No. 33454 -
State of West Virginia ex rel. City of Charles Town v. The County Commission
of Jefferson County, a Public Body Corporate of the State of West Virginia;
and Frances B. Morgan, President and Member; Archibald M. S. Morgan, III,
Member; C. Dale Manuel, Member; James T. Sutkamp, Member; and
Gregory A. Corliss, Member; and Jennifer Maghan, Clerk, County
Commission of Jefferson County
Albright, Justice, concurring:
I concur in the result in this case, but write separately to state one qualification
to the majority opinion's conclusion that “[t]he county commission is required to enter the
annexation order when the municipality certifies that the annexation petition is sufficient.”
Slip Op. at 8.
The thrust of this statement is that the county commission's duties are wholly
and strictly ministerial and are defined by statute. The difficulty with this statement is that
it leaves the impression that the county commission must enter an annexation order even
when it contains findings that are wrong, and that the county commission has no option in
any circumstances to seek correction of an apparent error. I respectfully suggest that the
Constitution of West Virginia vests in this Court and in the circuit courts jurisdiction over
extraordinary remedies where no adequate remedy of law is available.
See W.Va. Const. art.
VIII, § 3 (“The supreme court of appeals shall have original jurisdiction of proceedings in
habeas corpus, mandamus, prohibition and certiorari.”); W.Va. Const. art. VIII, § 6
(“Circuit courts shall have original and general jurisdiction . . . of proceedings in habeas
corpus, mandamus, quo warranto, prohibition and certiorari . . . .”).
I respectfully submit that a public official charged with the performance of a
ministerial duty has the right to challenge whether or not the conditions precedent to the
performance of that duty have been met and, failing any other remedy at law, may invoke
the constitutional jurisdiction of the circuit courts and this Court by way of a writ of
certiorari to cause judicial review of the proceedings wherein the conditions precedent were
found to exist but there is doubt they in fact do exist.
In the instant case, the very statute at issue expressly provides one instance in
which certiorari may be invoked to review a determination made by a city council which is
a condition precedent to the city's adoption of an annexation ordinance. Specifically, the
statute provides:
The determination that the requisite number of
petitioners have filed the required petitions shall be reviewable
by the circuit court of the county in which the municipality or
the major portion of the territory thereof, including the area
proposed to be annexed is located, upon certiorari to the
governing body in accordance with the provisions of article
three [§§ 53-3-1 et seq.], chapter fifty-three of this code.
W.Va. Code § 8-6-4(c). Moreover, in the succeeding section of our municipal code,
providing for annexation by minor boundary adjustment by application, the county
commission is expressly granted both discretion and the right to seek judicial review. (See footnote 1)
When there is no alternative judicial remedy prescribed, extraordinary relief
through certiorari is clearly a means available to county commissions to seek review of
perceived facial errors or legal irregularities in municipal annexation proceedings leading
up to adoption of ordinances or applications. (See footnote 2) See Syl. Pt. 1, Reynolds Taxi Co. v. Hudson,
103 W.Va. 173, 136 S.E. 833 (1927) (“Certiorari is the appropriate process to review the
proceedings of bodies and officers acting in judicial or quasi-judicial capacity, where no
other remedy is provided.”); 14 Am.Jur.2d Certiorari §17 (use of writ of certiorari to correct
errors of law appearing on the record of a quasi-judicial proceeding or to inquire into
whether the actions of a public body were taken in accord with the essential requirements
of the law). See also Ashworth v. Hatcher, 98 W.Va. 323, 128 S.E. 93 (1924); Carroll
Hardwood Lumber Co. v. Kentucky River Hardwood Co., 94 W.Va. 392, 119 S.E. 162
(1923); Morgan v. Ohio River R.R., 39 W.Va. 17, 19 S.E. 588 (1894); Long v. Ohio River
R.R., 35 W.Va. 333, 13 S.E. 1010 (1891); Beasley v. Town of Beckley, 28 W.Va. 81 (1886); Poe v. Marion Mach. Works, 24 W.Va. 517 (1884); Meeks v. Windon, 10 W.Va. 180 (1877)
(all finding that certiorari lies when there is an error in justice and no other means of review
is prescribed).
I concur with the majority opinion in this case because the responses tendered
by the county commission related to the merits of the ordinance and not to errors involving
the conditions precedent to the adoption of the subject ordinance.
Footnote: 1