Mustard v. Bluefield , 130 W. Va. 763 ( 1947 )

I concur in the award of the writ of mandamus as set forth in the majority opinion, but I think the action of the relator and respondents in the filing of exhibits with their pleadings and the applicability of the first nine sections of Code, 8-5, should have been discussed.

Subject to qualifications not necessary to mention, mandamus is a proceeding at law. Newman v. Bailey, 124 W. Va. 705, 708,22 S.E.2d 280; State ex rel. Matheny v. County Court, 47 W. Va. 672,35 S.E. 959; Fisher v. City of Charleston, 17 W. Va. 595. In the absence of statutory authority, exhibits attached to a declaration filed in an action at law are not a part thereof.Pingley v. Pingley, et als., 84 W. Va. 433, 100 S.E. 216. Extrinsic papers may not be filed as exhibits with, or as a part of, a common law declaration. Vorholt v. Vorholt, 111 W. Va. 196,160 S.E. 916. See Snyder v. Wheeling Electrical Co.,43 W. Va. 661, 28 S.E. 733; Hall v. Coal Coke Co., 89 W. Va. 55,57, 108 S.E. 491; Laurenzi v. Distilling Co., 90 W. Va. 794,801, 112 S.E. 177. A similar rule has been recently applied by this Court to a proceeding by notice of motion for judgment. Beckley v. Craighead, 125 W. Va. 484, 24 S.E.2d 908. The case of Beckley v. Craighead, supra, by necessary implication, overruled the second point of the syllabus in the case of Water Co. v. Kingwood, 121 W. Va. 66, 1 S.E.2d 395. Where oyer of an instrument is craved and had, the instrument then becomes a part of the pleading. Hamrick v. Nutter, 93 W. Va. 115,122, 116 S.E. 75. It is true that in the case ofHawkins v. Insurance Co., 114 W. Va. 287, 171 S.E. 645, it was held that under Code, 56-4-17, an insurance policy may be filed as an exhibit with the notices of motion for judgment on insurance policies. But the holding of the Court in the Hawkins case is grounded entirely on the statute and, in my opinion, does not contravene the rule announced in the case of Pingley v. Pingley, et als., supra.

An examination of the record in the case of Bank v.Buckhannon, 118 W. Va. 26, 188 S.E. 661, which was a proceeding in mandamus similar to the instant case, discloses that this Court considered an exhibit filed with the petition, although no mention of that fact is made in the opinion. There may be other instances wherein, without objection, this Court has tacitly permitted the filing of exhibits with pleadings in mandamus proceedings and treated such exhibits as a part of the record, but in the face of the pronouncements by this Court, hereinbefore cited, it is difficult to reconcile such practice with the decisions of this Court.

It may be said that the petition and the answer and return in mandamus are different from the declaration in an ordinary action at law, but so far as this discussion is concerned, I can see no distinction between pleadings in ordinary actions at law and those in a mandmaus proceeding.

In the instant case the relator and the respondents filed numerous exhibits as a part of the petition and the answer and return to the rule, as well as a paper denominated by relator as "PETITIONER'S REPLY TO THE ANSWER OF THE RESPONDENTS." This proceeding being on the law side of the court, and oyer not having been craved, the exhibits so filed, in my view, are not a part of the record in this proceeding, with the possible exception of a certified copy of the zoning ordinance, designated in respondents' answer as "Exhibit AA," which, for reasons hereinafter stated may be considered as evidence of the ordinance of the City of Bluefield.

I deem it necessary to say that prior opinions of this Court affecting a pending question should be followed, if right; or overruled, if wrong. In no event should such opinions be ignored or disregarded. The practice of filing exhibits with pleadings in legal proceedings should either be formally approved by express statements in an opinion or authorized by a rule of court. The present practice of filing such exhibits in actions at law should not continue contrary to former pronouncements of this Court.

In the absence of statutory direction to do so, courts do not take judicial notice of the ordinances of municipal corporations. Boyland v. City of Parkersburg, 78 W. Va. 749,90 S.E. 340; State v. Bunner, 126 W. Va. 280, 289, 27 S.E.2d 823;Brannon v. Perkey, 127 W. Va. 103, 106, 31 S.E.2d 898. The zoning ordinance of the City of Bluefield was filed without proof of its existence or any evidence that it was an ordinance of the city, but no objections were made to its introduction into this record. Therefore, the existence and authenticity of the ordinance are waived, and the Court may consider the certified copy as evidence of the existence of a zoning ordinance of the City of Bluefield. Boyland v. City ofParkersburg, supra.

The statute under which zoning ordinances are adopted is Code, 8-5-1 to 9, inclusive. Code, 8-5-10, reads as follows: "Sections one to nine, both inclusive, of this article shall not be effective in any municipality until the provisions thereof shall have been submitted to and ratified by the qualified voters of such municipality at some election held therein. * * *. If a majority of the votes cast upon the question be for zoning the provisions of said sections shall from the day the council declares the result of such election be effective in such municipality. If a majority of the votes cast be against zoning the question may be again submitted to a vote at any regular election or elections for offices in the manner herein provided."

There is no showing of any kind in this record, nor allegation in any pleading, which establishes that Sections 1 to 9 of Code, 8-5, have been adopted by the City of Bluefield. The record is entirely silent as to the submission to the voters, and ratification of the first nine sections of Code, 8-5. Therefore, by the very terms of the statute itself, the provisions for zoning contained in those sections are not applicable to the City of Bluefield.

Nevertheless, this proceeding was presented and argued upon the assumption that zoning statutes had been duly and properly ratified by the voters of the City of Bluefield, as establishing a clear legal right to the relief sought. Mandamus should not be granted on assumptions of that kind. I think it was incumbent upon the relator to show that the statute had been duly and properly adopted in accordance with the terms thereof; otherwise he could not invoke the benefit thereof.

However, I think the writ was properly awarded in this proceeding under the authority of the zoning ordinance of the City of Bluefield filed by respondents, and which I consider as evidence of the law of that municipality. But I do not think this ordinance can be considered as implementing or carrying out the provisions of a statute not shown to be applicable to the municipality in question.

Judge Kenna authorizes me to say that he joins in this concurrence.