Harrison v. Barksdale

Decision Date30 March 1920
Citation102 S.E. 789
CourtVirginia Supreme Court
PartiesHARRISON et al. v. BARKSDALE, Judge.

[Ed. Note.—For other definitions, see Words and Phrases, First and Second Series, Majority.]

Original petition for mandamus by Randolph Harrison and others against Hon. William R. Barksdale, Judge of the Circuit Court of the City of Lynchburg. Mandamus denied.

This is a proceeding instituted by the petition of Randolph Harrison and others, citizens, taxpayers, and qualified voters of the city of Lynchburg, praying of this court a writ of mandamus to compel the respondent, Hon. Wm. R. Barksdale, to enter an order precisely contrary in its purport to the order which was in fact heretofore entered by him in the case.

The case involves a special election held in the city of Lynchburg on November 4, 1919, under the statute (Acts 1914, p. 165, as amended by Acts 1916, p. 672, and Acts 1918 p. 402), which was enacted In pursuance of section 117 of the Constitution as amended in 1912, providing, among other things, for a change in the previously existing form of government of cities and towns to the plan known as the "city manager plan."

The Constitution, as amended as aforesaid, in so far as material to be stated here, provides that the changed form of government aforesaid shall not become operative except as to such cities or towns as may thereafter adopt the same "by a majority vote of its qualified electors at an election to be held as may be prescribed therefor by law."

The statute aforesaid, In so far as material to be here stated, provides that special elections for the purpose aforesaid may be ordered by the circuit court having jurisdiction over the municipality "upon the petition of electors, equal in number to at least ten per centum of those qualified to vote at the last preceding general election at which a mayor or council was elected, " and provides also that such special elections shall be conducted in the manner prescribed by law for the conduct of regular elections and by the regular election officers of the municipality, for secret ballot, and for the form of the ballot, after which the statute continues as follows:

"Returns of the election shall be certified by the commissioners of election, or their clerk, to the court, or the judge thereof in vacation; and if it shall appear that the proposed change has not been adopted by a majority vote of the qualified electors, an order shall be entered of record accordingly, * * * but if the said proposed change is adopted by a majority vote of the qualified electors, the court or judge thereof, shall enter an order accordingly, a copy of which shall be forthwith certified by the clerk of such court to the council of such city or town for recordation upon its journal." Acts 1918, pp. 403, 404.

From the proceeding in which the special election aforesaid was ordered it appears from evidence consisting of certificates of registrars and of the clerk of the corporation court of said city and the affidavit of one Peter O. Adams that those qualified to vote at the last preceding general election aforesaid theretofore held were in number, so far as disclosed by the evidence adduced, 3, 191, but at most could not have exceeded 4, 000; that more than 10 per cent, of that number, namely, 600, had petitioned for the election; and that the election was accordingly ordered by said court.

It appears from the returns of the special election held as aforesaid on November 4, 1919, certified by the commissioners of election, that the total number of votes cast was 1, 208, of which 774 were for and 434 against the proposed change in the municipal government.

No question is raised in the case on thesubject of whether those who cast the said 1, 208 votes were all qualified electors of the city of Lynchburg, and that they were such electors seems to be a concessum in the case.

Accompanying the petition for mandamus Is evidence, consisting of the certificates and affidavits of registrars and the certificate of the clerk of the corporation court of the said city, tending to show that the electors of the city registered and otherwise qualified to vote at said special election on November 4, 1919, were in number approximately 3, 981, and were at least as many as 3, 191, the number, as disclosed by the evidence adduced, who were qualified to vote at the preceding general election theretofore held as aforesaid.

The petitioners appeared before the respondent, by his permission, as amici curia}, prior to his action on the election returns and certificate of the commissioners of election aforesaid, and presented to him the same evidence mentioned in the paragraph next above, and urged upon him the position which is the same as that taken in the petition for mandamus, that it appeared that the proposed change in the city's form of government had not been adopted by a majority vote of the electors as required by the provisions on that subject of the Constitution and statute law aforesaid, and that therefore it was the duty of respondent under the statute to enter an order of record accordingly. Respondent, however, took a different view of the matter, declined to consider the evidence presented to him as aforesaid or any other extraneous fact or facts outside of the certificate of the commissioners of election aforesaid, and, in vacation, entered the following order:

'"The commissioners of election for the city of Lynchburg having certified to the court the returns on the election held in the city of Lynchburg on the 4th day of November, 1919, heretofore ordered on the proposed change in form of municipal government from the existing form to that known as the 'city manager plan' as defined and prescribed by acts of assembly of 1910 and 1918, and it appearing from said returns that 774 votes were cast in favor of the change in the form of municipal government, and that 434 votes were cast against the change in the form of municipal government, and the court having heard argument by Leon Goodman for the petitioners, and Volney E. Howard, A. R. Long, Don P. Halsey, and Randolph Harrison, amici curbs, as to the meaning of the words 'majority vote of its qualified electors, ' as used in the Constitution (section 117) and Acts of the General Assembly 1918 (page 402), counsel for petitioners contending that.a majority of the electors voting was sufficient under the law to cause a change in the form of present municipal government of Lynchburg, and counsel acting as amici curiae contending that no such change in the present form of municipal government had been adopted by reason of the fact that a majority of all the qualified electors bad not voted in favor of said change, and the court, having fully considered the arguments, being of opinion that said votes so cast in favor of the change in the form of municipal government constitute in contemplation of law a majority of the qualified electors of said city, the court doth order that said change in the form of municipal government is adopted by a majority vote of the qualified electors of the said city of Lynchburg.

