Hertzog v. Fox, 10824

• Decision Date: 19 June 1956
• Docket Number: No. 10824,10824
• Citation: 93 S.E.2d 239,141 W.Va. 849
• Parties: Virgil R. HERTZOG v. H. M. FOX, Mayor of the Town of Worthington, et al.
• Court: West Virginia Supreme Court

Page 239

93 S.E.2d 239

141 W.Va. 849

Virgil R. HERTZOG v. H. M. FOX, Mayor of the Town of Worthington, et al.

No. 10824.

Supreme Court of Appeals of West Virginia.

Submitted June 5, 1956.

Decided June 19, 1956.

Syllabus by the Court.

1. Mandamus is the proper remedy to admit or restore to office a person who shows a clear legal right to an office and is wrongfully excluded from it.

2. A person who has been duly elected a member of the council of a municipality and who has taken and subscribed the oath of office within twenty days after his election has been ascertained and declared and before he enters upon the duties of the office is prima facie entitled to the office; and if he is wrongfully excluded from such office mandamus lies to admit him to it.

3. A person who has been duly elected a member of the council of a municipality and who takes and subscribes the oath of office within twenty days after his election has been ascertained and declared and before he enters upon the duties of the office, but who does not file such oath and the certificate of the person administering it in the office of the recorder of the municipality until twenty two days after his election has been ascertained and declared and who does not file a certified copy of such oath and certificate in the office of the clerk of the county court of the county until approximately four months after his election has been ascertained and declared substantially complies with the requirements of Section 11, Article 3, Chapter 8, Code, 1931, and is prima facie entitled to hold and occupy the office to which he was elected.

4. Under Section 11, Article 3, Chapter 8, Code, 1931, a person elected to a municipal office qualifies for such office when he takes and subscribes the oath of office within twenty days after his election has been ascertained and declared; and his failure to file such oath and the certificate of the person administering it in the office of the recorder of the municipality and to file a certified copy of such oath and certificate in the office of the clerk of the county court of the county within twenty days after his election has been ascertained and declared does not deprive him of his right to, or create a vacancy in, such office.

5. The council of a municipality is authorized to determine the election and the qualification of its members; but its action in determining such matters is not valid if no notice or no opportunity to be heard is given to the person whose election or qualification is questioned.

6. Though relief by mandamus may be refused when the petitioner has been guilty of unreasonable delay and the rights of the defendant or of innocent third parties will be prejudiced by the issuance of the writ, the circumstances surrounding the delay, the character of the case, the situation of the parties, the nature of the relief sought, and whether the rights of third parties have been innocently acquired, should be considered in determining whether the delay is unreasonable and justifies application of the equitable doctrine of laches; and what constitutes laches depends upon the facts and the circumstances of each particular case.

7. A petitioner in a proceeding in mandamus who in June, 1955, is duly elected a member of the council of a municipality for a term of two years from July 1, 1955, who qualifies for that office within twenty days after his election has been ascertained and declared and before he enters upon the duties of the office, who appears at the first meeting of the council on July 18, 1955, for the purpose of occupying such office and over his protest is wrongfully excluded from such office, and who at no time indicates an intention to relinquish or abandon such office, but who does not institute a proceeding in mandamus to obtain possession of such office until December 22, 1955, is not by laches barred from the relief sought in such proceeding when it does not appear that the issuance of the writ will prejudice any right of the members of the council, or of the person wrongfully appointed by it in the place of the petitioner, or of any other person.

A. Blake Billingslea, Harrison Conaway, Fairmont, for plaintiff in error.

Amos, Amos & Webb, Benjamin H. Webb, Fairmont, for defendants in error.

HAYMOND, Judge.

This is a proceeding in mandamus instituted in the Circuit Court of Marion County, in December 1955. The petitioner, Virgil R. Hertzog, seeks a writ to require the defendants, H. M. Fox, Mayor of the town of Worthington, West Virginia, C. L. Sturm, Recorder, J. M. Barr, L. D. Baker, Frank Mayo and Joe Martino, Councilmen, to permit him to occupy the office of councilman of the town of Worthington, to which he was elected in June, 1955, and to which he claims to be entitled, and to require the defendant Kenneth Willis, the present occupant, to deliver possession of that office to the petitioner.

