Booten v. Pinson

• Decision Date: 17 December 1915
• Parties: BOOTEN v. PINSON.
• Court: West Virginia Supreme Court

89 S.E. 985

77 W.Va. 412

BOOTEN v. PINSON.

Supreme Court of Appeals of West Virginia.

December 17, 1915

Submitted December 14, 1915.

Syllabus by the Court.

Mandamus is a proper remedy to admit a person to office from which he is wrongfully excluded, provided he is shown to have a clear prima facie, legal right thereto.

A vested right to a municipal office does not exist, and the Legislature may, by altering the charter of a city, abolish an office, although the term for which the claimant thereto was elected has not expired.

When the Governor has appointed certain persons to offices pursuant to a legislative act, creating the offices and authorizing him to appoint persons to fill the same, having certain defined qualifications, it will be presumed, in the absence of a showing to the contrary, that the persons so appointed are legally qualified.

Chapter 14, Acts 1915, amending the charter of the city of Williamson, a city of more than 2,000 inhabitants changing the plan of its government from the ordinary form administered by a mayor and councilmen, to a government by five commissioners, and authorizing the Governor to appoint the first commissioners, to hold office for a period of two years, beginning July 1, 1915, and ending June 30, 1917, and providing for the election of their successors by the voters of said city, at the first election provided for in the act, to be held on the first Thursday in June, 1917, does not contravene section 9, art. 10, or any other written provision, or violate the spirit of the Constitution.

The Legislature is not prohibited by the Constitution from establishing municipalities and providing for their government by officers to be appointed by the Governor; such acts are within its lawful power.

Unless the question is free from doubt, it is the duty of courts to uphold legislative acts as constitutional.

Additional Syllabus by Editorial Staff.

"Municipalities" are political subdivisions of the state, created by the Legislature, for purposes of governmental convenience, and exercising certain delegated governmental functions, which the Legislature may revoke at will.

Error to Circuit Court, Mingo County.

Proceedings by Orland H. Booten against A. C. Pinson, by Gail T. Dudgeon against John S. Hall, and by A. C. Pinson, by John S. Hall, and by Tunia Nunemaker and others against O. H. Booten and others. Decisions for plaintiffs in the two cases first mentioned, and defendants bring error; and decisions for defendants in the three cases last mentioned, and plaintiffs bring error. Affirmed.

Poffenbarger, P., dissenting.

Vinson & Thompson and John A. Sheppard, all of Huntington, Wiles & Bias, of Williamson, and Campbell, Brown & Davis, of Huntington, for plaintiffs in error.

Wells Goodykoontz, of Williamson, and John H. Holt, of Huntington, for defendants in error.

WILLIAMS J.

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 re-enacted, 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 bipartisan 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 elected 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., 85 S.E. 786, 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 councilmen 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, 49 S.E. 896, and Schmulbach v. Speidel, 50 W.Va. 553, 40 S.E. 424, 55 L.R.A. 922. Whatever may be the remedy in other states, the cases 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 bar 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 cannot 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. Sections 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...