Bd. Of Educ. v. Petitioner

• Decision Date: 21 November 1903
• Citation: 54 W.Va. 167
• Parties: Board of Education v. Holt et al.
• Court: West Virginia Supreme Court

54 W.Va. 167

Board of Education

v.Holt et al.

Supreme Court of Appeals of West Virginia.

Submitted September 2, 1008.

Decided November 21, 1903.

1. Writ of Prohibition When Awarded.

The writ of prohibition only properly issues to prevent unlawful judicial action by inferior tribunals exercising or assuming to exercise judicial functions. It never issues against administrative boards exercising purely administrative functions, (p. 168).

2. Writ of Prohibition When not proper.

The writ of prohibition is never proper to try title to office and oust de facto officers and replace them by others claiming to be de jure officers, (p. 168).

3. Motion to Discharge When not necessary.

When a circuit judge has issued a rule in prohibition directly contrary to the principles settled by this Court in a former case to which he was a party, this Court will not require the party making complaint to first make a motion to discharge such rule before applying to this Court for relief against the same. (p. 169).

Appeal from Circuit Court, Tucker County. Writ of prohibition by Board of Education, Davis District, against Holt, judge, et al.

Cuningiiam & Stallings, for petitioner.

C. C. Strieby and Conley & Smith, for respondent.

Dent, Judge:

The Board, of Education of Davis District, Tucker County, asks for a writ of prohibiton against John Homer Holt, Judge of the circuit court of said county.

This is a controversy between two sets of men claiming to be the legal board of education of Davis district in the county of Tucker. The contestants, George H. Howard and Joseph Kline claiming to be the de jure board of education, obtained a writ of prohibition from Judge Holt against said E. K. Hovcrmale and R. C. McTvelvey acting as the de facto hoard inhibiting them from acting as such board, and said Hovcrmale especially from acting as president and directing him to turn over to the alleged de jure board all the property belonging properly to the board of education of such district. In short the prohibition.awarded was a writ of ouster, turning out the de facto board and installing the alleged de jure board until the title to the office could be inquired into and determined.

This is the case of Hassinger v. Holt, Judge, &c, 47 W. Va. 348, repeated, and a refernce to the decision in that is sufficient to settle tin's case. This Court has so often held that the writ of prohibition only lies against judicial action of an inferior tribunal exercising judicial functions. Here it is used by the circuit court to prevent a de facto board of education from exercising purely administrative functions until the official titles of the members thereof can be inquired into. Not only is it used for this purpose, but it is used to put the incumbents out and put the contestants in until the title to the office can be determined. Thus making a writ of prohibition a revolutionary writ for the purpose of changing the administrative officers of the government until the title to the office can be settled....