Frantz v. Wyo. County Court

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER
Citation69 W.Va. 734,73 S.E. 328
PartiesFRANTZ et al. v. WYOMING COUNTY COURT et al.
Decision Date14 November 1911

73 S.E. 328
(69 W.Va.
734)

FRANTZ et al.
v.
WYOMING COUNTY COURT et al.

Supreme Court of Appeals of West Virginia.

Nov. 14, 1911.


[73 S.E. 328]
(Syllabus by the Court.)

1. Mandamus (§ 23*)—Persons Entitled to Relief — Interest in Subject-Matter — Citizens or Taxpayers.

A citizen, taxpayer, or voter in any proper case may maintain mandamus to compel a public tribunal to perform a ministerial duty, imposed upon it by law in favor of the public without showing any special or pecuniary interest in the performance thereof.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 56; Dec. Dig. § 23.*]

2. Mandamus (§ 23*)—Persons Entitled to Relief—Petitioners.

If such duty arises upon the filing of a petition bearing the signatures of a large number of persons, and performance is refused, mandamus lies, at the instance of one or more of such petitioners, to compel performance.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. § 55; Dec. Dig. § 23.*]

3. Counties (§ 34*)—County Seat—Relocation—Submission of Question to Vote-Bond.

The statutory bond, conditioned to pay the legal costs of a special election on the question of relocation of the county seat of a county, need not be tendered or filed with the petition for submission of such question. It suffices to give the bond at the term at which the petition is filed.

[Ed. Note.—For other cases, see Counties, Cent. Dig. §§ 34-37; Dec. Dig. § 34.*]

4. Counties (§ 35*)—County Seat—Relocation—Submission of Question to Vote-Time for Holding.

The filing of a proper petition, in a year in which no general election is to be held, for submission of such question, requires submission thereof at a special election, even though, by reason of delay in filing the petition, the special election must occur in a year in which a general election will be held.

[Ed. Note.—For other cases, see Counties, Cent. Dig. §§ 38—5; Dec. Dig. § 35.*]

5. Counties (§ 34*)—County Seat—Relocation—Submission of Question to Vote— Proceedings.

Prevention of the filing of a petition for such an election at a regular session of a county court by a clandestine meeting and immediate adjournment of the term, with intent to prevent it, excuses failure to present or file the petition at such meeting, and also lack of a formal demand, and amounts to a refusal on the part of the court to receive and act upon the petition.

[Ed. Note.—For other cases, see Counties, Cent. Dig. §§ 34-37; Dec. Dig. § 34.*]

6. Mandamus (§ 81*)—Subjects of Relief-Acts of Public Officers.

If a county court in regular session adjourn without performance of a ministerial duty it was bound by law to perform at such session, on behalf of the public, and with intent to avoid performance thereof, a citizen, desiring performance of such duty, may, by mandamus, compel such court to reconvene and perform it. Quoad the omitted duty, the term of court is deemed to continue until it has been performed.

[Ed. Note.—For other cases, see Mandamus, Cent. Dig. §§ 138, 139; Dec. Dig. § 81.*]

Original proceeding by L. N. Frantz and others for mandamus to the County Court of Wyoming County and others. Peremptory writ granted.

M. F. Matheny, R. D. Bailey, and Farley, Sutphin & Ward, for petitioners.

George P. Stewart, Pros. Atty., and Howard & Worrell, for respondents.

POFFENBARGER, J. [1] On this application for a peremptory writ of mandamus, to compel the county court of Wyoming county to reconvene, as in regular session, and permit the filing of a petition for an election on the question of relocation of the county seat of said county, and enter an order providing for such election, lack of pecuniary interest in the relators is relied upon as barring right to relief. Occasionally it is said in the text-books and decisions that pecuniary interest in the relator is essential (19 A. & E. Enc. L. 884; People v. Masonic Lodge, 98 Ill. 635; Payne v. Staunton, 55 W. Va. 202, 46 S. E. 927); but this generally occurs in those cases in which the relator seeks some alleged right in a corporation or a benefit society by mandamus. There are numerous instances in which we have granted the writ at the instance of relators having no pecuniary interest in the subject-matter. Doolittle v. County Court, 28 W. Va. 158; Brown v. County Court, 45 W. Va. 827, 32 S. E. 165; Morgan v. County Court, 53 W. Va. 372, 44 S. E. 182; Mann v. County Court, 58 W. Va. 651, 52 S. E. 776. Some of these cases were of the class to which this one belongs—applications by citizens for writs of mandamus to compel county courts to perform public functions concerning elections to relocate county seats. Any substantial interest, whether pecuniary or not, suffices in all cases in which the purpose of the writ is to compel performance of a public duty. Citizens, taxpayers, and voters in all proper cases may invoke the remedy to compel performance of a duty which a public officer or tribunal owes them, without showing any interest, other than that they are citizens, taxpayers, or voters, as the case may be. 26 Cyc. 404; Merrill on Mand. § 230. In some jurisdictions, private individuals are not allowed the aid of this writ to enforce performance of public duty, but that is not our rule. Where the courts do so hold, a special or pecuniary interest must be shown to enable a private individual to sue in mandamus. Failure to notice the two distinctions here noted may result in the invocation of inapplicable precedents and judicial expressions.

