Mann v. Mercer County Court
| Decision Date | 16 January 1906 |
| Citation | 52 S.E. 776,58 W.Va. 651 |
| Parties | MANN et al. v. MERCER COUNTY COURT et al. |
| Court | West Virginia Supreme Court |
Submitted November 9, 1905.
Syllabus by the Court.
The duties imposed upon county courts by section 15 of chapter 39 of the Code of 1899, chapter 95, p. 206, of the Acts of 1901, are ministerial.
Such courts cannot prevent action upon a petition filed under said statute at the term at which it is filed by adjourning the term.
Such courts must base their action on the record made in the proceeding, and not upon personal knowledge of their own members not in any way made part of such record.
Knowledge and belief of the members of such court, to the effect that the petition so filed is not signed by the requisite number of legal voters, constitutes no defense upon an application for a mandamus to compel action thereon, when the petition bears the requisite number of signatures and is verified as the statute provides, and no other evidence bearing on the question appears in the record of the proceeding as it remains in said court.
In the absence of a statute conferring it, courts of equity have no power to control, by injunction or otherwise, public officers and tribunals in the exercise of purely legislative or governmental functions.
Fraud perpetrated by private persons in the procurement of the exercise of a legislative or governmental power, of itself affords no ground of equity jurisdiction, unless it is expressly given by statute.
Section 2 of chapter 114 of the Code of 1899, authorizing circuit and county courts to adjourn from day to day until their business is dispatched or until the ends of their terms, does not limit or restrict the common-law powers of such courts to adjourn to a distant day, or, as it is sometimes expressed from time to time, provided the day fixed be not beyond the time to which the term could legally continue.
Section 10 of chapter 114 of the Code of 1899 does not limit the period of time over which a circuit or county court may adjourn. Its purpose is to prevent the loss of a term by reason of the failure of any court to sit on any day appointed by law, or by its own adjourning order, for that purpose.
A court or other tribunal, charged with the performance of a mandatory duty at a given term or session, which adjourns without having performed such duty, may be reconvened and compelled to perform such duty by mandamus; and the act, when so done, will be deemed to have been performed at the term or session at which the law required it to be done.
Mandamus on petition of Edwin Mann and others, against the county court of Mercer county, and others. Writ awarded.
Brown Jackson & Knight and Mollohan, McClintic & Mathews, for petitioners.
C. W. Smith, J. H. Holt, and J. W. Kennedy, for respondents.
On the 31st day of October, 1905, this court, upon the petition of Edwin Mann and 1,939 other citizens and legal voters of Mercer county, awarded a mandamus nisi, directed to the county court of said county and the commissioners thereof, commanding said commissioners to reconvene as such county court, and make and enter an order calling a special election for the determination of the question whether the county seat of said county shall be removed from the town of Princeton therein to the city of Bluefield in said county, and be relocated at said city, in accordance with the prayer of the petition of said Mann and others which had theretofore been presented to said county court. Said petitioners, on the 30th day of September, 1905, presented to the county court their said petition, for the calling of said election, properly verified by affidavit, and accompanied by a bond of $5,000, as required by the statute, and the court permitted the petition and bond to be filed, and made and entered an order directing said election to be held on the 12th day of December, 1905, and then adjourned until the following Tuesday, the 3d day of October, 1905. Upon reconvening on that day it set aside said order upon the motion of James Scott and others, and thereupon the petitioners again presented the petition and bond to the court, and asked that they be filed and an order made providing for the holding of such election, but the court refused so to do. The action of the court in setting aside said order and refusing to re-enter the same was based upon the theory that at the time of its entry, as well as at the time of the application for a re-entry thereof, the court was not legally in session. It had convened in regular session on Wednesday following the second Tuesday in September, 1905, and adjourned from day to day and from time to time until said 30th day of September. Some of these adjournments were for longer periods than three days. One of them was from the 21st day of September until the 26th. On said last-named day an adjournment was taken until the 30th day of September.
The principal defenses set up in the return to the writ were the following: First. The petition presented to the county court did not contain the signatures of a sufficient number of legal voters. Second. An injunction had been awarded by the circuit court of said county inhibiting and restraining the said petitioners from moving for, and said county court and the commissioners thereof from ordering, an election upon the petition of said Mann and others until the further order of the said circuit court. Third. At the time of the presentation of said petition to the county court of said county the regular term thereof at which said petition could have been filed had ceased and ended by operation of law, by reason of the adjournments which had occurred. Fourth. If said term had not so ended, there had been a final adjournment thereof on the 3d day of October, 1905, wherefore it could not be reconvened for the transaction of business which it was its duty to perform at that term.
The proceeding for obtaining the calling of an election for the relocation of a county seat is special and statutory, and the duty of the county court as to it purely ministerial. Doolittle v. County Court, 28 W.Va. 158. Section 15 of chapter 39 of the Code, as amended by chapter 95, p. 206, of the Acts of 1901, prescribes minutely the duty of the county court respecting the same. The petition shall be signed by two-fifths of all the legal voters of the county, to be estimated by allowing one vote for every six persons in the county, as shown by the last preceding census, and an affidavit shall be appended thereto that the petitioners are, as affiant verily believes, legal voters of said county. At the same term at which such petition is filed the court shall make an order that the vote be taken at the next general election to be held in said county upon the question of such relocation at the place named in the petition, if a general election is to be held in that year, and, if none is to be so held, the court shall, at the same session at which the petition is filed, fix a day for, and order the holding of, a special election upon the question of such relocation. A petition containing the requisite number of names, and so verified by affidavit, makes a prima facie case, and if it is not in any way contested, nor the prima facie case thus made overthrown, the court must act upon it as it is. The affidavit is the only proof required, and the court cannot ignore the petition and refuse to act merely because members of it are of opinion that some of the persons whose names appear therein are not legal voters. That the requisite number of names was subscribed to the petition is not denied. The only fact controverted by the answer is that a sufficient number of the petitioners are legal voters. That was a matter to be determined by the county court according to the record as it was in that court at the time it was called upon to act, and, as the record then stood, it was bound to find and determine that the petition was sufficient, because there was no evidence that any person whose name appeared in the petition was not a legal voter. In order to sustain the position taken in this court, it would be necessary for the record, as it remains in the county court, to show that enough of the names subscribed to the petition to reduce the entire number below the requisite two-fifths were names of persons who were not legal voters. There should be at least some evidence tending to rebut the prima facie case made by the petition. Acting upon mere personal knowledge or belief of its own members, not in any way put into the record of the proceeding so as to permit the correctness thereof to be inquired into, the court could not refuse to order the election. The return fails, not only to show anything in the record indicating insufficiency of the petition, in the respect above mentioned, but also that anybody proposes to test its sufficiency by any attack upon it. What the action of this court might be, if it appeared that upon the reconvening of the county court counter affidavits and other evidence would be adduced showing such defect in the petition, we are not called upon to say. No such showing is made.
The function performed by a county court in ordering an election under the statute hereinbefore referred to is legislative or governmental in its nature. It neither concerns nor affects any private right in the legal sense of the terms. Injunction is not a remedy which may be invoked by the citizen for the purpose of controlling public officers or tribunals in the exercise of their functions and powers. In order to sustain it the plaintiff must show that he has a special interest, in respect to which he will suffer a special injury of a private nature. It is not enough that the community in which he...
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