McMillin v. Neely

• Citation: 66 S.E. 635,66 W.Va. 496
• Parties: McMILLIN v. NEELY, Mayor, et al.
• Decision Date: 14 December 1909
• Court: Supreme Court of West Virginia

66 S.E. 635

66 W.Va. 496

McMILLIN v. NEELY, Mayor, et al.

Supreme Court of Appeals of West Virginia.

December 14, 1909

Submitted June 10, 1909.

Syllabus by the Court.

The provision of the charter act of the city of Fairmont passed in 1899 (Laws 1899, p. 41, c. 11), demanding freehold qualification for a councilman, is constitutional.

That provision of the charter act of the city of Fairmont, passed in 1899, that "the majority of the whole number of officers mentioned in the third section of this act shall be necessary to the transaction of any business whatever" (Laws 1899, p. 47, c. 11, § 13) is intended only to demand such majority for a quorum for business, and does not require a majority of the whole number for ordinary business, if such quorum be present.

Application by C. E. McMillin for writ of mandamus against Mansfield M Neely, Mayor, and others. Writ refused, and alternative writ dismissed.

H. N Ogden and Tusca Morris, for petitioner.

Charles Powell, for respondents Thomas V. Buckley and others.

James A. Meredith and John Henshaw, for respondents M. M. Neely Mayor, and others.

BRANNON J.

C. E McMillin was elected 21st March, 1908, as councilman of the city of Fairmont, and was duly declared elected, took the oath of office, was admitted as a member by the city council, acted as such for months. Later a citizen filed with the council a petition alleging that McMillin was incompetent to hold the office because of not being a freeholder at the time of his election. The council tried the matter, and by a vote of five to four declared the office of councilman held by McMillin as vacant, acting under section 15 of the city charter, providing that if any person elected as councilman should be ineligible, the council for the time being could declare his office vacant. The charter act provides that: "No person shall be eligible to the office of mayor, city clerk or councilman unless he is a freeholder." McMillin asks a mandamus to compel his admission as councilman.

The council under the charter consisted of the mayor and 10 councilmen; the mayor having a vote only in case of tie. The charter contains this provision that. "The majority of the whole number of officers mentioned in the third section of this act shall be necessary to the transaction of any business whatever." The officers here mentioned are the mayor and the councilmen, the mayor and 10 councilmen. The vote by which McMillin's office as councilman was declared vacant, operating to remove him from office, was five for and four against such declaration. It is contended that a majority of the whole number of the council not having voted to declare the place vacant, the order of the council is void; but in this we cannot concur. The provision that a majority of the members shall he required to transact business does not mean that such majority must vote in favor of each and every act or action, great or small. Such a construction would be unusual, inconvenient, and detrimental to public interest. It means only to require a majority for a quorum. Wood v. Gordon, 58 W.Va. 321, 52 S.E. 261, does not support the plaintiff on this point. The charter in that case, as to the specific act of filling a vacancy in the council, provided that "the council shall by a majority vote of all members elected, fill the vacancy"--different from our case.

Plaintiff's counsel brings up for reconsideration the provision in the charter act of the Legislature that councilmen must be freeholders, claiming that it is unconstitutional. My own opinion is that it is, as I insisted in State v McAllister, 38 W.Va. 497, 18 S.E. 770, 24 L. R. A. 343; but this court has again held such provision valid. Kahle v. Peters, 64 W.Va. 400, 62 S.E. 691. McMillin, when elected, and when inducted into office, was not a freeholder. This charter says that "no person shall be eligible" to the office of councilman "unless a freeholder." In the McAllister Case I thought that under such a provision it would suffice if the person be a freeholder at the beginning of his term, but that decision shut him out if not qualified at his election. But McMillin was not a freeholder at the commencement of his term. Two days before the election Traugh conveyed to McMillin real estate; but by deed of that same date McMillin conveyed it back to Traugh, and delivered the...