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

unworthy Nl hll wv EbaluuNh NoNuln NONVA
Tor INCORPORATION, and that tho election
wa honestly aud fairly conducted.
THE court OF appeals, having held
the law 10 ba constitutional, regarded
lhs caap AZ oihnrRisa beyond us iuTis'
diction. judge Don't, in rendering tho
decision, Aays; Tao GiTcgit court, being
Ongaged in tho discharge Of q legislative
inRGlion, in all nl tha legislative depart
msnt Of tho state government, rho poll'
tIonOrs had no right 10 appear and con-
test Tho issuance oil tho certificate Of in
corporation ~ such = lnannor rs TO DO
made parties iIigaut in a judicial sonao,
any more than before u committees OF
tho legislature, No appeal is allowed
by statute, or authorized by tho con-
lliIution,'h
THE Elm GROVE CASE.
an the case OF H~orubrooli, ct al.,
against the town Of Elm Grove, tho
principal cau4p of tho trouble was tho
same; namely, That tho boundaries in.
Guided farming lands not benefited. But
the town had been incorporated for sew.
eral ysart before tue suit was brought.
ls buunlariai extended 80 far into tho
country that they included moro than
four acfos Of land TO each voter. The
tpwn had some roads End bridges with
IN It's borders which were expensive TO
maintain. The statute provides that
tho inhabitants OF = town which keeps
up lis own roads aud streets, shall DO
exempt from taxation by the county
authorities Tor road purposes, But in
Rim Grove the streets and roads, Except
tho sidewalks in the closely settled por.
ton Of tho tpWnl were kept up by the
county authorities, Whiio no i'm
proyemsnts were male by the town
in the farming portion Of its terri
tory. The farmers within the
town boundaries felt a2griovel by
the double taxation. Tho auit vas by
bill in equity in behalf Of all tax.
payars, to restrain tho collection OF
town taxes, relying In part uon the
suppoiod uuconstituttnnAlilY OF the Law
in imEOiilg Il legislative duty on the
circuit court, aud in part HReR the pre-,
visions OF section A Of chapter n Of
tho code, which declares EhAti
"'Apy city, town or village which
shall fail Tor ono year 10 keep its TOads,
streets, alleys, rideWalka aud CUTTERS IN
good order and %repair, or which shall
fail for ono year to GEOTcita its cnrnor.
ate powers and privileges. shatj theruby
forfeit ia charter. aud all tho rights,
powers and privileges conferred there
by
"An INJUNCTION was granted. on the
constitutional ground, by tho Same
court that had ia its lrglslativs capacity
granted the charter, bnt attorward,
when the town OF Union Mines case
had been decided, the satno court dis.
solved the Injunction, rs a matter Of
Coursr. 1t refused 10 enforce tho for.
feitnro OF tue charter, although the
town did not deny by its an
swer either tho charge that 1t
had failed 10 keep up its streets
for u year. or the charge that 1t did not
intand ~ keep them in repair in the lu'
lure, Tho town claimed that tho lor.
ieiiura could not; no enforced in a coll
lateral proceeding, and could DO on
torCsl, II 1T all. only hy tho atate.
From ,hc decision retu'ing to declare
tho c]liaripr forfeited M anpani was
ttkOn. In behalf oi tho appellants It
was argued that the language, shall
tlpcrnby forfeit its chatter" made the
statute seli.oporatiyo in a case in which
the fact which would require tho for
isiiuro was admitted.
1.-THE court Of appeals, por Brannon,
iudan, aud without dtas8Ht held that tho
forfeiture could not DO takon advantage
Of OF declared by u court Ia q collateral
procualIng. Tho charter can only DO
declared forfeited BY tho stale. Tho
Judge also iniimatcI tho opininu that
noiLlor quo warrant0, Instituted on be-.
hall Of tito state, nor any other judicial
procpss, los to forfeit tho char.
tor Oi q municipal corporation.
aud this, because the town ia u part OF
tho government iiBu,i, aud II lies only
with lhs legislature 10 tako away its
charter,
"1'ho towns can aud will do az they
please until tho general law shall DO 30
changed "a TO furnish indictuua TO-
siraining proyi9iuns, capable OF PracIlc'
able enforcement.
Tho provision In regard to forfeit
urO nj nhnttor seems to O1 peculiar TO
WOst Virginia. 1t 10 n useless pro.
vision because 1t IN not capable OF being
enforced, II II werO to DO enforced
with all tho vigor which tho tcfmg,
'slIall thereby forfeit its character
would SOON to implv, II would DO OYOn
.wotGe than useless, for tho relation NJ u
municipal corporation to tho state In
administering u portion oil tho work Of
tho blalp, IL Of such n character ~
ought not TO DO readily broken, II
ought not 10 be In tnu power ol tho
officers Of tho town-itl ATnntB by
more neglect OF duty to destroy the
functions ol tho town ~ an arm
Of tho itatc. Thoy 0houId not, w noe.
Loot NJ duty, obtain relief from tho poF'
Torrance Ot duty.
~ NAV Faa4pHably DO 0xpnoiel that
hO who dononnCet II law should bO pro-
parOd 10 prescribe u rnlnUdy. Tho
principal fault In our legislation on tlla
subject Bocma to DO tho giving " too
much power 10 tho peoples ynL II Ia
hardly Just, ]Or'cottocl, to so lDlln0 IT,
In this government " tho people, by
| tho people and tot tt0 ttodbie, Hli it8Waf
In In tho pnoplo, and tho yariUua doc
phftmuniR Of government ara mnfOlY
agents Of llin pnUnln. Constitutions,
national md state, nro charters from tho
| uo0plp, They contain tho limitations
Of llU powom delegated by tho
pconlc 10 tho different bttnchc,
N topnttmcnts OF governmental bat
ihoy also place cUnsltaints.- whole.
homo resttalnls-nnoh iho people theme
nplypa. n tnnnitn', everywhere, tho
application oi tho ro'irninlng power NJ
law, 10 protect man from tOO lulumgn'