q
Of tho constitution. am nlao Of tho
opinion that no portion OF this act IL
void by reason Of any conflict with SIC.
ton 30 Of article O Of tho constitution.
ICON. VA. BroWu, Va, q s. y. Ron. 3ti,
Sol, and state W. Mines, 3S W. Va, lgj,
1888