Plaintiff v. Tucker County Court El Al.

• Decision Date: 12 September 1898
• Citation: 38 W.Va. 71
• Parties: Hamilton et al. v. Tucker County Court el al.
• Court: West Virginia Supreme Court

38 W.Va. 71

Hamilton et al.

v.Tucker County Court el al.

Supreme Court of Appeals of West Virginia.

Submitted September 7, 1893.

Decided September 12, 1898.

1. County-Seat Re-locationCounty Court Entry on Record Book.

Under section 15, c. 89, Code 1891, when an election upon the re-location of a county-seat has been held, and the County Court has ascertained and declared its result and entered upon its record-book the fact, that three fifths of the votes east were for relocation at a particular place, that place becomes by operation of law from the date of such declaration the county-seat of the county.

2. County Court Notice Special Session.

A special session of a county court can he held legally only altera notice of the time of the session, and notice of the purposes for which it is to be held have been posted by the clerk at the front door of the court-house at least two days before the session.

8. County Court Notice Special Session.

To give such special session jurisdiction in any matter, it must appear upon its record-book that such notice was so posted, and also it must appear from such entry in said record-book what were the particular purposes for which the special session was held, as stated and specified in such notice.

4. County Court Notice Special Session.

If such entry as is above described is not entered in such recordbook of such special session, every tiling, which may be done at the special session, must be held to be an absolute nullity.

5. County Seat Re-Location.

Citizens and taxpayers of a county have such an interest in the matter of the re-location of a county-seat, that they may interpose in proceedings in such matter ant maintain appropriate legal process touching if.

J. P. Scott, A. J. Valentine, C. 0. Strieby, and Dayton &Dayton, for petitioners.

L. S. Anvil, A. B. Parsons, and J. Hop. Woods, for respondents.

Brannon, Judge:

This case involves the location of the county-seat of Tucker county. On April 28, 1893, an election was held in Tucker county to obtain the sense of its voters upon the question of the removal of its county-seat from St. George to Parsons, and on May 4th the County Court canvassed the returns of the election and declared and entered of record as its result, that three fifths and upwards of the votes cast were in favor of re-location at Parsons. Afterwards, on July 10th, the County Court entered an order reciting the former order declaring the result of said election and reciting, that certain persons had tendered a lease for the term of four years of a certain house at Parsons for use as a court-house, and accepting such tender, and then declaring the said house to be the court-house of said county, and the town of Parsons to be the county-seat, and ordering the removal of the county-records, papers and property pertaining to the clerk s office to said house at Parsons on the 7th day of August, and directing that bids be asked for such removal. By another order made on the said 10th of July the court awarded to Poling Bros, the contract for removing such records, papers, etc. On August 1st said contractors, Poling Bros., removed said records, papers and office-property from St. George to Parsons and placed them in the said house, which had been so declared the court-house of said county.

Application was made to the judge of the Circuit Court for a writ of certiorari to take into the Circuit Court for review and reversal the order so made by the County Court on 4th May, declaring the result of the election to have been in favor of the re-location of the county-seat; and, the writ having been refused, a writ of error and supersedeas was allowed by a judge of this Court on duly 27, 1893, to the order of the Circuit Court judge refusing such writ of certiorari. On August 7, 1893, at a County Court held by two of its members, an order was entered to the effect that the records and furniture belonging to the clerk's offices had been unlawfully removed by persons unknown on the night of the 1st and morning of the 2d of August, 1893, to the town of Parsons, and directing that they be restored and placed in statu quo in the clerk s office and court-house in the town of St. George, and commanding that the sheriff forthwith execute the order of restoration.

Thereupon John Hamilton and others, on behalf of themselves and all other taxpayers of Tucker county, presented to the judge of the Circuit Court a petition praying for a writ of prohibition to prohibit the County Court and sheriff from executing the last-mentioned order of the County Court requiring such records, papers and furniture to be restored to St. George; and, upon its refusal by the Circuit judge, a judge of this Court awarded a rule against said County Court and sheriff to show cause to this court why the writ of prohibition should not issue; and, the County Court and sheriff having tendered their answer to said rule, the petitioners objected to its being filed, and demurred to it as insufficient to prevent such writ of prohibition.

This answer itself demurs to the petition asking the prohibition, and we are required to say whether it calls for the writ of prohibition. We think it does. It shows that an election was held upon the re-location of the countyseat, and that the County Court declared and entered of record that more than the requisite three fifths of the votes were in favor of removal and re-location at Parsons, and that it declared Parsons to he the county-seat, if that were necessary to make it such, and that a particular building there was the lawful court-house.

The statute relating to the subject of removal of countyscats (section 15, c. 39, Code 1891) declares: If three fifths of all the votes cast at such election upon the question be in favor of re-location at either of the places voted for, the said County Court shall enter an order declaring the place so receiving three fifths of all the votes cast therefor to be the county-seat of said county from and after said date." Another clause provides that the County Court shall examine the certificates of the votes cast at the voting places, and that said court shall thereupon ascer- tain and declare the result of said vote, and enter the same of record.

Now, when such an election has been held, and the County Court has ascertained its result and declared that three fifths of the votes cast are in favor of re-location at a particular place, and entered the fact in its record-book, this place is from the date of said declaration by operation of law the county-seat, It is the duty of the County Court to expressly declare it the county-seat; but that is directory in the statute; and, if it has declared the result of the election, and that the requisite three fifths vote is in favor of re-location at a particular place, that alone in law removes the county-seat to the new place; otherwise., the popular will would be defeated. The statute plainly means that if three fifths of the voters vote for the relocation, and it be so found and declared and entered by the County Court, from that date the date of such declatiori the new point is the county-seat.

In one clause the statute provides for the ascertainment. by the County Court whether a three fifths vote has been cast foi re-location, and by another clause it enacts that if such vote has been cast, the place receiving such vote shall thenceforth be the county-seat. It is the vote, when so ascertained to be a three fifths vote, that works the change. All else is directory or ministerial. Having made the provisions adverted to the statute in other clauses goes on to direct the court, as soon as practicable, to cause the records, papers and property to be removed to the new county-seat; but that is simply ministerial simply something done to enable business to be carried on at the new point. Whether the records are there or not, it is the legal countyseat,

Thus, when on May 4th the County Court declared that three fifths of the votes had been cast for re-location at Parsons, and at latest, when on the 10th of July it declared the county-seat to be at Parsons, and a particular building there to be the court-house, Parsons became the countyseat, and St. George ceased to be, and the functions of the County Court touching there-location were at an end. It had fully exercised its jurisdiction. It had only to re- move the records from a place, which was no longer the county-seat, to one that had taken its place, Do you think that after all this a Circuit or County Court could lawfully sit at St. George? I do not,

Just here I will say that the order of restoration was made at St, George, as the notice for the special term shows. Our Code (section 6, c. 114) requires Circuit and County Courts to sit at the court-house. Judicial proceedings at a place not appointed by law are null and void, because the court there sitting is not a court but usurps jurisdiction, especially as our Code c, 39, s. 6 requires...