Booten v. Pinson , 77 W. Va. 412 ( 1915 )

Williams, Judge:

Two of these proceedings are in mandamus, one of which has for its object the admission of Orland H. Booten to the office of mayor of the city of Williamson and incidental ouster of A. C. Pinson who now occupies it, on the ground of title thereto in Booten and lack of such title in Pinson; and the other, the admission of Gail T. Dudgeon to the office of clerk of said city and ouster of John S. Hall who holds the same office under the name of recorder. The other three proceedings are in equity, one by Pinson to enjoin the defendants from interference with his office, until the question of title can be settled, another by Nunemaker and five others, councilmen of the city, to restrain Booten and others, commissioners appointed under an act of the legislature to take over the management of the city, from interfering with them until the validity of the act can be determined, and the third by Hall to enjoin Booten and others, commissioners, from interfering with his office of recorder, pending the litigation in the mandamus cases.

Prior to the 1st day of July, 1915, the city of Williamson was governed by a council consisting of six members, a mayor and a recorder. By an act of the legislature, passed at the regular session thereof in 1915, the charter under which the city was so organized and governed was amended and reenacted so as to provide for government thereof, on and after the 1st day of July, 1915, by five commissioners. The new scheme of government is bi-partisan in character. The terms of the office of the commissioners are two years. Not more than three of them can be members, of the same political party; and the governor was authorized to appoint them, for the first term of two .years, beginning on the 1st day of July, 1915, and ending on the 30th day of June, 1917. Thereafter the commissioners are to be eleetéd every two years. Respondents in the mandamus proceedings had been elected under the old charter for terms of two years, beginning on the 1st day of May, 1915, and ending on the 30th day of April, 1917; and the new charter provided that those in office at the time of its passage (which was held, in State ex rel. v. Pinson, Mayor et al., 76 W. Va. 572, to mean the time the act took effect) should hold until the 1st day of July, 1915. Under the new act, the governor appointed Booten, Dudgeon, Studebaker, Green and Cooper commissioners and, agreeably to a provision of the act, they elected Booten mayor and Dudgeon city clerk. Pinson, mayor, and Hall, recorder, denying the constitutionality of the act, legislating them out of office, and under which the governor had made his appointments, refused, after the 30th day of June, 1915, to vacate the offices held by them and to permit Booten and Dudgeon to take them. Thereupon Booten and Dudgeon instituted their respective proceedings in mandamus for their admission into these two offices, and Pinson brought his suit in equity against Booten and the commissioners to restrain them from interfering with his possession, pending the proceedings in mandamus. Hall took like action against interference with his possession and Nunemaker and his associate couneilmen took the same method for maintaining their positions. The circuit court heard all of the proceedings at one time and, being of the opinion that the act under which the commissioners were appointed was valid, awarded the writs of mandamus and dissolved the injunctions, in so far as they related to or affected Booten and Dudgeon, but left them in force as to Studebaker, Green and Cooper, the three commissioners who had taken no steps to obtain possession of the offices to which they had been appointed. Writs of error in the law proceedings and appeals in the chancery causes have brought the judgments and decrees here for reversal.

All of the defenses in the mandamus proceedings, inappropriateness of the remedy, lack of an averment of eligibility of the plaintiffs and invalidity of the act under which they were appointed, were interposed by ’motions to quash the writs.

It is admitted that, if respondents are in possession of the offices without any color or right, mandamus is the proper remedy to admit thereto the rightful claimants, under the authority of Bridges v. Shallcross, 6 W. Va. 562, Kline v. McKelvey, 57 W. Va. 30, and Schmulbach v. Speidel, 50 W. Va. 553. Whatever may be the remedy in other states, the eases above cited settle the rule in this state that, mandamus lies to admit to office the rightful claimant thereof, the only condition being that relator must show a ‘‘ clear, prima facie right thereto shown by a commission, certificate or other legal evidence thereof.” Kline v. McKelvey, supra. Counsel seek to distinguish the case at bhr from those cited, on the ground that relators have not shown such clear, prima facie right as is required. Whether they have or not, depends upon whether the act amending the charter of Williamson is constitutional. If it is, then the governor’s commissions prove relators’ rights to the offices and likewise show that respondents are holding without color of right. The question is one of law and not of fact; and it can not be said, because the legal question is a difficult one, the prima facie right does not appear. The court must determine whether or not the act is valid in order to determine whether respondents have such title as will justify the issuance of the writ; and a decision of that question of law determines at once the rights of both sets of claimants.

