Hall v. Staunton.

• Decision Date: 22 April 1904
• Citation: 55 W.Va. 684
• Court: West Virginia Supreme Court
• Parties: Hall v. Staunton.,

55 W.Va. 684

Hall

v.Staunton.

Supreme Court of Appeals of West Virginia.

Submitted April 21, 1904

Decided April 22, 1904.

Mandamus.

The extraordinary writ of mandamus will never be issued in any case where it is unnecessary, or where, if used, it would prove unavailing, fruitless and nugatory. The court will not compel the doing of a vain thing. A mere abtsract right, unattended by any substantial benefit to the party asking mandamus, will not be enforced by the writ. (p. 686).

Inspection of Papers in Clerk's Office.

Petition of Addison Hall for writ of mandamus to E. W. Staunton, Clerk of the County Court.

Refused.

Linn, Byrne & Cato, and P. G. Walker, for petitioner. Mollciian, McClintic & Mathews, for respondent.

Brannon, Judge:

Addison Hall presented to this Conrt a petition praying for a mandamus against E. W. Stannton, clerk of the county court of Kanawha county, to compel Staunton to allow Hall to inspect the poll books, tally sheets and certificates of precinct returns of a special election held in that county on May 9, 1903, upon, the question of issuing bonds to fund the county's indebtedness. Staunton resists the award of a mandamus. The petition say3 Hall demanded such inspection of Staunton, but was refused it-

The petition states that the clerks made a statement from the returns that the bond proposition had carried, but that twomembers of the county court secretly met and caused to be entered on the election record an order declaring that the proposition to issue bonds had not carried, but that said order was false, and that the returns as originally made showed that the proposition had carried, and that the returns had been fraudulently altered. The petition further states that Hall obtained from the circuit court a mandamus nisi against the members of the county court requiring them to convene as a board of canvassers and canvass the returns of said election, on the claim that no canvass had been legally made, and that the circuit court quashed the mandamus nisi and dismissed Hall's petition, with costs, and that Hall had the record copied with a view to applying to the Supreme Court for a writ of error to reverse the judgment of the circuit court; and that he again asked Staunton for an inspection of the said election documents stating that he desired it in connection with said proceeding, but was refused such inspection. The petitioner says that he desires to see the documents particularly for the reason that he had been informed that the result of the election, as it appeared on the election papers, had been changed; and that he believed that the true returns would show that the bond proposition had been carried. The petition states that "the question, of whether or not said writ of error shall be applied for and prosecuted has been under advisement, and petitioner has not decided whether to apply for said writ or to abandon it," and'. that the facts to be ascertained by such inspection would weigh largely in determinig that question. It further states that another object of such inspection was to see whether such forgeries and alterations had been made.

The ruling question is: Does Hall present such a case as calls for a mandamus to compel the clerk to allow the inspection of the election papers? And that question may be narrowed to this question, Will the mandamus avail any useful legal purpose for Hall? In Payne v. Staunton, 46 S. E. page 927, 55 W. Va. 202, we held that one asking a mandamus must show a right vested, in him to be vindicated or aided by the writ.

That is not the question in this case. Conceded that one having, or even contemplating a suit, has a right to inspect records in connection with or in furtherance of it, or even merely to determine upon the advisability of such suit; still he must show that an inspection is necessary; that it will be useful and avail him for that purpose. More plainly yet, the writ will not be granted where it appears that the thing he seeks will answer no legal purpose. In State v. County Court, 47 W. Va. 672, we said that mandamus will only go to secure or protect a clear legal right," and that it will not go "if it would prove fruitless." Authorities are there given for those rules of law. "The court will refuse to grant a mandamus when it is manifest it will be barren and fruitless, or useless, or cannot have a beneficial effect." Cristman, v. Peck, 90 111. 150.

"Mandamus will not be granted where it would be fruitless to afford the relief sought." Laman v. Wilkins, 28 Ark. 34. "The extraordinary writ of mandamus will never be issued in any case where it is unnecessar}^, or where, if issued, it would prove unavailing, fruitless and nugatory. The court will not compel the doing of a vain thing. * * * * A mere abstract right unattended by any substantial benefit to the relator, will not be enforced by mandamus." 19 Am. & Eng. Ency. L. (2d Ed.) 756.

Test the case by these plain law principles. Hall says that he wants this inspection to make up his mind whether he will or will not ask a writ of error from the judgment of the circuit court refusing a mandamus to compel the county canvassers to canvass the returns of the bond election. This is not a satisfactory statesment of actual purpose in asking an inspection.

It does not indicate upon what condition or in what event dependent upon the revelation of snch inspection, he will ask a writ of error. He does not say whether, in any event, he will ask it. H...