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

VEust w . ocioVA ny 1teb'HTnt AAupN
bard, With only Q fair representation OF
members present. A telegram from
Hon. John A, Hutchinson, Of Parkers,
burg, presenting his excuses for non,
attendance, was read.
The following additional new mem,
bers Were reported fayorably from the
committee on admission and election OF
memberat
]. Basal, C|larksburgi ], Randolph
Carmichael, Charlestoni ]. A. Holiday,
Monnday.lla.
Nj. William Erakine, Of Wheeling,
read his very interesting papsr on
Control OF Weat Virginia Municipal
Charters" In the course OF his talk
he referred TO the fact that no munic'
ipal legislation was passed by the West
Virginia legislature until 1858. Agood.
deal Of faith Is taken in the honest
motives OF the incorporates, The
various conditions that mpat be com,
piled with by the yoteFs before q
charter can DO taken out were
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 flo their pro.
tests. The Ohio and Pennsylvania
statutes on municipal corporations were
quoted and their advance over West
Ylrginia's shown. In West Virginia
the "promotera' scheme must 20
through in whole. not in part. The
Judge OF the circuit court may see that
the municipal scheme that comes before
him for ratification ia wrong and unjust,
hut II the pap0ra arc straight and regu.
lar he haa no recourse but to ratity. A
law on Changer OF boundaries" was
added, but Il on tho same level as the
original municipal law.
"lhefFst prominent cases, in q legal
aspect, arising under this law, were
the Point Pleasant cases, which went to
the supreme court OF appeals from
Mason county.
"The circuit court OF Mason county,
on September Q, 1885, entered an order,
In the form prescribed and commanded
by the legislature, approving and con.
tirming q 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, %afterward',
in each OF two suits against the town by
parties claiming to have been wronged
by that proceeding, entered oTders per.
petually enioining the collection by tho
town Of taxes from such parties, and.
setting aside tho 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
the authorities; holding that the act OF.
incorporating a town, or e%nlarging its
boundaries, Ia legislative in its charac.
ter, and not subject to judicial review.
l quote from tue opinion OF the court,
ss.r6ndered by Judge Brannon, in Davis
VS.. Point Pleasant, 80 W. Va. Rep. $50,
Speaking OF tho order entered by the
circuit court enlurging the boundaries
OF the town, he says:
"'lhe court is required TO enter that
order. Nothing further is required OF
it by the statute. 1thas but to see that
the certificate from the council ia'such
as the, statute requires, to enable 1t to
embody in i.s order the matter required
by lts statutory form. The specification
by the statute Of a particular order ON.
bodying particular matter makes such
order, all.sulicient, and dlspenses with
the necessity that the order should
show on Its face the population OF tho
town, even II other wise the court would
be required in its order to show such
fact. The action OF the circuit court is
purely ministerial, and in a line specified
by the statute, and az parie.'
NOTHING DONE,
"What has tho legislature done to
remedy the evil? Nothing. 1t ia not
surprising therefore, that in different
parts of tho state other efforts should
be made to obtain relief through
the courts. Two OF such cases have
been decided In the supreme court oil
anpoals. In the case in tho town OF
Union Mines, in Kanawha county, the
parties claiming to be wronged up.
peared before the circuit court TO con.
test the right Of the 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 tho court OF appeals,
in the Point Pleasant case, evidently
concluded that no person had q right
to be heard in opposition to the appli.
cation, and in its order deciding The
matter, says expressly that it 'refuSed
to allow said parties TO appear to said
proceeding However, 1t allowed than
a bill OF exceptions, by mean tt 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 II re-
Quires tho court to perform n legis.
lative function, whoroas article b OF tho
constitution OF tho state says:
'"rho legislative. executive and Judi.
cial departments shall be separate aud
distinct, so that neither shall oxerciie
the powers properly belonging to either
ofthe Others"
"Thc court Of appeal. however, willis
admitting that the part which tho cir.
cult court ia called upon to perform Is a
legislative function, holds that IL Is i'm.
possible to ko0p the several branches
legislative, executive and judicial
ideally distinct, and that tho law IL
constitutional and valid.
Another point rolled upon by tho
DIRECTORS in that caao was that IL did
not appear before the circuit court that
n majority Of all tho qualified votorg 70.
siding within the boundaries voted In
favor OF Incorporation, rs required BY
tho statute, but tho court Of appoRlI
would not review thOs question. Tho
counsel, in their brief, pressed vlgor.