Complaint is made that the act robs respondents of the greater portions of the terms of office for which they were lawfully elected. The law recognizes no such thing as a vested right in a political office, created by the legislature; hence, the cutting short of their terms violates no personal rights. If respondents have any rights they are political, not personal, and are subject to the legislative will. True respondents were elected for terms which were to expire April 30, 1917, but their election was had under the old charter which is abrogated by the new one, if it is constitutional, providing for a new form of city government by a different class of municipal officers.

It is further urged that the motion to quash the alternative writ should have been sustained on the ground that eligibility of relators is not averred. Secs. 6 and 10 of the act are as follows:

(6) “No person shall be eligible to the office of commissioner unless at the time of his election he is legally entitled to vote in the city election for member of the commission, and was for the preceding year assessed with taxes upon real or personal property within the said city of the assessed value of two' hundred dollars, and shall actually have paid the taxes so assessed. ’ ’

(10) “It shall be the duty of the governor, on or before the first Thursday in June, one thousand nine hundred and fifteen, to appoint for said city five commissioners, not more than three of whom to be selected from the same political party.and having the qualifications herein prescribed, whose term of office shall begin on the first day of July, one thousand nine hundred and fifteen, and continue until June thirty, one thousand nine hundred and seventeen and until their sue-eessors are elected and qualified as prescribed by law. ’ ’

The alternative writ does not expressly allege that relators possessed the required qualifications. It does allege, however, that the governor “did on the 2nd day of June, 1915, pursuant to said Act, appoint the five following commissioners for the City of Williamson,” naming relators. Their eligibility may properly be inferred from the governor’s appointment. It will be presumed that official action has been properly performed; and, eligibility being a question to be determined by the governor before exercising the power of appointment, it will be presumed that he appointed eligible persons. 16 Cyc. 1077; 9 Enc. of Evi., 944; Lawson on Presumptive Evidence, 67; Throop on Public Officers, Sec. 19; Robinett v. Preston’s Heirs, 4 Grat. 141. “A public officer is presumed. to have done his duty until the contrary is shown.” Winslow v. Beal et al., 6 Call 45. In view of this legal presumption, the question of eligibility can not be raised by motion to quash or demurrer. The two cases from Kentucky, cited by counsel, although more nearly in point than any others to which our attention has been called, do not support their contention. They are. Justices of Jefferson Co. v. Clark, 1 T. B. Mon 82, and Justices of Spencer Co. v. Harcourt, 4 B. Mon. 499. In the former case Clark’s eligibility was raised by the return to the alternative writ of mandamus, and in the latter case the rule issued against Harcourt to appear and show cause why his seat should not be declared vacant, called his attention to the fact that made him ineligible, and, in his answer to the rule, he admitted it. In neither of those cases was the question of eligibility raised by demurrer or motion to quash.

It is strenuously urged by the learned counsel for plaintiffs in error that the act is in contravention of both the letter and the spirit of our Constitution and is, therefore, void; and many of the provisions of the Constitution are cited, and Sec. 9, Art. X, is particularly relied on, as imposing restrictions upon the legislature respecting its control over municipalities. It is claimed that the legislature exceeded its constitutional powers when it undertook to provide for the appointment of the municipal officers of the city of Williamson, without the consent of its citizens. First, let us inquire if the Constitution does actually contain any express limitations in that respect. Sec. 9, Art. X, the provision on which the greatest reliance is placed, is as follows: “The Legislature may, by law, authorize the corporate authorities of cities, towns and villages; for corporate purposes, to assess and collect taxes; but such taxes shall be uniform, with respect to persons and property within the jurisdiction of the authority imposing the same. ’ ’

We observe that this section does not provide who shall constitute the corporate authorities, nor how they shall be brought into being, whether by appointment or by election. - It was intended to confine the right of taxation to the corporate authorities, and to limit their power to levy taxes for corporate purposes only. It is not a limitation upon the power of the legislature to prescribe the number and official character of the municipal authorities, and the manner in which they shall be chosen.