"The clerk of this court is hereby directed to forthwith certify a copy of this order to the council of the city of Lynchburg for recordation upon its journal, as required by law.

"The clerk of this court is directed to enter this order upon the records of this court, and the same is certified to him for entry as a vacation order."

Harrison & Long, Don P. Halsey, and Volney E. Howard, all of Lynchburg, for petitioners.

Harper & Goodman, of Lynchburg, for respondent.

SIMS, J. (after stating the facts as above). The questions presented by the record for decision will be disposed of in their order as stated below.

We are confronted at the outset with a question of procedure, namely:

1. If the position of the petitioners were well taken, and it was the duty of the respondent to have entered a contrary order from that which he did enter, would mandamus lie to compel him to do so?

This question must be answered in the affirmative.

In view of the full discussion of this subject in the opinion of this court delivered by Judge Burks in the case of the City of Roanoke v. Elliott, 123 Va. 393, 96 S. E. 819, we here refer thereto, and will add to that opinion at this point only such additional matter as seems appropriate in view of the positions taken and the authorities cited for respondent in the case in judgment.

The jurisdiction which this court exercises, under the statute in such case made and provided, in the matter of mandamus, is coextensive with that exercised at common law by the Court of King's Bench in England. Clay v. Ballard, 87 Va. 787, 789, 13 S. E. 262. j The duty of respondent in question, if it exists, is a public duty; and, since the case of I Rex v. Railroad Company, 2 Barn. & Aid. 646, it has been uniformly held that mandamus will lie, at the suit of a private individual, although the latter is without any special or pecuniary interest which is affected, to enforce a public ministerial duty imposed on the respondent by statute. Union Pacific R. Go. v. Hall, '91 U. S. 343, 23 L Ed. 428, 432.

The same principle has been applied in West Virginia in the holding that mandamus will lie at the suit of a citizen, voter, and taxpayer to compel the council of a town and the county court of a county to perform a ministerial duty imposed by statute of causing an election to be held. State v. Town of Davis, 76 W. Va. 587, 85 S. E. 779, 7S0; Frantz v. Wyoming County, 69 W. Va. 734, 73 S. E. 328; and other West Virginia cases therein cited.

In opposition to the conclusion which we have above reached on the question under consideration, it is urged in argument before us, however, that the office of a mandamus is to compel the performance of some act which has not been performed, and that it does not lie to compel a respondent to undo what he has already done, that in the latter case the respondent has become functus officio, with no...

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12 cases
  • State Ex Rel Keith 0. Bumgardner v. Mills, (No. 10148)
    • United States
    • West Virginia Supreme Court
    • 22 March 1949
    ...W. Va. 703, 136 S. E. 772; State ex rel. Matheny v. County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959. See Harrison v. Barksdale, 127 Va. 180, 102 S. E. 789; Town of Strasburg v. Winchester and Strasburg Railroad Company, 94 Va. 647, 27 S. E. 493; State ex rel. Ryan v. Miller, 82 ......
  • In re Com.
    • United States
    • Virginia Supreme Court
    • 4 June 2009
    ...like a writ of error or appeal, a remedy for erroneous decisions." 160 Va. at 498, 169 S.E. at 593; see also Harrison v. Barksdale, 127 Va. 180, 188-89, 102 S.E. 789, 792 (1920). We restated this elemental precept in Richlands Medical Ass'n v. Commonwealth, 230 Va. 384, 387, 337 S.E.2d 737,......
  • State Ex Rel. Bumqardner v. Mills, 10148.
    • United States
    • West Virginia Supreme Court
    • 22 March 1949
    ...102 W.Va. 703, 136 S.E. 772; State ex rel. Matheny v. County Court of Wyoming County, 47 W. Va. 672, 35 S.E. 959. See Harrison v. Barksdale, 127 Va. 180, 102 S.E. 789; Town of Strasburg v. Winchester and Strasburg Railroad Company, 94 Va. 647, 27 S.E. 493; State ex rel. Ryan v. Miller, 82 W......
  • State ex rel. Bumgardner v. Mills
    • United States
    • West Virginia Supreme Court
    • 22 March 1949
    ...102 W.Va. 703, 136 S.E. 772; State ex rel. Matheny v. County Court of Wyoming County, 47 W.Va. 672, 35 S.E. 959. See Harrison v. Barksdale, 127 Va. 180, 102 S.E. 789; Town of Strasburg v. Winchester and Strasburg Company, 94 Va. 647, 27 S.E. 493; State ex rel. Ryan v. Miller, 82 W.Va. 490, ......
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