Commonwealth v. Rouse
| Decision Date | 17 January 1935 |
| Citation | 163 Va. 841 |
| Court | Virginia Supreme Court |
| Parties | COMMONWEALTH, EX. REL. J. E. KELLY v. LOVE B. ROUSE. |
Present, Campbell, C.J., and Holt, Epes, Hudgins, Gregory and Chinn, JJ.
1. QUO WARRANTO — Commonwealth Attorney — Acceptance of Position as Attorney for Home Owners' Loan Corporation — Section 290 of the Code of 1930 — Case at Bar. — In the instant case, a petition asking leave of court to file an information in the nature of a quo warranto against respondent to remove him from the office of attorney for the Commonwealth, it was alleged that respondent had accepted a position as district attorney for the Home Owners' Loan Corporation, an instrumentality of the United States, and that he was receiving besides his salary as such district attorney other emoluments under the government of the United States, thereby vacating his office as attorney for the Commonwealth under section 290 of the Code of 1930.
Held: That respondent's employment as attorney for the Home Owners' Loan Corporation was under the government of the United States, and his acceptance of such employment and the emoluments therefrom was in contravention of section 290 of the Code of 1930.
2. QUO WARRANTO — Issuance Not a Matter of Right — Judicial Discretion. — Neither at common law, under the modern practice, nor under the provisions of the Virginia statute, is an applicant for a writ of quo warranto entitled as a matter of absolute right, to have it issued, but whether it shall be awarded or not is subject, in a considerable degree, to the exercise of a wise judicial discretion.
3. QUO WARRANTO — Commonwealth Attorney Accepting Position with Home Owner's Loan Corporation — Interest of Relator Slight — Case at Bar. — In the instant case, a petition asking leave of court to file an information in the nature of a quo warranto against respondent to remove him from the office of attorney for the Commonwealth, it was alleged that respondent had accepted a position as district attorney for the Home Owners' Loan Corporation and that he was receiving emoluments under the government of the United States, thereby vacating his office as attorney for the Commonwealth under section 290 of the Code of 1930. The act of Congress creating the Home Owners' Loan Corporation was intended purely as an emergency measure to afford immediate direct relief on the part of the government of the United States to the owners of homes who were unable to pay or refinance mortgages on their homes. At the most, it was only intended as a temporary expediency, and not as a permanent governmental agency, and the alleged employment was therefore, of the same character. There was no one claiming the office as Commonwealths attorney in opposition to the respondent, and the relator had only a remote or slight interest in the question presented for determination. Under the circumstances the Supreme Court of Appeals did not feel that any practical benefit would result to the relator or to the general public to award the writ, and such being the case, was of the opinion that in exercise of the judicial discretion with which the court is vested, the writ should be denied.
Error to a judgment of the Corporation Court of the city of Bristol, upon a petition asking leave to file an information in the nature of quo warranto. Writ refused and petition dismissed. Petitioner assigns error.
The opinion states the case.
J. E. Kelly, for the plaintiff in error.
Love B. Rouse, for the defendant in error.
J. E. Kelly, hereinafter called the relator, presented his petition in the Corporation Court for the city of Bristol, asking leave of the court to file an information in the nature of quo warranto in behalf of himself and other taxpayers and voters of the city of Bristol, against Love B. Rouse, to remove him from office as attorney for the Commonwealth of the said city of Bristol, and declare said office vacant.
The petition alleges that said Love B. Rouse was elected attorney for the Commonwealth for the city of Bristol at the regular November election 1933, and afterwards duly qualified as such; that after entering upon the duties of said office, to-wit, on or about the 1st day of February, 1934, the said Love B. Rouse accepted a position as district attorney for the "Home Owners' Loan Corporation," which corporation, an instrumentality of the United States, was created and is functioning under an act of Congress which became a law on July 13, 1933 (Act Cong. July 13, 1933, section 1 et seq., as amended 12 U.S.C.A. section 1461 et seq.); that the said corporation is empowered under said act to employ attorneys, and to pay them by drafts drawn by said corporation on the Treasury of the United States; that besides the salary paid to said Love B. Rouse as such district attorney, he receives other emoluments under the government of the United States, and also compensation as attorney for the Commonwealth, thereby vacating his office as attorney for the Commonwealth under section 290 of the Code of Virginia; that said Love B. Rouse is, therefore, illegally performing the duties of attorney for the Commonwealth, and receiving compensation therefor, against the form of said statute and against the peace and dignity of the Commonwealth. Said petition further alleges that more than thirty days prior to the filing thereof, relator had requested the Attorney General of the State of Virginia to make application to the Corporation Court for the city of Bristol for a writ of quo warranto against the said Love B. Rouse, and had several times since repeated the said request, but the Attorney General had failed to make the said application. The petition thereupon prays that said information be allowed to be filed in the name of the Commonwealth, and that due process of law be awarded against said Love B. Rouse to answer the same touching the matters alleged in said petition, and that the Commonwealth have such judgment against said Love B. Rouse as is appropriate and authorized by law.
The court refused the writ prayed for and dismissed the petition, to which order of the court this writ of error was awarded. Section 290 of the Code provides that no person shall be allowed to hold any office of honor, profit, or trust under the Constitution of...
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