Doolittle v. County Court Of Cabell County.

Decision Date02 July 1886
Citation28 W.Va. 158
PartiesDoolittle et al. v. County Court of Cabell County.
CourtWest Virginia Supreme Court

The first and second points of the syllabus in Fishery. The City of Charleston, 17 W. Va. 695, and the sixth point of the syllabus in Fisher v. The Mayor, Recorder, &c, of the City of Charleston, 17 W. Va. 628, approved and acted upon. (p. 166.)

2. The rule, that a demurrer reaches back to the first fault in the pleadings of either party, is as applicable to pleadings in mandamus cases, as it is in ordinary suits at common law. (p. 172)

3. Upon a motion to quash a mandamus nisi) which is the equivalent of a general demurrer, the Court will not quash the writ, it' the defect in it is merely formal, especially when it appears from the petition, on which the writ was issued, and which has been sworn to, that such defect could be truthfully corrected and is such, as the Court, if asked, would permit to be corrected by amending the writ at bar. (p. 170,)

4. Tuder sec. 15 of ch. 39 of the Code, as amended by ch. 5 of the Acts of 1881, the petition should conclude with a prayer, that the county court sl.ould make an order, that a vote be taken at the next general election to be held in the county upon the question of the re-location of the county-seat at the place named in said petition; and this place is designated with sufficient certainty, when it is called a certain city or town, and there should be no designation of the particular locality in such city or town as the place, where the county-seat is to be located, no matter how much extent of land is covered by the boundaries of such city or town, or how sparse in portions of these boundaries may be the population, (p. 183.)

5. This law is complied with, if upon the tiling of such petition it be shown, that it is signed by one fifth of all the legal voters of the county estimated by allowing one vote for every six persons as shown by the last preceding census, though the petition be undated and no proof is offered to show, either when the petition was signed by any of the signers, or that any of them were voters, at the time it was signed, (p. 181.)

(i. The questions, whether such petition should be allowed to be filed, and whether the order, asked for in the petition should be granted by the county court, are not judicial questions; but it is an absolute duty imposed upon the county court, when such a petition, as is prescribed by this law, is presented and duly verified by affidavit and signed by the requisite number of legal voters of the county, to permit it to be filed and to make the order prayed for in the petition; and the court having no discretion to refuse to permit such petition to be filed or to make such order, if it refuses so to do, such ministerial duty can be enforced by mandamus. (p. 182.)

T. L. Michie and Simms $ Enslow for petitioners.

Knight $ C&tteh and B. J. Me Comas for respondents.

Statement of the case by Green, Judge:

On June 2, 1886, E. S. Doolittlc and 806 others, citizens and voters of the county of Cabell in the State of West Virginia, presented to this Court their petition setting forth that the county-seat of said county is now located at Barbours-ville, and that the petitioners, legal voters of said county, signed a petition to the county court ot said county praying that said county court would make an order, that a vote on the re-location of said county-seat at the city or Huntington in said county be taken at the next general election on Tuesday next after the first Monday in November, 1886; that E. S. Doolittle and two others of said petitioners verified the petition by making affidavit, that the subscribers thereto were, as the affiants verily believed, legal voters of said county; that at a regular session of said county court on April 28, 1886, after said petitioners presented their petition to the said county court and asked leave to file it at said session of said court and proved as adjudged by said county that said petitioners, whose names were signed to said petition, were and are legal voters of said county, they proved by the census of 1880, that they were and are greater in number than one fifth of all the legal voters of said county; that thereupon the said county court refused to allow said petition to be filed and refused to make any order submitting the question of re-location of said county-seat to the voters of said county, as prayed for in said petition, which action ot the court was excepted to by the petitioners, and a bill of exceptions setting out the facts and the action of the court was duly signed by said court and made a part of the record, a copy of which is filed with the petition as a part thereof. This action of the said county court, the petition alleges, was illegal, said court having no discretion in the matter but being bound to permit the petition to be filed and to make the order to submit the re-location of said county-seat to the voters ot said county as prayed for in said petition.

