Moore v. Judge

• Decision Date: 29 March 1904
• Citation: 55 W.Va. 507,47 S.E. 251
• Court: West Virginia Supreme Court
• Parties: MOORE et al. v. HOLT, Judge, et al.

47 S.E. 251

55 W.Va. 507

MOORE et al.

v.HOLT, Judge, et al.

Supreme Court of Appeals of West Virginia.

March 29, 1904.

.CIRCUIT COURT—JURISDICTION—ELECTION CONTEST—PROHIBITION.

1. Circuit courts have no original jurisdiction of election contests or recounts, nor authority to prevent by writ of prohibition a person who claims to have been elected to an office from taking the same and assuming and exercising its powers and duties, on the ground of invalidity of the election or ineligibility of the party claiming the office, and by awarding such writ in such case a judge of such court subjects him self to a writ of prohibition from the Supreme Court of Appeals.

2. The writ of prohibition lies only to inferior courts, boards, officers, or tribunals having judicial or quasi judicial powers, to confine them within their respective jurisdictions. It cannot be invoked against individuals in respect to rights claimed by or asserted against them.

3. By its writ of prohibition a court acquires no jurisdiction of a controversy concerning the title to an office.

4. Besides having jurisdiction of the class of causes to which a given cause of action belongs, a court must obtain cognizance of the particular cause by requisite process before it can hear and determine it.

(Syllabus by the Court.)

Application by J. H. Moore and others for a writ of prohibition to Moses Ferguson and others. Writ awarded.

W. B. Maxwell and D. H. Hill Arnold, for petitioners.

Jerad L. Wamsley, for respondents.

POFFENBABGER, P. J. H. Moore and others pray for a writ of prohibition to prevent the Honorable John Homer Holt, judge of the circuit court of Randolph county, from further proceeding upon a petition and rule in prohibition pending in his court. Upon the petition of Moses Ferguson, C. W. Wilmoth, J. G. Coberly, and L. J. Hyre, members of the council of the town of Montrose, in said county, Elihu Wilmoth, recorder of said town, and others, representing that the annual election of municipal officers of said town held on the 7th day of January, 1904, at which it was claimed and pretended J. H. Moore had been elected mayor, C. B. Hyre recorder, and O. B. Hyre, E. H. Moore, N. A. Moore, W. Hoffman, and W. H. Sidwell councilmen, was void because illegally conducted, only five or six persons having voted, and two of the commissioners who conducted the election having been candidates for whom votes were received and counted in said election, said judge awarded a rule, returnable on the 1st day of February, 1904, requiring the said J. H. Moore, C. B. Hyre, O. B. Hyre, E. H. Moore, and N. A. Moore to show cause why a writ of prohibition should not be awarded prohibiting and restraining them from assuming and exercising the powers and duties of the offices to which they claim to have been elected. On the 2d day of February, 1904, the defendants appeared, and filed a demurrer to the petition, In which the plaintiffs joined, and the court took time to consider of its demurrer. Thereupon the defendants Moore and others made the application aforesaid to this court.

The case Is substantially the same as that of Board of Education v. Holt et al. (W. Va.) 46 S. E. 134. They differ only in this: that in Board of Education v. Holt it was sought to prohibit persons in office from further exercise of official powers, while here the object Is to prevent certain persons from taking offices. In the case above referredto this court decided that prohibition is not a remedy by which the title to an office may be determined, nor one by which a person can be ousted from, or prevented from entering upon, an office. In the opinion Judge Dent says: "Such use of prohibition is plain usurpation of and abuse of judicial functions." Prohibition lies from a superior to an inferior court or an inferior board or tribunal having judicial or quasi judicial powers, to prevent any act on its part in excess of its jurisdiction. Its office is to supervise the action of such inferior tribunals by confining them within their respective jurisdictions. Hence it must always be awarded against such court and the parties unlawfully proceeding in it, and not against private individuals only, as in this case, where it could perform no function other than the determination of controversies between adverse claimants to an office or to property, or enforce performance of a duty, vindicate a right, or redress a wrong. In contests between individuals other remedies which the law affords must be resorted to. They cannot claim the benefit of one which has been provided for the sole purpose of preventing courts from acting without, or in excess of, jurisdiction; nor can a superior court, having power to award the writ, properly use it for any purpose...