Brd.Water v. Booth, 8182.
| Court | Supreme Court of West Virginia |
| Citation | 180 S.E. 180 |
| Decision Date | 21 May 1935 |
| Docket Number | No. 8182.,8182. |
| Parties | BROADWATER . v. BOOTH et al. |
180 S.E. 180
BROADWATER .
v.
BOOTH et al.
No. 8182.
Supreme Court of Appeals of West Virginia.
May 21, 1935.
1. Under charter provisions, the mayor of the city of Belington has exclusive authority to appoint a city clerk, by and with consent of the council. Council may approve or reject, but cannot appoint or elect, except in case of vacancy.
2. There is no vacancy in a public office when there is an incumbent legally authorized to discharge the duties thereof.
Mandamus proceeding by O. J. Broadwater against Earl Booth and others.
Writ refused.
[180 S.E. 181]Wm. T. George, of Philippi, for relator.
J. Blackburn Ware, of Philippi, for respondents Earl Booth and Howard Price.
MAXWELL, Judge.
Relator, asserting title to the office of clerk of the city of Belington, seeks possession thereof by mandamus.
The pertinent provision of the city charter is this: "The mayor shall nominate, and with the approval and consent of the council, shall appoint a city clerk for the said city of Belington, and such city clerk shall hold office for a period of two years, beginning with the first day of April, one thousand nine hundred twenty-seven, or at the first regular meeting of said common council, held after the first day of April, one thousand nine hundred twenty-seven; said city clerk, when so appointed and approved, shall hold office for a term of two years, subject to the provisions of this section, and at the expiration of every two-year period hereunder, it shall be the duty of the said mayor to so appoint, with the consent and approval of the city council, such clerk, and each succeeding clerk, so approved and appointed, shall likewise hold office for a term of two years. * * *" Acts of the Legislature 1927, Municipal Charters, c. 14, § 8.
On the 4th of April, 1935, at a meeting of the council of the city, the respondent, Howard Price, mayor, made nomination of respondent, Earl Booth, for the office of city clerk. Upon a vote, a minority of the council approved the mayor's nominee; a majority voted neither yea nor nay on the Booth nomination, but cast their votes for the relator, O. J. Broadwater, for clerk. Later, at an alleged adjourned meeting attended by only the five members of council constituting the said majority, a bond tendered by relator was approved and his oath of office filed. On this setting, he asserts his right to possession of the office. Booth, who has been clerk for several years, is holding over and in control.
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