The petition to this Court then sets forth the reasons, why said petition was not presented to the judge of the circuit court of Cabell and concludes as follows:" Your petitioners therefore pray, that a writ of mandamus be awarded by your honorable Court to the said 'the county.court of Cabell county and Thomas Thornburg, Thomas Bias and G. W. Hackworth, commissioners constituting said county court of Cabell county, commanding it and them to allow the aforesaid petition to be filed and to make an order, that a vote be taken at the next general election to be held in the said Cabell county, to-wit: on the Tuesday after the first Monday in November, 1886, Upon the question of the re-location of the said county-seat of said Cabell county at the said city of Huntington in the said county." This is signed by these petitioners by their counsel. The facts stated in the petition are sworn to as true by E. S. Doolittle one of the petitioners.

The entire record of the proceedings in said matter in the county court of Cabell hereby certified by its clerk is filed with said petition as apart thereof; and it shows, that the facts set forth in said petition to this Court are true. It also shows that the petitioners proved by the census of 1880, that the said petition to the county court of Cabell was signed by more than.one fifth of all the legal voters of said county estimated by allowing one vote for every six persons in said county, as shown by the last preceding census, as provided for by law. The petition to the county court is set out in this copy of the record at length with all the signatures thereto. There is no date to the petition. The affidavits to it as stated above are also set forth in this record and are such, as are required by this law. This record shows also, that the citizens of Barboursville by their counsel objected to the tiling of this petition and in support of their objection introduced the map of the city of Huntington and by it proved, that the corporate limits of the city extended from the upper or east side of the Guyandotte river down the Ohio river a distance of three miles or more and from the Ohio river back to the hills a distance ot one and one half to two and one half miles; that only a portion ot said space was built up as a city or town, the larger part being near the center; that a portion of the said limits were farms, fields and forest. The county court thereupon put on said record its opinion, that said petition was not sufficient, and sustained this objection of the citizens of Barboursville and refused to allow said petition to be tiled. The petition to the county court ot Cabell referred to is set out at length in said record ot the county court of Cabell and is as follows:

7b the. worshipful the county court of (abell county, West Vir-ginia:

"Your petitioners whose names are hereto signed would respectfully represent unto the court that they are citizens and voters of Cabell county aforesaid, and they are desirous of the re-location ot the county-seat of said county ot Cabell, that the said county-seat may be removed from the town of Barboursville to and re-located in the city of Huntington in said county. Your petitioners would therefore most respectfully pray that your honorable court will make an order that a vote may be taken upon the question of such re-location at and to the city of Huntington aforesaid, at the next general election to be held in said county on Tuesday next, after the first Monday in November, 1886, and in duty bound, they will ever pray, &c."

Then follow the signatures of E. S. Doolittle and 806 others and the affidavits of E. 8. Doolittle and E. Si Buffington and E. Kyle also signers to said petition. Doolittle swears that he verily believes, that the signers to said petition are legal voters of said county, and that he had charge of said petition, while it was being signed. His affidavit is dated April 15, 1886. E. S. Buffington states in his affidavit, that he knows all the signers of said petition personally, he being the deputy sheriff of said county, except sixty, whose names are specified, and he verily believes them to be legal voters of said county. Kyle in his affidavit states that he has been from 1881 to 1884, the sheriff of said county, and that he knows all except eight of the sixty persons stated to be not personally known to Buffington, and that he verily believes them to be legal voters in said county.

Upon June 2, 1886, this Court acted on this petition and dispensing with a rule ordered a mandamus nisi to issue at once according to the prayer of the petition returnable on June 18, 1886, at 10 o'clock a. m. The respondent appeared on that day and moved to quash the mandamus nisi. This mandamus nisi simply recites, that on June 2, 1886, came before this Court E. S. Doolittle and 806 other citizens and voters of Cabell county and presented a petition praying a writ of mandamus ...

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