. Kline v. McKelvey.
| Decision Date | 24 January 1905 |
| Citation | 57 W.Va. 29 |
| Parties | . Kline v. McKelvey. |
| Court | West Virginia Supreme Court |
Mandamus lies to compel the admission or restoration to office of the party having a clear prima facia right thereto, shown by a commission, certificate or other legal evidence thereof. (p. 30.)
Such writ will be awarded directly against one who, under seclion 2 of chapter 7 of the Code, holds over after the expiration of the term for which he was elected or appointed, to compel him to yield the office to the person elected or appointed to succeed him. (p. 31)
2. Public Officer Vacancy in Office Under Statute.
Incumbency of an office, by holding over under said statute, does not preclude the existence of a vacancy as a basis for the exercise of the appointive power under section 5 of chapter 45 of the Code.
(p. 33.)
Error to Circuit Court, Tucker County.
Action by Joseph Kline against R. C. McKelvey. Judgment for defendant, and plaintiff brings error.
Reversed. Mandamus Awarded.
C. O. Strieby, Conley & Smith and P. J. Crogan for plaintiff in error.
Cunningham & Stallings, for defendant in error. Poffenbarger, Judge:
This case presents, upon a writ of error to a judgment of the circuit court of Tucker county, the question whether mandamus lies to obtain admission to an office by a person elected or appointed thereto against another person holding over under the claim that his successor has not been elected and qualified.
The controversy arises between Joseph Kline, who, in November, 1903, was elected to membership in the Board of Education for the District of Davis in Tucker county, but failed to qualify within the time required by law, and was afterwards appointed by the superintendent of free schools of said county, to the same position for the term for which he had been elected, on one side; and R. G. McKelvey, who, at the time of the election, held the office by appointment to fill a previous unexpired term thereof and refused, upon the demand of Kline, to surrender the office to him, on the other. McKelvey's only claim of title is the authority given, by the statute, to every officer to hold his position " until his successor is elected or appointed and qualified." Section 2, chapter 7, Code.
The scope of the writ of mandamus in controversies concerning" the title to office has not been very clearly defined in this state, though there are several cases illustrating such use of it. The most important of these are Bridges v. Shatteross, 6 W. Va. 562, Goff v. Wilson, 32 W. Va. 393, SchmuTbach v. Speidel, 50 W. Va. 553, and Dew v. Judges, 3 Hen. & Munf. 567. It has often been judicially declared that mandamus is a proper remedy for the trial of title to office, and will lie where there is another appropriate remedy, because it is more speedy, and therefore a more adequate, remedy. Banton v. Wilson, 4 Tex. 400; Lindsey v. Luckett, 20 Tex. 516; Harwood v. Marshall, 9 Md. 83; Strong's Case, 20 Pick. 484; Conlin v. Aldrich, 98 Mass. 557: Dew v. Judges, cited. On the contrary, it is more generally declared that mandamus is not the remedy for trial of title to office. People v. Olds, 3 Cal. 167; Meredith v. Supervisors, 50 Gal. 433; Warner v. Myers, 4 Ore. 72; People v. New York, 3 John. Gas. 79; People v. Stevens, 5 Hill (N. Y.) 616; Matter of Gardner, 68 N. Y. 467; Denver v. Hobart, 10 Nev. 28; Brown v. Turner, 70 N. G. 93; Fitch v. McDiarmid, 26 Ark..482; Underwood v. White, 27 Ark. 382; People v. Treasurer, 36 Mich. 416; State v. Auditor, 34 Mo. 375; People v. Detroit, 18 Mich. 338; People v. Head, 25 Ill. 325; State v. Dunn, 12 Am. Dec. 1.
For the purposes of this case it suffices to say that the writ of mandamus is a proper remedy for the admission or restoration to office of one who holds the clear legal prima facie right to it. Upon this proposition, all the authorities agree. See State v. Dunn, 12. Am. Dec. 25, and the able and exhaustive note, reviewing the cases, at page 28. No case decided by this Court seems to go beyond this limit, nor is any instance recalled in which the jurisdiction by mandamu has been held to stop short of it. A mandamus was refused in State v. Thompson & Mc Callister, 38 W. Va. 485, but the decision turned upon the peculiar nature of the controversy, it being one in which a town council had refused to admit one who had been elected to membership in that body, on the ground of his ineligibility. As that case materially differs from this in its facts and the relations subsisting between the parties, the principle there announced does not bar the remedy in this case, and may not contravene the general principles above announced.
Often the conditions under which the writ is awarded are different from those presented in this case. In Dew v. Judges, cited, it was directed, not to the wrongful incumbent of the office, but to the court whose duty it was to admit or restore the clerk. This relationship is characteristic of the larger number of the reported cases. But the writ may be invoked directly against the person holding the office, requiring him to admit thereto his successor; for it is a part of his official duty to turn over to his successor the books, papers and property belonging to the office and the insignia thereof. Thus, in Bridges v. Shallcross, cited, and in Goff v. Wilson, 32 W. Va. 393, the respondents were, respectively, Shallcross and Wilson, the parties holding the offices in question. In the former, Shallcross was in office by appointment of one board and Bridges claimed the office by a subsequent appointment of another board, and the test of the right of the petitioner was the constitutionality of the legislative act in pursuance of which his appointment was made. Neither of the two boards, asserting conflicting authority respecting the appointment, was made a party to the proceeding, and the whole matter was settled upon the issue made between the incumbent of the office and the party who claimed as his successor. In the former case, the office in question was independent of the power of appointment by any inferior board or tribunal. In these cases the remedy was invoked against persons who had lawfully and rightfully occupied the offices and were holding over after the expiration of their terms, awaiting the election or appointment and qualification of their successors. Such also is the present case, and the authorities uniformly hold that, under such conditions, the writ of mandamus will go, at the instance of the person entitled to the office, directly against the incumbent thereof, to compel him to yield to his successor. Walter v. Belding, 24. Vt. 658; Burr v. Norton, 25 Conn. 103; Winner v. Myers, 4 Ore. 72; People v. Bead, 25 Ill. 325. In this respect the case of Schmulbach v. Speidel, 50 W. Va. 553, may be regarded as going further, since the respondents therein were not holding over, but had ousted the petitioners from their offices. Whether, by holding mandamus to be a proper remedy in such case, any rule was violated, it would be useless now to inquire, but authority is not wanting for the proposition that the writ will go against an intruder...
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