It is claimed that Sec. 9, Art. X, of our Constitution is modeled after a similar clause in the constitution of Illinois, and that, under the authority of Winans v. Winans, 22 W. Va. 678, and Brannon v. County Court, 33 W. Va. 789, we also adopted the construction previously placed on it by the supreme court of Illinois; and numerous decisions are cited from that state in support of the proposition that, by the phrase “corporate authorities”,, is meant officers who are either directly elected by the people, or appointed by some mode to which they have given their assent. From a careful examination of the cases cited, it will be seen that the courts’ decisions did not rest upon a construction of that particular provision standing alone, but was derived from a consideration of the spirit of the entire instrument as indicated by other provisions read in connection with the one from which our Sec. 9, Art. X, is taken. One of the earliest cases to which we are cited is People ex rel. v. Mayor, etc., City of Chicago, 51 Ill. 17, decided in 1869. By an act approved February 18, 1869, the legislature designated certain lands in North Chicago and Lake Yiew to be acquired and used for a public park, to be known as Lincoln Park. The park was placed under the exclusive control and management of a board of commissioners, who were authorized to purchase the lands within the boundaries prescribed by the act, and have the title thereto conveyed to the city. The lands were to be paid for with funds to be derived from bonds of the city of Chicago, which act required the mayor, comptroller and cleric of said city to issue and deliver to the park commissioners from time to time, as they should demand. The mayor, comptroller and clerk refused to issue the bonds, and the commissioners sought to compel them to do so by mandamus. The ease was decided upon a demurrer to the alternative writ raising the constitutionality of the act. The court held the park commissioners were not the corporate authorities within the meaning of section 5, article 9, of the Illinois constitution, that while the act did not expressly confer upon the commissioners the power to levy and collect taxes, it did so indirectly, by authorizing them to create a debt for which the city was made liable and compelled to pay. The court, in its opinion, considered other provisions of the constitution, particularly section 37, article 3, prohibiting the state from creating a debt exceeding $50,000.00, without the consent of the people, to be manifested by a vote at a general election. The act authorized the creation of a debt on the city of Chicago, more than ten times the amount the legislature could place upon the people of the state, without their assent expressed by a vote. Breece, C. J:, in the opinion, page 34, referring to the section last cited, says it ought to “settle the question beyond all controversy.” He further says, page 36: “The legislature in imposing this burden upon the city of Chicago, assumed a power which the constitution of the State, in its spirit and true meaning, inhibited them from exercising.” We do not see how the case eould have been otherwise properly decided. Everyone must admit that the park commissioners were not the “corporate authorities” of Chicago, within the meaning of section 5, article 9, of the Illinois constitution, and that the, effect of the act was to violate that provision. That case has been followed in numerous other decisions in that state. In Lovington v. Wider, 53 Ill. 302, it appears that the legislature, in 1867, passed an act establishing a police for the city of East St. Louis, providing for the appointment, by the governor, of three police commissioners who were to control the police department of the city. They were authorized to make annual estimates to the city council, of the money necessary for the maintenance of their department, and, in case the council failed to appropriate the money according to their estimates, they were authorized to issue certificates of indebtedness in the name of the city, which were receivable in payment of city taxes; and, by an amendatory act, these certificates were convertible into city bonds, on the demand of the holder. The court held this act to be in violation of section 5, article 9, of the constitution of 1848, a - similar provision to Sec. 9, Art. X, of our Constitution. The city of East St. Louis being already supplied with a mayor and common council, the similarity between the two cases is easily discernible. But the court there laid down the following proposition, viz.: “By corporate authorities, as used in this clause of the constitution, must be understood those municipal officers who are either directly elected by the people of the municipality, or appointed in some mode to which they have given their assent,” citing People ex rel. McCagg v. Mayor of Chicago, 51 Ill. 17, and other cases. It thus appears .that the court’s definition of “corporate authorities” and of how they shall be brought into being, is not derived from a construction of the single provision in the Illinois constitution from which Sec. 9, Art. X, of our Constitution is taken, but is derived from the spirit and tenor of their constitution, construed in its entirety. Hence, it can not be said that, because we adopted Sec. 9, Art. X, from the constitution of Illinois, we thereby adopted the construction which the courts of that state placed on it. Standing alone and unaided by other provisions indicating a purpose to place restraints upon the legislature respecting its power over municipalities, Sec. 9, Art. X, could not properly be given the construction contended for without resorting to unwarranted implications. Restraints upon legislative powers are not to be lightly inferred.

