Welch v. County Court of Wetzel County

Decision Date13 November 1886
Citation1 S.E. 337,29 W.Va. 63
PartiesWELCH and others v. COUNTY COURT OF WETZEL Co.
CourtWest Virginia Supreme Court

Submitted June 17, 1886.

Syllabus by the Court.

The rule, that matters of discretion are not subject to review must be confined to cases which are purely matters of discretion, or such as, in their result, cannot do injury. But whenever, in the exercise of discretionary powers, it appears that the discretion exercised was not a pure discretion, but a sound judicial discretion, and this discretion has been perverted and abused, or that its exercise has been in violation of established rules and precedents, and to the injury of any party, its exercise is subject to review, and it may be reversed by an appellate court.

A writ of certiorari is not a writ of right; but the issuing of it is dependent on a sound judicial discretion and a refusal of a circuit court to award it, on a proper petition to review the proceedings of the county court, in ascertaining and declaring the result of the vote on a relocation of a county-seat, may be reviewed by a writ of error issued by the supreme court of appeals.

The provisions of the statute law of West Virginia, prescribing the manner in which the county-seat of a county may be relocated by a vote of the people at a general election apply to all the counties in the state, including those whose county-seats were declared permanent in the special act of the legislature creating such counties.

The manner of giving notice that such a vote is to be taken, prescribed by the statute law, is substantially though not literally, complied with when the clerk of the county court, after the adjournment of the court, makes out and certifies a copy of the order, made by such court at a regular session, that a vote be taken at the next general election to be held in said county upon the question of the relocation of the county-seat at the place named in the petition to the county court, and printed copies of this order, and of the certificate of the clerk of the court, including his signature, are posted at each of the places of voting at least 40 days before the day of election, and, if a newspaper is printed in said county, when the said court shall cause a copy of said order to be published therein at least once in each week for four successive weeks prior to said election.

The requirement that the commissioners of election of each place of voting shall make out and sign a separate certificate of the result of the vote, and deliver the same to the clerk of the county court within four days, (excluding Sundays) after the day in which the election is held, is mandatory, and not directory; and if it be not complied with at any place of voting, that fact vitiates the determination of the question whether the county-seat shall be relocated by the votes cast at such election; and this provision of the law cannot be regarded as substantially complied with, if the commissioners of election at each place of voting insert the result of the vote at each place of voting in the certificates, or in one of the certificates, which they are required to make and sign, of the result of the vote at such place of voting for each candidate voted for; such separate certificate, and the delivery of it by the commissioners of election at each place of voting, within four days (Sundays excluded) after the day on which the election was held, to the clerk of the county court, and the requirement that he shall lay it before the county court at its next session thereafter, being regarded as designed in part to prevent the fraudulent alteration of such certificates.

Error to circuit court, Wetzel county.

B. M. Welch, and 54 other citizens and tax-payers of Wetzel county, in this state, applied by petition to the circuit court of Wetzel county for a writ of certiorari against the county court of Wetzel county, to require said county court to remove the record of its proceedings in relation to the relocation of the county-seat of said county into the circuit court of said county. The petition set out that on June 17, 1884, David Burr, and 802 other citizens or persons said to be citizens of Wetzel county, filed their petition in said county court praying a relocation of the county-seat of said county at Wileyville, in Centre district, in said county, on a certain lot of ground designated in the petition; and thereupon the said county court ordered a vote to be taken at the next general election, to be held in said county on the second Tuesday in October, 1884, upon the question of the relocation of said county-seat at Wileyville, upon a certain lot, described by metes and bounds, containing one acre; that on said election day a vote was accordingly taken on this question; that the county court of said county, seven days afterwards, examined the ballots, poll-books, and certificates returned from the districts and voting places in said county; that the 54 petitioners above referred to appeared before the said county court, and objected to the counting of said vote, or the declaring of any result of the said election as to the said question of the relocation of said county-seat, on the ground that there were no separate certificates of said vote on this question filed with the clerk of the county court of said county, as required by the fifteenth section of chapter 5, of the Acts of 1881, which the petitioners allege was the fact; that the said county court overruled this and all other objections of the petitioners, and declared the county-seat of said county to be removed from New Martinsville, and relocated at Wileyville in said county; and that they appointed the president of the county court, and one of the commissioners of said court, and a third person to submit to the said court plans and specifications for the necessary public buildings to be erected at Wileyville, including a court-house and jail.

The petitioners in this petition assert that this action of said county court was unwarranted; because (1) the said petition for the relocation of said county-seat was not presented to, or the said order, for the election made by, said county court at a regular meeting of said court, duly named and appointed; (2) because said county court did not ascertain that the petition had been signed by the requisite number of legal voters in the manner prescribed by law, that is, by allowing one vote for every six persons, as shown by the last preceding census; (3) because the said clerk did not, as required by law, certify any copies of said order directing said vote on said question to be taken, but instead gave to the sheriff printed copies of said order, and these printed copies, not certified by the clerk, were the only copies of said order posted by the sheriff of said county; and (4) because the commissioners of said election, as before averred, did not make out and sign and return separate certificates of the result of said election. The petition then concluded as follows: "Wherefore your petitioners respectfully charge that the different orders herein referred to were made without any authority of law, and pray that your honor grant to them a writ of certiorari, directed to the county court of Wetzel county, commanding that court to certify and, remove the record of its action in relation to the relocation of the countyseat of said county, the ballots, poll-books, and certificates of the said election of the fourteenth of October, 1884, upon the question of relocating the county-seat of said county, with all the proceedings relating thereto, and to abide by and perform such order as may be made in the premises, after all matters and questions herein involved shall have been heard and determined." To this petition the following affidavit was appended:

" State of West Virginia, Westzel County, to-wit: Before the undersigned, clerk of the circuit court of Wetzel county, W.Va., in and for the county and state aforesaid, on this nineteenth day of December, 1884, and in the said county, personally appeared E. B. Snodgrass, one of the petitioners above named, who, being duly sworn, says that the facts and allegations therein contained are true, except so far as they are therein stated to be on information, and that so far as they are therein stated to be upon information, he believes them to be true."

The following is a copy of the order showing the filing of this petition, and the action taken on it by the circuit court of Wetzel:

" B. M. Welch, M. B. Davis, Jacob Koontz, and others, vs. The County

Court of Wetzel County.

"PETITION FOR CERTIORARI.

"This day came B. M. Welch, M. B. Davis, Jacob Koontz, and others, and with leave of the court filed their petition, praying a writ of certiorari against the county court of Wetzel county, requiring it to remove the record of its proceedings in relation to the relocation of the county-seat of said county as specified in said petition, and to produce the same before this court, and to abide by and perform any order of this court that may be made in relation thereto. After consideration by the court of the matters alleged and complained of in said petition, the court is of opinion that none of the orders and proceedings of the county court of Wetzel county in relation to the matters complained of ought to be reviewed, reversed, revised, or annulled on account of any supposed error set out in said petition. Therefore the court doth refuse to grant the writ of certiorari prayed for, and doth dismiss the said petition." From this judgment of the circuit court of Wetzel county, B. M. Welch and the 54 other petitioners have obtained from this court a writ of error.

Ewing Melvin & Riley, for plaintiffs in error.

Jas Morrow, Jr., for defe...

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