The circuit court overruled the motion of the defendants, H. M. Fox, Mayor, C. L. Sturm, Recorder, L. D. Baker, Joe Martino, and Kenneth Willis, to dismiss the petition and their demurrer to the petition as amended; and, the proceeding having been heard upon the petition as amended, the joint and several answer of the designated defendants, the general replication of the petitioner to the answer of those defendants, and a written stipulation of agreed facts filed by all the parties which included certain exhibits, the circuit court, by final order entered March 15, 1956, refused to grant the relief prayed for by the petitioner, dismissed this proceeding, and entered judgment against the petitioner for costs.

To the final judgment of the circuit court this Court issued this writ of error upon the application of the petitioner on April 23, 1956, and on April 30, 1956, granted the motion of the petitioner for leave to move to reverse the final judgment of the circuit court.

The material facts are not disputed and, as the election of the petitioner to the office of councilman of the town of Worthington is conceded, the controlling question is whether petitioner has lost his right to hold that office by failing to qualify within the time and in the manner provided by law.

At a regular election held in the town of Worthington, Marion County, West Virginia, on June 7, 1955, petitioner was elected a member of the council of the town and on June 13, 1955, the town council, sitting as a board of canvassers, completed its canvass of the election returns and entered in the minutes of the council that the petitioner had been duly elected to the office of councilman but whether it did or did not issue and deliver to the petitioner a certificate of the result of the election does not clearly appear. On June 16, 1955, however, the petitioner received, presumably from the recorder of the town, a form of oath designated 'Oath of Office' and on June 24, 1955, he took and subscribed the oath of office before a notary public of Marion County. The petitioner did not file the oath of office and the certificate of the officer administering it in the office of the recorder of the town until July 5, 1955, which was twenty two days after the declaration by the board of canvassers of his election, and he did not file a certified copy of such oath and certificate in the office of the clerk of the county court of Marion County until September 16, 1955.

The term for which the petitioner was elected was for two years from July 1, 1955. Though the first regular meeting of the new council was fixed by an ordinance for the first Monday in July, which was July 4, the first meeting of the council was not held until July 18, 1955. At that meeting of the council, on motion of a member, duly seconded, the office of the petitioner as a member of the council was declared by a vote of three to two to be vacant on the ground that the petitioner had not filed the oath of office in the office of the recorder of the town until July 5, 1955, which was twenty two days after the result of the election had been declared and entered of record. The petitioner was present at the meeting and he objected to the action taken by the council in vacating his office. No prior notice that any action to declare the office of the petitioner vacant would be taken at that meeting of the council was given to the petitioner. A representative of the Citizens Party also appeared in behalf of the petitioner and objected to the action of the council in declaring the office of the petitioner vacant for the stated reason that no prior notice of such action had been given to the petitioner and informed the council that the matter would be litigated in the courts.

At a subsequent regular meeting of the council held on August 15, 1955, a motion by a member that the defendant Kenneth Willis, who had been an unsuccessful candidate at the June election, be appointed a member of the council to fill the vacancy resulting from the action of the council on July 18, 1955, was seconded and adopted by a vote of three to one. Following the foregoing action of the council the defendant Kenneth Willis has acted and continues to act as a member of the council in the place and stead of the petitioner who has not been permitted by the council to occupy the office to which he was elected.

On December 22, 1955, the petitioner instituted this proceeding in the circuit court.

If the petitioner is entitled to hold and occupy the office of councilman to which he was duly elected in June, 1955, the writ should be awarded for it is well settled in this jurisdiction that mandamus is the proper remedy to admit or restore to office a person who shows a clear legal right to an office and is wrongfully excluded from it. Stowers v. Blackburn, W.Va., 90 S.E.2d 277; State ex rel. Rogers v. Board of Education of Lewis County, 125 W.Va. 579, 25 S.E.2d 537; State ex rel. Thomas v. Wysong, 125 W.Va. 369, 24 S.E.2d 463; State ex rel. Lambert v. Board of Canvassers of Nicholas County, ...