# Wiseman v. Calvert

> West Virginia Supreme Court · April 4, 1950 · 134 W. Va. 303

URL: https://www.frixlaw.com/law-library/cases/9540319

## Case

- **Full name:** H. W. Wiseman, Et Al. v. Carl Calvert, Et Al.
- **Court:** West Virginia Supreme Court
- **Decided:** April 4, 1950
- **Citations:** 134 W. Va. 303; 59 S.E.2d 445; 1950 W. Va. LEXIS 36
- **Precedential status:** Published
- **Opinion:** Dissent by GiveN
- **Judges:** Haymond, Given
- **Cited by:** 20 later opinions in the Frix Law Library

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## Opinion text

GiveN, Judge,
dissenting:
I agree that the writ should be denied for the reasons stated in point 4 of the syllabus, but I cannot agree that Chapter 83, Acts of the Legislature, 1949, to the extent that it applies to the incorporation of proposed municipalities, with a population in excess of two thousand, is unconstitutional, as violative of the Home Rule Amendment to the Constitution, Article VI, Section 39(a). The applicable parts of that Amendment read: “* * * The legislature shall provide by general laws for the incorporation and government of cities, towns and villages * * *. Under such general laws, the electors of each municipal corporation, wherein the population exceeds two thousand, shall have the power and authority to frame, adopt and amend the charter * * It will be noticed that this language does not require or compel the municipality to frame, adopt or amend its charter, but grants it the “power and authority” to do so. Nothing in the quoted language prevents the Legislature from establishing a charter for a municipality of. over two thousand unless and until the municipality elects to do so. On the contrary, the Legislature is required to provide by general laws for the government of all cities, towns and villages. The Legislature is also required by “general law” to provide for the incorporation of all municipalities,' whether of two thousand population or not, and there is merely preserved to any municipality of over two thousand population the right and authority to frame, adopt or amend its charter. Section 1, Article 2 of the Act of 1949, provides that: “Any part of any district * * * may be incorporated as a city, town or village * * *.” This includes a proposed municipality of over two thousand population, for Section 1, Article 1 of the Municipal Home Rule Law, enacted by the 1937 Legislature (now Chapter 8A of the Code) defines “city” as a municipality with a population in excess of two thousand. Section 11 of Ar- *327 tide 2 of the Act requires a county court, through its clerk, to issue a “certificate of incorporation” upon a finding by the court that the provisions relating to incorporation of municipalities have been complied with. Section 1 of Article 2 of the Home Rule Law reads: “The voters of any city may frame, adopt and amend the charter of a corporation in the manner provided by this article.” Other sections of that Article make full provision for the framing, adoption or amending of charters.
From these clear provisions, I am of the opinion that the “certificate of incorporation” required to be issued by the county court is not to be considered a municipal charter, but is mere authority to the corporation to organize and to frame its own charter if it so elects, and to be governed by general statutes relating to the government of such corporation until the adoption of a charter. If this construction be somewhat strained, it is, nevertheless, justified by the rule that: “Whenever reasonably possible, courts must so construe statutes as to save their constitutionality, * * 16 C.. J. S. Constitutional Law Section 98. “Every reasonable construction must be resorted to in order to save a statute from unconstitutionality.” State v. Massie, 95 W. Va. 233 , Pt. 3, 102 S. E. 514. I think this rule should apply with force here for the reason that many of those who assisted in the designing and adoption of the constitutional amendment (1935) also assisted in designing and enacting the Home Rule Law (1937), and amendments thereto.
Conceding for argument, however, that the certificate of incorporation amounts to a municipal charter, I do not believe that the act violates the Home Rule Amendment to the Constitution, since the amendment requires only that a municipal corporation of a population in excess of two thousand be permitted, if it so elects, to frame, adopt or amend its charter. This seems clear from the use of the words “electors of each municipal corporation”, since it would be impossible for there to be a municipal corporation before the incorporation had taken place, and since it would be impossible for there to be electors of a *328 municipality before incorporation. The language does not require such municipality to frame or adopt its own charter, but merely preserves to it such right and a municipality may elect or not elect to exercise that right. “A municipality in adopting a charter as authorized by the home rule provision of the constitution is merely exercising a permissive authority of local self government conferred on all municipalities, * * 62 C. J. S. Constitutional Law 116, citing State ex rel. Arey v. Sherrill, 142 Ohio St. 574 , 53 N. E. 2d 501 . See Morris v. Taylor, 70 W. Va. 618 , 74 S. E. 872 .
Being of the opinion that the statutes mentioned fully provide for the incorporation of any city containing a population in excess of two thousand, and that the right of any such city to frame, adopt or amend its charter is fully preserved to it, I respectfully dissent as to the third point of the syllabus.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9540319. Public record. Not legal advice.