Municipalities derive all their power as well as their existence from the legislature, and, in the absence of any express constitutional reservations in their favor or express limitations upon the legislative control over them, they can exercise only such powers as are directly conferred by their charters'. One of the most, essential powers of government is the right to raise revenue; no government could maintain itself without such power. Yet it must be admitted that municipalities have no right to levy taxes, unless the authority to do so is expressly conferred by the legislature, or is necessarily implied from some other power expressly given, which can not be exercised without the right to levy a tax. As, for instance, the power to issue bonds with no express provision as to how they shall be paid. 5 McQuillin, Sec. 2363; 4 Dillon, (5th ed.), Secs. 1377 to 1380. The taxing power belongs alone to sovereignty. No such power inheres in municipal corporations. It is needless to cite authorities to support a principle so universally recognized as this. But, for a fuller discussion of it, see Passenger Ry. Co. v. Pittsburg, 226 Pa. 419, and City of Richmond v. Daniel, 14 Grat. 385.

Municipalities are but political subdivisions of the state, created by the legislature for purposes of governmental convenience, deriving not only some, but all of their powers from the legislature. They are mere creatures of the legislature, exercising certain delegated governmental functions which the legislature may revoke at will. In fact, public policy forbids the irrevocable dedication of governmental powers. The power to create implies the power to destroy. Furthermore, the legislature may incorporate a city of more than two thousand inhabitants even against the will of the inhabitants. Consent or acceptance is not required as formerly, when charters were granted by the crown. It may also, without the consent of a city, change its form of government, determine the number and character of its officers, and define their powers and duties. It may even prescribe the mode of procedure to be' observed in passing its ordinances. City of Moundsville v. Yost, 75 W. Va. 224, 83 S. E. 910. It may prescribe a different qualification for municipal officers than is required off state officers. State v. McAllister, 38 W. Va. 485; Kahle v. Peters, 64 W. Va. 400; and McMillin v. Neely, 66 W. Va. 496. In the absence of any express constitutional restriction, it may also prescribe the qualification of municipal electors. 2 McQuillin, See. 413; 1 Dillon, Secs. 59 and 371; 15 Cye. 296; State ex rel. v. Dillon, 32 Fla. 545; Wheeler v. Brady, 15 Kan, 26; State v. Peacock, 15 Neb. 442; Belles v. Burr, 76 Mich. 1; Mayor, etc. v. Shattuck, 19 Col. 104; and Plummer v. Yost, 144 Ill. 68. “The right to voté is not an inherent or absolute right generally reserved in bills of rights, but its possession is dependent upon constitutional or statutory grant. Subject to the limitations contained in the Federal Constitution such right is under the control of the sovereign power of the State, and where the Constitution has conferred the right and prescribed the qualifications of electors, the Legislature can not change or add to them in any way; but where the Constitution does not confer the right to vote or prescribe the qualifications of voters, it is competent for the Legislature, as the representative of the law-making power of the State, to do so. ’ ’ State ex rel. Dillon, supra.

In his opinion, in Burch v. Hardwicke, 30 Grat. 24, Judge Staples says: “They (municipalities)’ are instrumentalities of the government acting under delegated powers, subject to the control of the legislature, except so far as may be otherwise expressly provided by the constitution. ’ ’ Note the word “expressly”.

