Fleming v. Guthrie

• Decision Date: 12 January 1889
• Citation: 9 S.E. 23,32 W.Va. 1
• Court: West Virginia Supreme Court
• Parties: Fleming v. Guthrie, Judge.

9 S.E. 23

(32 W.Va. 1)

Fleming

v.Guthrie, Judge.

Supreme Court of Appeals of West Virginia.

Jan. 12, 1889.

Injunction—Jurisdiction—Prohibition.

1. A court of equity has no jurisdiction to enjoin the secretary of state from delivering to the speaker of the house of delegates the sealed returns of an election for governor, properly transmitted to him, and such injunction, if granted, will be treated as a nullity.

2. This court will not award a writ of prohibition against a circuit court to prohibit it from proceeding by mandamus to compel the secretary of state to deliver such returns, on the petition of a party who alleges no other ground or interest in the matter than that he is the plaintiff in said injunction suit, and that the circuit court has ignored his injunction, although it appears that said court had no jurisdiction to award said mandamus.

(Syllabus by the Court.)

Petition for writ of prohibition.

Okey Johnson, J. W. St. Clair, and Brown & Jackson, for petitioner. J. A. Hutchinson and W. P. Hubbard, for respondent.

Snyder, P. On January 10, 1889, A. B. Fleming presented his petition to this court, in which he alleged that on January 9, 1889, he exhibited his bill in equity to A. N. Campbell, a circuit judge of this state, and obtained from him an injuntion restraining Henry S. Walker, secretary of state, from laying before the legislature of the state the certificate of the commissioners of the county court of Kanawha county, purporting to ascertain the result of the general election held in said county on November 6, 1888, for the office of governor of this state; that, after said injunction had been perfected and served upon said Walker, Nathan Goff, who was also a defendant to said bill of injunction, without any notice to the petitioner, applied to F. A. Guthrie, judge of the circuit court of Kanawha county, in term, for a writ of mandamus to compel said Henry S. Walker, secretary as aforesaid, to do what he had been enjoined from doing by said bill; that Judge Guthrie, being fully advised of the existence of said injunction, announced from the bench that he would ignore and treat as naught said injunction, and thereupon he did ignore said injunction, and awarded a mandamus nisi, returnable at 9 o'clock a. m. on January 10, 1889, commanding said Walker, secretary as aforesaid, to forthwith deliver said certificate to the speaker of the house of delegates of the legislature; that said Walker has no personal interest in said injunction or mandamus proceedings; and that petitioner is the real and only opposing party in interest against the said Goff in any of said matters. The petition prayed for a rule against said Guthrie, judge, etc., and said Goff, to show cause why a writ of prohibition should not issue prohibiting said Guthrie, judge, etc., from holding for naught and setting aside said injunction, and prohibiting him and the said Goff from proceeding in said mandamus case without notice to petitioner, or opportunity for him to appear and defend his interests therein. The rule was awarded as prayed for, returnable on January 11, 1889, at which time the respondents appeared, and moved the court to quash the rule. On the motion of the petitioner, his petition was so amended as to show that the injunction bill averred that a writ of certiorari had been sued out of the circuit court of Kanawha county by petitioner against the county commissioners of said county to supervise and correct the action of said commissioners in canvassing the vote for governor at the election of November 6, 1888; that said writ had been sued out on January 4, 1889, and was still pending; and that said county commissioners had transmitted said certificate to said Walker, secretary, etc., on December 15, 1888. The motion to quash the rule, after having been argued by counsel for the respective parties, was on January 12, 1889, submitted to this court for its decision.

It is contended by the respondents that the injunction awarded by Judge Campbell, referred to in the petition, was void, because a court of equity has no jurisdiction to restrain a public officer from performing a plain duty required by the constitution. On the other hand it is insisted for the petitioner that, if any jurisdiction existed for the injunction, then the action of the circuit court in the mandamus proceedings is such an abuse of its powers and jurisdiction as will be prevented by prohibition. It is thus apparent that the important question is, did the judge have jurisdiction to award said injunction? In Walton v. Develing, 61 Ill. 201, it was held that, "where the law plainly requires an officer to perform a duty, and he is not exceeding or abusing his powers, but fairly acting within the...