Martin v. White

• Decision Date: 30 June 1914
• Citation: 82 S.E. 505,74 W.Va. 628
• Parties: MARTIN ET AL. v. WHITE ET AL.
• Court: West Virginia Supreme Court

82 S.E. 505

74 W.Va. 628

MARTIN ET AL. v. WHITE ET AL.

Supreme Court of Appeals of West Virginia.

June 30, 1914

Syllabus by the Court.

To admit one to office by mandamus a clear legal right to the office must be shown by the claimant.

By statute, Code 1913, ch. 47, sec. 23 (sec. 2404), a town council may judge of the election and qualification of its own members, but it can not do so validly without notice to him whose election or qualification is questioned.

One claiming office as member of a town council on the ground that another entitled thereto by the face of the returns has by the judgment of the council been declared disqualified to hold the office, does not show legal right to the same when the judgment of disqualification is void.

Where by Code 1913, ch. 47, sec. 23 (sec. 2404), a town council is the tribunal to judge of the election and qualification of its own members, the question whether in fact one is qualified to be a member of the council is not cognizable in mandamus.

Error to Circuit Court, Wetzel County.

Application by J. E. Martin and others for writ of mandamus against J. B White and others. Judgment for plaintiffs, and defendants bring error. Reversed, and judgment rendered.

Robinson & Robinson, of Wheeling, and Larrick & Lemon, of New Martinsville, for plaintiffs in error.

J. F Throckmorton, of Hundred, and M. H. Willis, of New Martinsville, for defendants in error.

ROBINSON J.

Martin and Kearns by mandamus demand admission to the offices of mayor and councilman, respectively, of the town of Hundred, a municipal corporation under the provisions of chapter 47 of the Code of West Virginia. A judgment below awards the petitioners the peremptory writ. The respondents prosecute error.

The petitioners were candidates at a regular town election to succeed themselves in the offices named. The town council as a canvassing board found that the competitors of petitioners for the offices had received the highest number of votes. Immediately after the canvass of the returns the council adjourned as a canvassing board and reconvened in council meeting. Objections were at once entered to issuing certificates of election to White, who had received the highest number of votes for mayor, and to Mayne, Booth, Kuhn and Zimmerman, who on the face of the returns were elected as councilmen. These objections were based on disqualification under the following provision of the statute:

"No person shall be qualified to hold the office of mayor, recorder, or councilman of such city, town or village unless he is a legal voter and was for the preceding year assessed with and paid taxes upon at least one hundred dollar's worth of real or personal property therein."

Code 1913, ch. 47, sec. 13 (sec. 2394). The council sustained the objections entered, held White, Mayne, Booth, Kuhn, and Zimmerman to be disqualified, declared that those who had received the next highest number of votes were elected, and ordered certificates of election to be issued to them. But, notwithstanding this action of the council, White and the others took their oaths of office as mayor and councilmen, respectively, and, with the duly elected recorder and a duly elected councilman as to whom no objections of disqualification were entered, proceeded to act as the council of the town. They have ever since acted as such. Petitioners claim that White and the others who were declared to be disqualified are intruders into the offices.

1. That in the Virginias mandamus lies to admit to office one who shows the legal right thereto, there can be no question. It is sometimes said that title to office may be settled by mandamus. This statement is not accurate. There are many contests for office which can not be settled by mandamus proceedings. It is where one's title to an office is as a matter of law settled that mandamus because of his legal right will admit him thereto. An examination of the subject throughout the cases will lend support to no other view. The gist of it all is that to admit one to office by mandamus, or, to use the inaccurate expression, to settle title to office by that remedy, a clear legal right to the office must be shown by the claimant. It is a basic principle in mandamus that the relator or petitioner must show a clear legal right to what he demands. Hutton v. Holt, 52 W.Va. 672, 44 S.E. 164; Moses on Mandamus, 124; Merrill on Mandamus, sec. 56.

Then do petitioners show clear legal rights to the offices they demand? They say they are entitled because the so-called intruders were declared disqualified under the statute. They maintain that as holdovers they are entitled as against those who were declared disqualified. But assuming that as holdovers petitioners are entitled to claim as against those returned as elected but declared to be disqualified, we are of opinion that disqualification of those returned as elected has not been legally established, and that by the face of the returns as canvassed they have prima facie rights to the offices they now fill. Until the disqualification of those who were found to be elected on the face of the returns is established according to law, petitioners clearly do not show themselves entitled. The prima facie rights of...