In Hornbrook v. Town of Elm Grove, 40 W. Va., at page 549, Judge BRANNON, in the opinion, quotes with approval from the opinion of Justice Field in Meriwether v. Garrett, 102 U. S. 511, the following: “Municipal corporations are mere instrumentalities of the state for the more convenient administration of local government. Their powers are such as the legislature may confer, and these may be enlarged, abridged or entirely withdrawn at its pleasure. This is common learning, found in all adjudications on the subject of municipal bodies, and repeated by text writers. There is no contract between the state and the public that the charter of a city shall not be at all times subject to legislative control.”

In view of these vast powers which, it must be admitted, the legislature may exercise in the control over municipalities, unless expressly restrained by the Constitution, how can it be logiealy said that municipalities have inherent rights? Can it be possible for inherent rights to exist, which may not be enjoyed except at the will of some authority other than those who claim the rights ? The rights contended for can not be enjoyed in any manner without the legislative will. To say that municipalities have inherent political rights, and at the same time admit that all their powers are delegated by the legislature, is a contradiction in terms. The principle contended for seems to be both illogical and paradoxical.

We look to the Constitution to ascertain what restraints, if any, the people have placed upon the legislature, not to determine what powers they have conferred, for, under our republican form of government, the legislature possesses tho sole power to make laws, and it is, necessarily, invested with all the sovereign power of the people, within its sphere. Nothing that is a proper subject of legislation is withheld by implication.

Counsel cite Sec. 4, Art. IV; Sec. 39, Art. VI; and Secs. 6, 7, 8 and 9, Art. 'X, of the Constitution; as recognizing the right of local self-government. We have already considered Sec. 9, Art. X, which we think is the only one among those cited that can have any possible bearing on the question. A mere perusal of the others will show they are not in point. We find in the Constitution no express provision .restricting the legislative power to regulate and control municipal governments in cities containing a population of more than two thousand, and the only manner in which its power over smaller towns is qualified is, that it can not incorporate such towns or amend their charters, except by general laws. But it is insisted that, even though-the Constitution contains no express inhibition upon the legislative power over municipalities, the right of local self-government must be inferred; that such right is inherent in the people of every community; that when oür forefathers came to this country they brought this principle with them; that forms of local self-government existed before written constitutions; and that, in the adoption of state constitutions, it was never intended by the people that they were surrendering to the legislature the right of local self-government. A few of the states have held such principle to exist, notably Michigan, Indiana and Kentucky. One of the leading eases, so holding, is People v. Hurlbut, 24 Mich. 44, decided in 1871. In that ease all of the judges filed opinions. It was a quo warranto proceeding to test the right of certain persons to hold office as water and sewer commissioners for the city of Detroit, which they were holding by virtue of an act of the legislature, passed in 1871, creating said board of commissioners, and appointing the members thereof to office, to hold for terms of two, four, six and eight years, respectively. The constitutionality of the act was assailed on two grounds, (1) that by the constitution of the state the right of appointment to local office was given to the executive department, and not to the legislature, and (2) that the appointment contravened the right of local self-government. The extreme views there expressed by Judge Cooley, respecting the socalled right of local self-government, were not necessary to a decision of the case, and are clearly against the great weight of American authorities. To what extent that distinguished jurist may have been influenced by the express provisions of his own state constitution, it is hard to determine from reading his opinion; but that he was in fact influenced to some extent thereby, is shoAvn by the following quotation from page 109 of the report. Pie says: “But I think that, so far as is important to a decision of the case before us, there is an express recognition of the right of local authority by the constitution. That instrument provides (Art. XY, Sec. 14) that ‘judicial officers of cities and villages shall be elected; and all other officers shall be elected or appointed, at such time and in such manner as the legislature may direct. ’ It is conceded that all elections must, under this section, be by the electors of the municipality. But it is to be observed that there is no express declaration to that effect to be found in the constitution; and it may well be asked what there is to localize the elections any moré than the appointments. The answer must be, that in examining the whole instrument a general intent is found pervading it, which clearly indicates that these elections are to be by the local voters, and not by the legislature, or by the people of a larger territory than that immediately concerned. I think also that when the constitution is examined in the light of previous and contemporaneous history, the like general intent requires, in language equally clear, and imperative, that the choice of the other corporate officers, shall be made in some form, either directly or indirectly, by the corporators themselves. ’ ’

