Plaintiff v. County Court O R Wetzel County.
| Decision Date | 13 November 1886 |
| Citation | 29 W.Va. 63 |
| Parties | Welch et al. v. County Court o r Wetzel County. |
| Court | West Virginia Supreme Court |
The rule, that matters of discretion are not subject to review, must be confined to cases, which are pur ly matters of discretion, or such, as in their result can not do injury. But, whenever in the exercise of discretionary powers it appea s, that the discretion exercised was not a pure discretion but a sound judicial discretion, and this discretion has been perverted and a rased, or that its exercise has been in violation of established ri les and precedents and to the injury of any body, its exercise is si: yject to review, and it may be reversed by an Appellate Court, (p. 67.)
He-location of County-seat Wi it of Certiorari. A writ of certiorari is not a writ of ri; ht, but the issuing of it is dependent on a sound judicial discretion and a refusal of a Circuit Court to award it on a proper petition t review the proceedings of the County Court in ascertaining and leclaring the result of the vote on a re-location of a county-seat, r ay be reviewed by writ of error issued by the Supreme Court of A opeals. (p. 72.)
The provisions of the statute prescrit ng the manner, in which the county-seat of a county may be re-located by a vote of the people at a general election, apply to al the counties in the State including those, the county-seats of wh ch were declared permanent by the special act of the legislatur creating them. (p. 86.)
cation.
The manner of giving notice, that such a vote is to betaken, prescribed by the statute, is substantially though not literally complied with, when the clerk of the County Court after the adjournment of the court makes out and certifies a copy of the order, made by such court at a regular session, that a vote be taken at the next general election, to be held in said county, upon the question of the re-location of the county-seat at the place named in the petition to the County Court, and printed copies of this order and of the certificate of the clerk of the court including his signature are posted at each of the places of voting at least forty days before the day of such election, and, if a newspaper is printed in said county, when the said clerk shall cause a copy of said order to be published therein at least once in each week for four successive weeks prior to said election, (p. 89.)
The requirement, that the commissioners of election of each place of voting shall make out and sign a separate certificate of the result of the vote and deliver the same to the clerk of the County Court within four days, excluding Sundays, after the day., on which the election is held, is mandatory not directory; and, if it be not complied with at any place of voting, that fact vitiates the determination of the question, whether the county-seat shall be re-located by the votes cast at that election; and this provision of the law can not be regarded as substantially complied with, if the commissioners of election at each place of voting insert the result of the vote at such place in the certificate, or in one of the certificates, which they are required to make out and sign, of the result of the vote for each candidate voted for, such separate certificate and the delivery of it by the commissioners of election at each place of voting within four days, Sundays excluded, after that, on which the election was held, to the clerk of the County Court, and the requirement, that he shall lay it before the County Court at its next session thereafter, being regarded as designed in part to prevent the fraudulent alteration of such certificate, (p. 90.)
Statement of the case by Green, Judge:
B. M. Weclh and fifty-four other citizens and tax-payers of Wetzel county in this State applied by petition to the Circuit Court of said county for a writ of certiorari against the County Court of said county to require said court to remove the record of its proceedings in relation to the re-location of the county-seat of said county into the Circuit Court of said county. The petition set out that on June 17, 1884, David Barr and eight hundred and two other citizens or persons said to be citizens of Wetzel county, tiled their petition in the County Court of said county j raying a re-location of the county-seat thereof at Wileyyille in Centre district in said county on a certain lot of ground designated in the petition; and thereupon said County Court ordered, that a vote be taken at the next general elect dii to be held in said county on the second Tuesday in October, 1884, upon the question of the re-location of said coi nty-seat at Wileyville upon a certain lot described by metei and bounds containing one acre; that on said day a vote w s accordingly taken on said question; that the County Cou t of said county seven days afterwards examined the balets, poll-books and certificates returned from the district an 1 voting-places in said county; that the fifty-four petitione s above referred to appeared before the said County Court ai d objected to the counting of said vote or the declaring-of my result of the said election as to the said question of the j e-location of said county-seat, on the ground that there were no separate certificates of said vote on this question filed with he clerk of the County Court of said county, as is required 1 y the 15th section of chapter 5 of the acts of 1881; that lie said County Court overruled this and all other objection s of the petitioners and declared the county-seat of said cour ty to be removed from New Martinsville and re-located at Wileyville in said county; and that said court appoir ted the president and one of the commissioners thereof and a third person to prepare and submit to the said court p ins and specifications for the necessary public buildings to t; erected at Wileyville including a court-house and jail.
The petitioners in this petition asse rt that the action of the County Court was unwarranted, becai se, 1st, the petition for the re-location of the county-seat wa i not presented to, and the order for the election was not nade by, said County Court at a regular meeting thereof duly named and appointed; 2d, because said County (;>urt did not ascertain, that the petition had been signed by I tie requisite number of legal voters in the manner prescribec by law, that is, by allowing one vote for every six person, as shown by the last 9 preceding census; 3d, because the said clerk did not, as required bylaw, certify any copies of said order directing said vote on said question to be taken but instead gave to the sheriff printed copies of said order, which printed copies uncertified by the clerk were the only copies of said order posted by the sheriff; and 4th, because the commissioners of election did not make out, sign and return separate certificates of the result of said election. The petition then concludes as follows: u Wherefore your petitioners respectfully charge, that the different orders herein referred to were made out without any authority of law, and pray, that your Honor grant to them a writ of certiorari directed to the County Court of Wetzel county commanding that court to certify and remove the i*ecord of its action in relation to there-location of the county-seat of said county, and to produce before your Honor or the Circuit Court of said county the ballots, pollbooks and certificates of the said election of the 14th of October, 1884, upon the question of re-locating the county-seat of said county with all the proceedings relating thereto, and to abide by and perform such order, as may be made in the premises, after all the matters and questions herein involved shall have been heard and determined." To this petition the following affidavit was appended:" State of West Virginia, Wetzel County, to-wit:
" Before the undersigned, clerk of the Circuit Court of Wetzel county, W. Va., in and for the county and State aforesaid, on this 19th day of December, 1884, and in the said county, personally appeared E. B. Snodgrass, one of the petitioners above named, who being duly sworn says, that the facts and allegations therein contained are true, except so far as they are therein stated to be on information, and that, so far as they are stated to be on information, he believes them to be true."
The folio wing is a copy of the order showing the filing of said petition and the action taken on it by the Circuit Court of Wetzel:
B. M. Welch, M. B. Davis, Jacob Koontz and others vs. The County Court of Wetzel County.
petition eor certiorari.
From this judgment of the Circuit 3ourt of Wetzel county B. M. Welch and the fifty-four oth >r petitioners have obtained from this Court a writ of erro.
James Morrow, Jr., for defendant n error.
The only question argued by the c mnsel...
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