Plaintiff v. County Court Of Wyo. Co.
| Decision Date | 14 November 1911 |
| Citation | 69 W.Va. 734 |
| Court | West Virginia Supreme Court |
| Parties | Frantz et als. v. County Court of Wyoming Co. |
Matter-Citizens or Taxpayers.
A citizen, tax-payer or voter in any proper case may maintain mandamus to compel a public tribunal to perform a ministerial duty, imposed upon it by law in favor of the public, without showing any special or pecuniary interest in the performance thereof. (p. 738).
If such duty arises upon the tiling of a petition bearing the signatures of a large number of persons and performance is refused, mandamus lies at the instance of one or more of such petitioners to compel performance. (p. 739).
Vote Bond.
The statutory bond, conditioned to pay the legal costs of a special election on the question of re-location of the county seat of a county, need not be tendered or filed with the petition for submission of such question. It suffices to give the bond at the term at which the petition is filed. (p. 740).
Vote Time for Holding.
The filing of a proper petition, in a year in which no general election is to be held, for submission of such question, requires submission thereof at a special election, even though, by reason of delay in filing the petition, the special election must occur in a year in which a general election will be held. (p. 737).
Vote Proceedings.
Prevention of the filing of a petition for such an election at a regular session of a county court by a clandestine meeting and immediate adjournment of the term, with intent to prevent it, excuses failure to present or file the petition at such meeting and also lack of a formal demand and amounts to a refusal on the part of the court to receive and act upon the petition, (p. 739).
If a county court in regular session adjourn without performance, of a ministerial duty, it was bound by law to perform at such session, on behalf of the public, and with intent to avoid performance thereof, a citizen desiring performance of such duty may, by mandamus, compel such court to re-convene and perform it. Quoad the omitted duty, the term of court is deemed to continue until it has, been performed, (p. 740).
Original proceedings by L. N. Frantz and others for mandamns to the County Court of Wyoming County and others.
Peremptory Writ Granted,
M. F. Matheney, R. D. Bailey, and Farley, Sutphin & Ward, for petitioners.
George P. Stewart, prosecuting attorney, and Howard & Worrell, for respondents.
poffenbarger, judge:
On this application for a peremptory writ of mandamus, to compel the county court of Wyoming county to reconvene, as in regular session, and permit the filing of a petition for an election on the question of relocation of the county seat of said county, and enter an order providing for such election, lack of pecuniary interest in the relators is relied upon as barring right to relief. Occasionally it is said in the text books and decisions that pecuniary interest in the relator is essential. 19 A. & E. Enc. L. 881; People v. Masonic Lodge, 98 111. 635; Payne v. Staunton, 55 W. Ya. 20.2; but this generally occurs in those cases in which the relator seeks some alleged right in a corporation or a benefit society by mandamus. There are numerous instances in which we have granted the writ at the instance of relators having no pecuniary interest in the subject matter. Doolittle v. County Court, 28 W. Va. 158; Brown v. County Court. 45 W. Va. 727; Morgan, v. County Court, 53 W. Va. 372; Mann v. County Court, 58 W. Va 651. Some of these cases were of the class to which this one belongs, applications by citizens for writs of mandamus to compel county courts to perform public functions concerning elections to re-locate county seats. Any substantial interest, whether pecuniary or not, suffices in all cases in which the purpose of the writ is to compel performance of a public duty. Citizens, tax payers and voters in all proper cases may invoke the remedy to compel performance of a duty which a public officer or tribunal owes them, without showing any interest other than that they are citizens, tax payers or voters, as the case may be. 26 Cyc. 404; Merrill on Mand. sec. 230. In some jurisdictions, private individuals are not allowed the aid of this writ to enforce performance of public duty, but that is not our rule. Where the courts do so hold, a special or pecuniary interest must be shown to enable a. private individual to sue in mandamus. Failure to notice the two distinctions here noted, may result in the invocation of inapplicable precedents and judicial expressions.
The right of only five of the 987 petitioners to apply for this writ is also denied by the respondents. It is usual for one of the petitioners to ask for the writ on behalf of himself and all the others; but we do not regard this as essential. Equity principles require all persons interested in the subject matter of an equity suit to be made parties; but those principles seem not to apply in mandamus. Payne v. Staunton, 55 W. Va. 202.
Failure to tender with the petitions a bond, conditioned, to pay all legal costs of holding the election, is relied upon as matter of defense. This bond must be given at the term of the court at which the election is ordered, hut it is no part of the petition, nor need it be tendered therewith. Full compliance with the terms and spirit of the statute is effected by giving the bond at that term of court. Nothing more can be required.
Eight of the county court to postpone the election for four months and so place it in the year 1912, in which a general election will occur, is invoked as a bar to the relief sought, in reliance upon the statutory requirement for submission of such question at a general election, if one is to be held in the year in which the petition is presented. This position is likewise clearly untenable, for the statute says, if the petition is filed in any year in which no general election is to be held, the question shall be submitted at a special election, to be called by the court and held not less than sixty days nor more than four months from the date of the order. The date of the filing of the petition, not of the election, determines the character and time of the election.
Alleged refusal of the county court to permit tender, presentation or filing of the petition, and denial of the charge raise the main issue. It was circulated and completed for filing at the regular term of the court, commencing on the 4th day of September, 1911. As that was a, holiday, the statute authorized postponement of the sitting until the next day, and no meeting was held until after dark and under circumstances strongly indicating intentional secrecy. No business was transacted. No opportunity was allowed any person to be heard. Though many citizens had come to the county seat on business with the court, it did not convene until all, or practically all of them, had returned to their homes, and such as remained, if any, were not advised of the secret meeting. Adjournment "until the first day of the next term" was the sum total of the court's action, and the only ground or cause shown therefor was notice of an application for an injunction against the court, to prevent the issuance of certain orders for work, to be made at Beckley in Baleigh county, on September 7, 1911, a journey to which place required one day. This notice, together 'with necessity for appearance to resist the application was recited in the adjourning order. Had the court remained in session over Tuesday, September 5th, the members would have had the 6th for the journey. An adjournment could have been taken until Friday or the following Monday. Mann v. County Court, 58 W. Va. 651. No necessity for adjournment sine die or justification thereof is shown, but such adjournment, if acquiesced in, would have defeated the election. Intent to bring about this result is fairly inferable from the adjournment, followed by a special term for transaction of certain business which ought to have been disposed of at the regular term, but allowing no opportunity for the filing of the petitions. The conduct of the court is hardly reconcilable to any other hypothesis. Having considered all the evidence respecting the intent and motive of the adjournment, we have no doubt that its purpose was to prevent the filing of the petition.
Upon this state of facts, lack of demand by the petitioner and refusal of the court to comply therewith, are insisted upon. Of course, there was no formal demand. The court prevented it by its clandestine meeting and adjournment. The petitioners were...
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