The supreme court of Indiana, in State ex rel. Jameson v. Denny, mayor, 118 Ind. 382, asserted the same doctrine, and quoted with approval from the opinion of Judge Cooley. But the dissenting opinion, filed in that case by Justice Mitchell, we think, expresses the correct principle. At page 411, he says: “The Constitution has erected no standard by which to determine what constitutes local self-government, or what are natural and inherent rights, as those terms relate to municipal government. These are questions of political, and, therefore, of exclusively legislative concern, with which other departments can not interfere without invading the legislative domain.”

As likewise sustaining the doctrine of local self-government, see City of Lexington v. Thompson, 113 Ky. 540. But these cases, as well as a few others that may be found, are unquestionably against the great weight of judicial decision in this country, and are unsound in principle. Judge Dillon, a distinguished judge, as well as teacher and writer of law, and of whose great work on municipal corporations it was said by the American Bar Association, in a resolution, passed at its annual meeting in 1909] accepting the author’s dedication of his fifth edition, “ITis great work on municipal corporations will live after many of the municipal corporations themselves shall have perished,” sáys, Vol. 1, See. 98: “It must now be conceded that the great weight of authority denies in toto the existence, in the absence of special constitutional provisions, of any inherent right of local self-government which is beyond legislative control. ’ ’

In discussing the powers of the legislature, in that most excellent work of his, Constitutional Limitations, page 126, (6th ed.) Judge Cooley himself declares the true principle. He there lays down the following, as one of the fundamental rules by which to measure the extent of legislative authority in the state: “In creating a legislative department and conferring upon it the legislative power, the people must be understood to have conferred the full and complete power as it rests in, and may be exercised by, the sovereign power of any country, subject only to such restrictions as they may have seen fit to impose, and to the limitations which are contained in the Constitution of the United States. The 'legislative department is not made a special agency for the exercise of specifically defined legislative powers, but is intrusted with the general authority to make laws at discretion. ’ ’

Nothing, that is a proper subject for legislation, can properly be said to have been reserved to the people by implication. The Constitution passed all sovereign power not expressly retained or guaranteed by the constitution of the United States.

•We have carefully examined many of the decisions bearing on this most interesting topic, and will now quote from some of the cases denying the doctrine of implied reservation of local self-government.

In Mayor and Council of Americus v. Perry et al., 114 Ga. 871, 878, speaking for the court, Justice Cobbs says: “There is not in the constitution of this State any express guaranty of local self-government for municipal corporations. There is nothing in the constitution from which this right can be legitimately inferred. How far a community shall be allowed to control its own affairs is left to the judgment and discretion of the General Assembly.” He also quotes approvingly from the dissenting opinion of Justice Mitchel, in State ex rel. v. Denny, supra.

The legislature of Texas passed an act reehartering the city of Galveston, changing its form of government, providing for a government by a commission consisting of five members, as in the case at bar, and further provided that two of them should be elected by the voters of the city, and three should be appointed by the governor. The act was assailed as unconstitutional, on the ground that it denied to the people of Galveston the right of self-government. The supreme court of that state upheld the act, and in its opinion declares that no right of local self-government, based on history or tradition, exists in a city, whereby the legislature is precluded from making the members of the governing body gubernatorial appointees. Brown v. City of Galveston, 97 Tex. 1.

Philadelphia v. Fox, 64 Pa. 169, holds that, “the legislature may modify the internal arrangement of a municipal corporation or destroy it; ” and that it may ‘ ‘ continue the existence of a municipal corporation and assume the appointment of all its officers. ’ ’

Notwithstanding there is more reason for supposing that local self-government’ was impliedly reserved by the people' of Rhode Island than by the people of most other states, owing to the peculiar manner in which the settlements in Providence, Portsmouth and Newport were made, the people having purchased the lands from the Indians and established governments without a charter of any kind from the crown, yet it was said by the highest court of that state, in discussing the question of local self- government, in The City of Newport v. Horton, 22 R. I., at page 203: “Whilst this subject is more historical than legal, we have considered it to this length simply to show that the broad claim made and so urgently pressed by the petitioners cannot be sustained to the' extent of holding that the constitution of the State must be interpreted according to an unwritten theory of local self-government, which so entered into its provisions as to make it controlling in construing those provisions. ’ ’

The Legislature of Ohio passed an act establishing boards of public affairs for cities of first grade of the first class, and authorized the governor to appoint the members of said boards. The supreme court held the act to be constitutional. State ex rel. Herron v. Smith, 44 Ohio St. 348.

