Morgan v. Wetzel County Court
| Decision Date | 25 April 1903 |
| Parties | MORGAN et al. v. WETZEL COUNTY COURT. |
| Court | West Virginia Supreme Court |
Submitted March 18, 1903.
Syllabus by the Court.
1. A writ of mandamus lies to compel a county court to convene and ascertain and declare the result of a vote upon the relocation of a county seat, where it has failed and refused to do so.
2. An injunction does not lie to restrain ballot commissioners from putting on the ballots to be used at a general election the question of the relocation of a county seat, when the county court has made an order submitting such question to vote. Such an injunction is null and void, and does not render invalid a vote upon such question.
3. An injunction does not lie to restrain the holding of a public election authorized by law.
Error to Circuit Court, Wetzel County; M. H. Willis, Judge.
Action by B. L. Morgan and others against the county court of Wetzel county. Judgment for defendant, and plaintiffs bring error. Reversed.
B. L Butcher, for plaintiffs in error.
T. P Jacobs and E. B. Snodgrass, for defendant in error.
The county court of Wetzel county submitted to the voters at the general election in November, 1900, the question of the relocation of the county seat. Certain citizens and taxpayers obtained an injunction against the ballot commissioners restraining them from putting on the ballots to be used at the election the question of the relocation of the county seat at Pine Grove, and they did not put the question on the ballots used at the general election. However, voters voted upon that question in hundreds of the ballots. At some of the precincts the commissioners of election made and returned along with the pollbooks and other papers of the general election separate certificates of the result of the election at those precincts upon the county-seat question within the time fixed by law, but at a number of precincts where votes were cast upon the question the commissioners did not make out any certificates of the result upon that question, though they made a memorandum of the result on the pollbooks and tally sheets. At the regular meeting of the board of canvassers of the election to canvass the returns as to public officers the board did canvass the returns as to the county-seat question appearing on the certificates sent in from those precincts where such certificates were made and sent in with the other returns and ascertained and declared that the result was for relocation of the county seat 44 votes, and against it 491 votes. Several weeks after the election certain citizens procured said commissioners at the precincts from which no certificates had been sent to make out and send to the clerk of the county court certificates of the result of the election at those precincts upon the county-seat question, which were delivered to the clerk April 3, 1901. At the second regular term of the county court after the election, in April, 1901, John Lavelle and others moved the county court to file the said delayed certificates, and to summon the election officers at the precincts to give evidence of the truth stated in the certificates, and to account for the delay in making the certificates, and to consider the memoranda on the pollbooks and the tally sheets in support of the certificates, and to consider the memoranda made by the board of canvassers touching the election, and from all such evidence to declare the result of the election upon the county seat. The order of the county court upon said motion shows that the court declined to consider said delayed certificates because they had been made out since the adjournment of the canvassing board, and filed since the regular January term, and because returned to the clerk by private persons, and not under seal; and the court declined to summon the election officers, and declined to entertain any and all said motions made by Lavelle and others, and repeated that it declined to consider said delayed certificates or evidence touching the election upon the county seat. It refused to allow said delayed certificates to be filed. After this action of the county court, B. L. Morgan and others obtained from the circuit court an alternative mandamus commanding the county court to convene in regular session, and ascertain and declare the result of the vote at the election held in the county on November 6, 1900, "on the question of the relocation of the county seat at Pine Grove upon the separate certificates heretofore delivered by the election officers to the clerk of said court and those delivered to the said clerk on the 3d day of April, 1901, and to enter the result thereof of record as required by law, or show cause, if any it can, why it should not do so." The circuit court refused a peremptory mandamus, and Morgan and others obtained a writ of error.
The first question is, does mandamus lie in the case, or is certiorari the proper remedy? It is useless to go over what has so often been discussed, where mandamus does and does not lie, except in short space. Likely I could not state it better now than to repeat point 1 of the syllabus in Roberts v. Paul, 50 W.Va. 528, 40 S.E. 470 "The writ of mandamus properly lies where the inferior court refuses...
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