Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1895-09-20
IN IMPORTANT DECISION
Handed Down in the Circuit Court by
Judge PAUL, Yesterday,
In the Case Of the Dispute Between
the Towns Of Benwood and Nc
Mechen Over the Cherokee
Strip The Claims Of Benwood
Sustained.

wood-McMechen dispute over the piece
OF ground lying between the two towns,
known locally and among the legal pro
fession as the Cherokee Strip"
The title of the cause is J. n. Roby
and others V. Thomas Sheppard and
others, and the liugants were repre-
sented by Caldwell & Caldwell for the
Benwood interests, and Col. W. W. Ar
nett for McNiechen. The decision Of the
Court was in favor OF Benwood. The
opinion was as follows
This is suit brought by the plain
tiffs, as citizens of the town OF Nc
Mechen, TO en1oin the Mayor and Ser
geant of the city of BenwOOd from col
lecting taxes assessed against them
by said city.
"On the 18th day of February, 1895,
the town Of McMechen, which contains
a population OF less than TWO thousand,
obtained a certificate of Incorporation
through the Circuit Court OF Marshall,
under the provisions Of chapter II Of
the Code.
ION the 22d OF February, 1895, the
Legislature OF West Virginia, passed an
act tchapter 6S Of the Acts Of 1885
amending the charter OF the city Of Ben
wood and extending its corporate lin
| its by annexing thereto a tract OF land,
known as the Cherokee Strip" which
constituted part OF the territory in
Guided within the boundaries of the
town of McSfechen.
"The plaintffs' claim that 50 much
Of this act as extends the corporate I'm
It's OF the city OF BenwOOd as aforesaid,
is. IN effect, a special law amending the
charter Of the town Of NfcMechen. and
therefore void. as being n conflict with
section SO of article OF the constitu-
tfon, which declares that the Legisla-
ture shall not pass local OF special laws
in cooperating cities. towns or villages
or amending the charter Of any city.
town OF Village containing a population
Of less than two thousand: but that Il
shall provide for the same By general
law.
Tn Hornbrook Y. town Of Elm
Grove, p S. E. Rep. SOL. Judge Bran
non in delivering the opinion OF the
I Court, on page S54. SAYS that the OBJ
Ject OF this constitutional prOviso
was 20 prevent mulutudinous special
acts or amending municipal charters
consuming The time Of the Legislature.
In Elder Y. incorpOrators OF Central
City. y 5. z. Rep. 73S. Judge Hok. in
speaking OF this same provision SAYS:
In 1872 The organization Of many
parts Of the State intO municipal cor
Dorauons, FOR the purpose Of local self
government had become a matter OF
frequent and urgent necessity. The
trainers OF the constitution thought
that this need IN the great majority OF
cases could be met more efficiently and
impartially by general law than by a
great multitude Of special enactments.'
and hence the adoption OF section 90
aforesaid
1t Will thus be seen that the act IN
der consideration. which is an ACT 10
amend the charter Of a certain CITY
containing a population OF more. not
less. than two thousand. does not come
within the object, and therefore does
not give rise 10 any Of the evils which
II was the design Of this constitutional
provision 10 avert Nor does II ex-
pressly amend or In any manner refer
TO the charter OF the town OF McNecb-
en-. It's indirect effect. il is true is 10
detach portion OF the territory inclu-
ded within the corporate limits OF Nc
Mechen and annex il to Benwood. But
that does not constitute an amendment
OF the charter of McMechen. according
70 the natural and ordinary meaning
OF the term; which. II must be pre-
sumed was the meaning employed by
the trainers of the constitution; Cooley.
Constitutional Limitations No. IS.
Again, In ! Beach, Public Corpora
lions. sec. 397, it is said: The power
10 divide large municipalities, to an
nul their old charters and reorganize
them, and 70 consolidate small ones as
we'll as to detach portions Of territory
from one and annex II to another. TO
meet the wishes of its residents or to
promote the public interests, as under
stood By it, Is conceded to the Legis-
lature. This power is full II the alb
sence OF constitutional restriction
Now in this State there is an entire
absence Of any express constitutional
restriction upon the powers Of the Leg
islaure over cities, like Benwood
which have been incorporated by q
special law, and which contain q pop
ulatiOn of more than two thousand :
and section SO aforesaid cannot. il
seems TO me. when construed accord
ing TO its maifest spirit and meaning.
lehman '. McBridge, Is Ohio St 592)
be held 10 impose any implied restric-
lions upon such powers.
In Mackin V. County Court. So W.
Va. 33S, $40. il is said: Courts cannot
too often repeat. what has been so Of
ten stated that il seems threadbare-
that all courts, while they must defend
the constitution. and the rights of the
PEE pie under it, even against the Leg
islature, yet in so doing they must
move with the most solemn caution. re-
solve all doubts in favor OF the act. and
never except where the act is very
plainly and palpably, and beyond
doubt. yiOlative Of the constitution,
overthrow an act OF the legislature
For the reasons above stated, I am
Of the opinion that no portion of the
act amending the charter of the city Of
Benwood is plainly, palpably and be-
yond doubt violative OF section SO Of
article Of the constitution. I am also
OF the opinion that no portion OF this
act is void by reason of any conflict
with section 80 OF article Of the con-
stitution; Com. Y. Brown, (Va-) q S. E.
Rep. 357. 361, and State Y. Mines, IS
W. Va 125, 13S.
The constitutionality of the said