In 1892 the legislature of North Carolina passed an act amending the charter of the city of Wilmington, providing for the election, by the people, of one alderman from each ward, and the appointment of one alderman in each ward by the governor. The constitutionality of the act was upheld by the court. Harriss v. Wright, 121 N. C. 172.

In addition to the foregoing, we cite the following authorities, some qf which decide that no inherent right of local self-government exists, independent of express constitutional guaranty; and others determine principles which are at variance with the doctrine contended for: Redell v. Moores, 63 Neb. 219, overruling the earlier case of State v. Moores, reported in 55 Neb. 480, in which, by a divided court, the opposite view was taken; Commonwealth v. Plaisted, 148 Mass. 375; Wulf v. Kansas City, 77 Kan. 358; Coyle v. McIntire, 7 Hous. (Del.) 44; Commissioners of Revenue v. State, 45 Ala. 399; Hunter v. City of Pittsburg, 207 U. S. 161; Ohio ex rel. v. Covington, 29 Ohio 102; State v. Rosenstock, 11 Nev. 128; David v. Portland, 14 Ore. 98; Cooch v. Exeter, 70 N. H. 413; Baltimore v. State, 15 Md. 376; and State v. Williams, 68 Conn. 131.

"We do not wish to be understood as saying that it is impossible for the legislature to exceed its legitimate powers, unless expressly restrained by the Constitution. It is not omnipotent. It can not, for instance, reverse a judicial decision, although it may repeal the law supporting such decision; neither can it take a citizen’s property or levy taxes, for purposes purely private. Because those things do not fall within the legitimate sphere of government. That the legislature has not exceeded its power in passing the act in question, we think, is clear. But if we entertained a doubt on the question, it would still be our duty to uphold the act. A court exercises a very great power when it declares a law passed by the legislature to be void, and although its power to do so, in proper cases, is conceded, still it is a grave responsibility which the courts discharge with much delicacy. When the constitutionality of an act is a doubtful question, the rule is to uphold the act. Speaking for the court in State ex rel. Dillon v. County Court, 60 W. Va., at page 351, Judge PoeeeNBARGER says: ‘ ‘ Statutes can not be overthrown' by courts as unauthorized unless the want of power in the legislature to pass them is undoubted.” See, also, Woodall v. Darst, 71 W. Va. 350.

With the wisdom or propriety of the act, we have nothing to do. Those are matters for the legislature alone to consider; it determines the public policy. Our jurisdiction ends when we have determined the legislative power to exist. If the legislature has made a mistake, it is a political one, and it alone can correct it. It is the proper guardian of political rights; and the right to administer municipal government, as well as to create it, is purely a political right, not a natural one.

The privilege of electing their municipal officers is withheld from the citizens of Williamson for a limited time only. Relators are appointed to hold for a period of two years, and until the first election, provided for by the act, takes place. Their appointment may, therefore, well be regarded as provisional. Having made the appointments, the governor’s power to make further appointments is exhausted. No purpose is shown by the act to further withhold from the people of the city the privileges usually granted to the citizens of municipalities. Hence, even though we were of the opinion that the legislature could not withhold from the.citizens the privilege of electing their officers, indefinitely, still it would be our duty to uphold the act, and the governor’s appointments made thereunder, as being provisional. In this view we are supported by the opinion of Judge Cooley, in People v. Hurlbut, supra, who held that the act, in that case, did not unduly take from the people the right of local self-government, which he asserted as an inherent right in the people of Detroit.

Our conclusion leads to an affirmance of the judgments and decrees appealed from, and it will be so ordered.

Affirmed.