Hamer v. Commonwealth

• Decision Date: 19 September 1907
• Citation: 59 S.E. 400,107 Va. 636
• Parties: HAMER. v. COMMONWEALTH.
• Court: Virginia Supreme Court

59 S.E. 400

107 Va. 636

HAMER.

v.COMMONWEALTH.

Supreme Court of Appeals of Virginia.

Sept. 19, 1907.

1. Writ of Error—Dismissal—Moot Question.

It appearing, in a quo warranto proceeding involving the right to the office of judge of election, that since the writ of error was awarded the issue has become extinct by the term of office in question expiring, the case must be dismissed.

2. Same — Moot Questions — Dismissal of

Cause.

Where it appears there is no actual controversy between litigants, or that, if one existed, it has ceased, a court should dismiss the cause, since it is not their office to give opinions on abstract propositions of law, nor to decide questions upon which no rights depend.

[Ed. Note.—For cases in point, see Cent. Dig. vol. 3, Appeal and Error, § 3122.]

Error to Circuit Court, Alleghany County.

Quo warranto by the commonwealth against one Hamer and others. From the judgment, defendant Hamer brings error. Dismissed.

Geo. A. Revercomb and John T. Delaney, for plaintiff in error.

The Attorney General, for the Commonwealth.

HARRISON, J. This quo warranto proceeding was instituted in September, 1900, by the attorney for the commonwealth, of Alleghany county, to have determined a conflict between certain parties claiming to be judges of election for the Second Ward in the town of Covington.

The plaintiff in error, together with two others, was appointed judge of election for said Second Ward by the electoral board for the county of Alleghany; and their contestants, three in number, were appointed to the same office by the council of the town of Covington. The circuit court of Alleghany county held that those persons appointed as judges of election by the council of the town of Covington were entitled to hold the office and discharge its duties. To that judgment this writ of error was awarded October 8, 1906, upon the petition of one of the parties who had been appointed by the electoral board.

It appears that the term of the office in question has, under the law, expired since this writ of error was awarded. This being so, the issue has become extinct. Neither party is now holding the office for the stated term, or can hold it for such term. There can, therefore, be no judgment of ouster, or the contrary, lawfully rendered, and the case must be dismissed.

Whenever it appears, or is made to appear, that there is no actual controversy between the litigants, or that, if it once existed, it has ceased, it is the duty of every judicial tribunal not to proceed to the formal determination of the apparent controversy, but to dismiss the case. It is not the office of courts to give opinions on abstract prop...