Price S. v. Fitzpatrick S.

• Decision Date: 04 November 1919
• Court: West Virginia Supreme Court
• Parties: S. W. Price et als. v. J. E. Fitzpatrick et als.

85 W.Va. 76

S. W. Price et als.

v.J. E. Fitzpatrick et als.

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1919.

Decided November 4, 1919.

1. Municipal Corporations City Council Election Contest.

The council of a city, town or village to which one, whose seat is contested, is elected is the proper tribunal to try such contest, and not the council in office at the time of the election. (P. 78).

2. Same Tribunal for City Council Election Contest.

Where by law the duty devolves upon a certain person or tribunal to try and determine a question, and no provision is made for substituting another person or tribunal in case of disqualification of such person or tribunal, by reason of interest, and there is no other mode provided for the trial of such controversy, such interested person or tribunal must of necessity proceed with the trial thereof to the extent, and to the extent only, that there is no other person or tribunal provided for the performance of the duties devolved upon him by law. (P. 78).

3. Same Appeal to Circuit Court of Judgment on Election Con-

test.

Where a contest of the right of a member of a city council to hold his seat is heard and determined by the council going out of office at the time his term of office begins, the circuit court on appeal will have no jurisdiction to try such contest de novo upon a writ of certiorari to the judgment rendered by such council. Nothing more can be done than to reverse the judgment of the tribunal acting without jurisdiction, and remand the case to be tried before the tribunal having jurisdiction. (p. 81).

Error to Circuit Court, Fayette County.

Election contest by S. W. Price and others against J. E. Fitzpatrick, Henry C. Darlington, Thomas Garrett, W. H. Johnson, T. T. Lewis, S. E. Hester, and Arnold Brabbin. Judgment before the town council of Scarbro in favor of contestants, and case removed by contestees by writ of certiorari to the circuit court, wherein the judgment of the council was reversed, and on trial de novo there was a findingf for contestees, Fitz-patrick and Garrett, and for part of the contestants, and from judgment, contestees, Johnson, Lewis, Hester, and Brabbin, bring error.

Reversed and remanded.

W. R. Bennett and George Love, for plaintiffs in error.

Dillon & Nuckolls, for defendants in error.

RItz, Judge:

At the election held in the town of Scarbro in the month of January, 1919, the following persons were candidates for the municipal offices of said town on the Citizens Ticket, to-wit: for mayor, S. W. Price; for recorder, Henry J. Smith; and for councilmen, V. P. Spradling, C. R. Heerman, L. Douglass, Joseph H. Blake and Charles S. Thomas. These candidates at that time constituted the common council of said town, their terms expiring with the month of January, 1919, and they being candidates for the respective offices they were then filling. At said election the Citizens Labor Ticket had candidates for said offices as follows: for mayor, J. E. Fitzpatrick; for recorder, Henry C. Darlington; and for councilmen, Thomas Garrett, W. H. Johnson, T. T. Lewis, S. E. Hester and Arnold Brabbin. Upon a canvass of the returns of the election it was found that for the office of mayor Fitzpatrick received a majority of the votes, and for councilmen, Garrett, Johnson, Lewis, Hester and Brabbin each received a majority of the votes cast, and certificates of election were accordingly issued to them. A contest, however, was at once instituted by their opponents upon the ground, among others, that parties voted for them in said election who were not entitled to vote in said town. Notice of this contest was served upon the contestees on the 28th of January, 1919, to be heard on the 31st of that month, the day before the commencement of the term of office of the new mayor and coun-oilmen. In view of the fact that the council then in office were all contestants, and the council to come into office on the first of February were all contestees in said proceeding, the old council determined to create a new and disinterested tribunal for the trial of said contest by each resigning his office and electing a successor to hold the unexpired term, so that on the 31st of January, when the contest came on for trial, there was an entirely new council, selected however by the contestants, for the purpose of trying this contest. Objection was made by the contestees, but all objections were overruled, and a hearing had, and the contestants found to be legally elected, and on the following day they were inducted into office. This proceeding was removed by the contestees by writ of certiorari into the circuit court of Fayette county, where the judgment of the council was reversed, and a trial de novo had therein, which resulted in a finding that Fitzpatrick was elected mayor, that the contestee Garrett was elected as one of the councilmen and that the contestants Heerman, Douglass, Blake and Thomas were elected as the other four councilmen, and judgment rendered by said court accordingly, from which judgment the contestees Johnson, Lewis, Hester and Brabbin prosecute this writ of error.

It is insisted that the circuit court did not have jurisdiction to try the contest upon the writ of certiorari for two reasons: first, that it had never been tried by the tribunal having jurisdiction to try it in the first instance, and that until it had been so tried no jurisdiction could be acquired by the circuit court; and second, that the notice was void because it was not served ten days before the time fixed for the hearing, as it is insisted the statute requires.

Did the tribunal which tried the contest as the council of the town of Scarbro have any jurisdiction to try the same? In the case of Trunick v. Town of Northview, 80 W. Va. 9, we held that the council to which a member is elected, whose right to hold the office is contested, is the tribunal to try the contest, and not the council in office at the time of the election. Under this holding, of...