The right of only 5 of the 987 petitioners to apply for this writ is also denied by the respondents. It is usual for one of the petitioners to ask for the writ on behalf of himself and all the others; but we do not

[73 S.E. 329]

regard this as essential. Equity principles require all persons interested in the subject-matter of an equity suit to be made parties; but those principles seem not to apply in mandamus. Payne v. Staunton, 55 W. Va. 202, 46 S. E....

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20 practice notes
  • Carter v. City Of Bluefield, No. 10142.
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...act before proceeding to invoke that remedy. See Fisher v. City of Charleston, 17 W.Va. 595; Frantz v. County Court of Wyoming County, 69 W. Va. 734, 73 S.E. 328; State ex rel. Daugherty v. County Court of Lincoln County, 127 W.Va. 35, 31 S.E.2d 321. The petitioners attack the ordinance as ......
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...on the official ballot, though this would call for a reconvening of the board to discharge their duty lawfully. Frantz v. County Court, 69 W.Va. 734, 73 S.E. 328; State ex rel. Heironimus v. Town of Davis, 76 W.Va. 587, 85 S.E. 779; State ex rel. Lamb v. Board of Ballot Commissioners, 97 S.......
  • Allen v. State, Human Rights Com'n, No. 16303
    • United States
    • Supreme Court of West Virginia
    • December 6, 1984
    ...412 (1918); Syl. pt. 5, State ex rel. W.H. Wheeler & Co. v. Shawkey, 80 W.Va. 638, 93 S.E. 759 (1917); Syl. pt. 1, Frantz v. County Court, 69 W.Va. 734, 73 S.E. 328 (1911); Capito v. Topping, 65 W.Va. 587, 590, 64 S.E. 845, 846 (1909); Syl. pt. 9, Mann v. County Court, 58 W.Va. 651, 52 S.E.......
  • Carter v. Bluefield, (No. 10142)
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...act before proceeding to invoke that remedy. See Fisher v. City of Charleston, 17 W. Va. 595; Frantz v. County Court of Wyoming County, 69 W. Va. 734, 73 S. E. 328; State ex rel. Daugherty v. County Court of Lincoln County, 127 W. Va. 35, 31 S. E. 2d 321. The petitioners attack the ordinanc......
  • Request a trial to view additional results
20 cases
  • Carter v. City Of Bluefield, No. 10142.
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...act before proceeding to invoke that remedy. See Fisher v. City of Charleston, 17 W.Va. 595; Frantz v. County Court of Wyoming County, 69 W. Va. 734, 73 S.E. 328; State ex rel. Daugherty v. County Court of Lincoln County, 127 W.Va. 35, 31 S.E.2d 321. The petitioners attack the ordinance as ......
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • October 18, 1960
    ...on the official ballot, though this would call for a reconvening of the board to discharge their duty lawfully. Frantz v. County Court, 69 W.Va. 734, 73 S.E. 328; State ex rel. Heironimus v. Town of Davis, 76 W.Va. 587, 85 S.E. 779; State ex rel. Lamb v. Board of Ballot Commissioners, 97 S.......
  • Allen v. State, Human Rights Com'n, No. 16303
    • United States
    • Supreme Court of West Virginia
    • December 6, 1984
    ...412 (1918); Syl. pt. 5, State ex rel. W.H. Wheeler & Co. v. Shawkey, 80 W.Va. 638, 93 S.E. 759 (1917); Syl. pt. 1, Frantz v. County Court, 69 W.Va. 734, 73 S.E. 328 (1911); Capito v. Topping, 65 W.Va. 587, 590, 64 S.E. 845, 846 (1909); Syl. pt. 9, Mann v. County Court, 58 W.Va. 651, 52 S.E.......
  • Carter v. Bluefield, (No. 10142)
    • United States
    • Supreme Court of West Virginia
    • June 14, 1949
    ...act before proceeding to invoke that remedy. See Fisher v. City of Charleston, 17 W. Va. 595; Frantz v. County Court of Wyoming County, 69 W. Va. 734, 73 S. E. 328; State ex rel. Daugherty v. County Court of Lincoln County, 127 W. Va. 35, 31 S. E. 2d 321. The petitioners attack the ordinanc......
  • Request a trial to view additional results

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