Plaintiff v. Holt

• Decision Date: 02 November 1899
• Citation: 47 W.Va. 348
• Court: West Virginia Supreme Court
• Parties: Hassinger et al. v. Holt, Judge, ct al.

47 W.Va. 348

Hassinger et al.

v.Holt, Judge, ct al.

Supreme Court of Appeals of West Virginia.

Submitted November 2, 1899-Decided December 9, 1899.

1. Prohibition Writ Jurisdiction.

To warrant a court in granting a writ of prohibition, it should clearly appear that the inferior tribunal is actually proceeding, or is about to proceed, in some matter over which it possesses no rightful jurisdiction, (p. 351).

2. Board of Education Duties Ministerial.

The duties of a board of education in the management and control of graded schools which have been established in its district are essentially ministerial, (p. 352).

3 Prohibition Writ Judicial.

a writ of prohibition only goes against a judicial tribunal and judicial action, an: ! not that which is merely ministerial, (p. 351).

Application by the board of education of Fairfax district and A. S. Hassinger and others for a writ of prohibition against John H. Holt, judge of the circuit court of Tucker County, and others.

Writ Granted.

Cunningham & Stallings and E. P. Durkin, for petitioners.

Wm. G. Conley and E. D. Talbott, for respondents. McWhorter, Judge:

This is an application by the board of education of Fairfax district, Tucker County, and A. S. Hassinger, president of said board, and J. W, Duncan, claiming to be a commissioner and member of said board, for a writ of prohibition against the Honorable John Homer Holt, judge of the circuit court of Tucker County, the circuit court of said county, S. W. Grogan, and I. N. Post, assuming and claiming to be commissioners and members of said board of education of Fairfax district, A. E. Michael, J. L. Fortney, J. S. Shaver, Alice Deets, and A. M. Dennison. Petitioners allege that they are aggrieved, molested, hindered, and disturbed in their respective duties as a board of education, and president and commissioner thereof, by a vacation order entered by said Holt, judge, on the 9th day of September, 1899, purporting to be a rule in prohibition against petitioners, as well as against H. W. Freeman, Minnie Chisholm, Pearl Carver, Carrie McKee, and C. C. Moore, which last named are teachers of the graded free school of Thomas, in said Fairfax district, without authority of law, and without jurisdiction conferred or reposed therein by law; that, if said judge of said court has any such color of authority or jurisdiction that may be conferred by law, he has usurped and abused any such jurisdiction that he m ay have had or taken in the premises in entering said order of September 9, 1899. A copy of said order is filed with the petition, and a writ is sought to be issued by this Court to prohibit the further prosecution in said circuit court of a proceeding in prohibition against petitioners and the teachers named. The petition of S. W. Grogan and I. N. Post for writ of prohibition is exhibited with the petition in this case, from which it appears that said I. N. Post caused to be instituted in said circuit court a quo warranto proceeding to oust the petitioner J. W. Duncan from the said office of commissioner of said board of education of said Fairfax district, who had been and was acting as such commissioner with said Hassinger, the president of said board, and the object of the prohibition was to prohibit said J. W. Duncan from acting as a member of said board of education until said quo warranto, proceeding against him could be heard and determined; that A. S. Hassinger be prohibited from conspiring" and confederating with said Duncan to hinder the teachers appointed by petitioners Grogan and Post, as such board, from teaching the Thomas graded free school; that the teachers named as defendants', appointed by said Hassinger and Duncan, be prohibited from interfering or in any manner molesting the teachers appointed by said Post and Grogan in teaching the said Thomas graded school; and that a rule be issued, returnable at the first day of the next term of said court, against said Duncan and Hassinger and the teachers named. And on the 9th day of September, 1899, said judge entered a vacation order according to the prayer of said petition, which is the rule in prohibition complained of. Petitioners file with their petition for the writ here a certificate of election by the board of canvassers of Tucker County, showing the election by a.very large majority at the general election, November 1898, of J. W. Duncan to the office of commissioner on said board, which is certainly color of title to the office; and it is not disputed but admitted...