The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1895-11-01

kuhtEQl VI WdAh IlNSbuAN FAuA|SApAl
Oharters." In the course OF his talk
he referred to the fact that no munie'
ipal legislation was passed by the West
Virginia Legislature until 1893, Agood
deal OF faith is taken in the honest
motives OF tho incorporates, The
various conditions that muat be com,
piled with by the voters before q
charter can be taken out wore
named. No provision 10 made for
protests by anyone within the
boundaries OF the proposed town,
who do not wish TO be included in the
municipality. In other states dis
satisfied persons eau appear before
county commissioners and file their pro.
tests. The Ohio and Pennsylvania
statutes on municipal corporations were
quoted and their advance over West
VirginiR's shown. In West Virginia
the "Promolers' scheme must go
through in whole, not in part, The
Judge OF tile circuit court may see that
the municipal scheme that comes before
him for ratification is wrong and unjust,
but II the papOra Nre straight and regu'
lar he has no recourse but to ratily, A
law on "chaagsq 0f boundaries" vas
added, but IL on tho same level as the
original municipal law.
"Ihe first prominent cases, in a legal
aspect, arising under this law, were
the Point Pleasant cases. which went to
the supreme court Of Rppeala from
Mason county.
''The circuit court OF Mason county,
on September Q, 1885, entered IN order.
in the form prescribed and commanded
by the legislature, approving and con-
tirming a change in the corporate limits
OF the town OF Point Pleasant. What
inward protest or mental reservations
the Judge may have INDUCED in at tho
time OF entering that order / do not
know, but the same court, atterward',
in each Of two suits against the town by
parties claiming to have been wronged
by that proceeding, entered orderd per.
petuatty enioining the collection by tho
town Of taxes from such parties, and
setting aside the former order by
which the boundaries OF the town
we're enlarged, From both DEGREES the
town appealed. The supreme court Of
appeals reviewed the authorities upon
the subject, and with evident reluctance.
kept in line with the great majority OF
tho authorities; holding that the act OF
incorporating a town, or %enlarging its
boundaries, is legislative in ita charac'
ter, and not subject to judicial review.
| quote from the opinion OF the court,
a~s,rendered by Judge Brannon, in Davis
VS.. Point Pleasant, 80 W. Va. Rep, $50,
Speaking OF tho order entered by tue
circuit court etiiaFging the boundaries
OF the town, he says:
"'lhe court IL required 10 entor that
order. Nothing further is required Of
it by the statute. Ithas but to see that
the certificate from the council Is such
as the statute requires, to enable 1t TO
embody in it's order the matter required
by lite statutory form. The specification
By the statute Of a particular order om'
bodying particular matter makes such
order, all.suliClent, and %dispenses with
the necessity that the order should
show on its face the population Of tho
town, even If otherwise the court would
DO required in its order to show such
fact. The action OF the circuit court Is
purely ministerial, and in line specified
by the statute, and &c parte.'
NOTHING DONE.
"What has tho legislature done to
remedy tho evil2 Nothing. 1t ia not
surprising therefore, that in different
parts OF tho state other eEoEts should
be made to obtain relief through
the courts. Two Of such cases have
been decided in the supreme court oil
appeals. In the case in tho town Of
Union Mines, in Kauawha county, the
parties claiming to be wronged mp
peared before the circuit court to con
test the right OF tho applicants to OBJ
tain the certificate OF Incorporation
The court, in obedience to the mandate
OF tho legislature, aud in conformity
with the opinion Of the court Of appeals,
in the Point Pleasant case, evidently
concluded that no person had q right
to DO heard in opposition to tho appll'
cation, aud in its order deciding tho
matter, saya expressly that it REFUSED
to allow said parties TO appear to said
proceeding However, it allowed than
q bill Of exceptions, by mean Of which
the case was considered IN the court OF
appeals. Tho directors claimed that
the act which imposes upon tho circuit
court the duty OF issuing tho certificate
Of incorporation is void because IT re-
quires tho court to perform n logi'.
latiyO function, whereas article b OF tho
constitution OF tho state says!
''rho legislative. executive md Judi.
cial departments shall be separate 0nl
distinct, so that neither shall oxorctie
the powers properly belonging to eithor
OF the Others"
"Tho court OF appeal, however, while
admitting that tho part which tho cir.
cult court ia called upon TO perform IL a
legislative function, holds that IL Is im.
possible to kOOp the several branchOI--
legislative, executive and Judicial
ideally distinct, and that tho law Is
constitutional and valid.
"Anothur point rolled upon by tho
objocLors in that caao was that II did
not appear before tho circuit court that
u majority Of all tho qualified votOra rO'
aidtng within the boundaries voted in
favor OF Incorporation, as required BY
tho statute, but tho court OF appeals
would not review thOt question. Tho
counsel, in their brief, pressed Vigor.
ously for tho exercise oil juriSdiCtion by
tho court Of appeals. in review upon that
question. Speaking OF tho atatutc,
they say:
"fUndor this law, according to
tho within OF caprice OF tho parties,
II Ia pOSBiblG to select u strip Of
territory Of any width, extending tho
0ntitD length Of ono or moro counties,
and incorporate II, provided you takO
In no part Of any Incorporated city,
town or village, aud have a resident
population Of one hundred, togCthgr
with AZ least O%nO'quarlOr of ono square
milo Of land. This strip may DO atrNight,
! crooked or circular. IL may OXlOhd