Roberts v. Paul, Judge.

• Decision Date: 14 December 1901
• Citation: 50 W.Va. 528
• Court: West Virginia Supreme Court
• Parties: Roberts v. Paul, Judge.

50 W.Va. 528

Roberts

v.Paul, Judge.

Supreme Court of Appeals of West Virginia.

Submitted September 8, 1901.

Decided December 14, 1901.

1. Mandamus Jurisdiction' Alleged Error.

The writ of mandamus properly lies where the inferior court refuses to take jurisdiction where by law it ought to do so, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof; but it will not lie to correct alleged error occurring in the exercise of its judicial discretion while acting within its jurisdicton. (p. 529, 530).

2. Mandamus Discretion of Court.

Mandamus will not lie to control the exercise of the discretion of any court, board or officer, when the act is either judicial or quasi-judicial in its nature. The propriety of its action, in such case, however erroneous and improper, cannot be questioned or controlled by mandamus. This does not apply to election cases, (p. 530, 531).

3. Mandamus Decision of Court.

Mandamus will not lie to reverse the decision of a court refusing costs in a judicial proceeding before it, even though no writ of error lies therefor. (p. 531).

4. Costs Removal of Officer.

Costs are not recoverable in a proceeding in a circuit court to remove an officer under section 7, chapter 7, Code 1899. (p. 532).

5. Proceedings Resignation Discontinuance.

In a proceeding to remove an officer under section 7, chapter 7, Code 1899, the resignation of the officer, accepted by the proper authority, ends the proceeding. (p. 532).

Petition for mandamus by J. E. Roberts and others against J. R. Paull, Judge.

Writ denied.

White & Allen, for petitioners.

Caldwell & Caldwell, for respondent.

Brannon, President:

J. E. Roberts, George Edwards, W. II. Erteck and W. E. Crow filed in the circuit court of Marshall County certain charges against S. R. Davis, a commissioner and president of the county court, and upon them sought, the removal of Davis from his office and a trial before a jury of said charges was going on in said court, when a paper was presented to the court showing that Davis had resigned his office, and that his resignation had been accepted, and thereupon the court entered an order stating that as the proceeding was merely one to remove Davis from office, and as he no longer occupied the office, the proceeding was dismissed, reserving the question of costs for further consideration; and later the court acted on the motion of the prosecution for a judgment for costs in the prosecution of the charges, and expressed the opinion that no costs were recoverable in such a proceeding for want of a statute authorizing them, and denied any judgment for costs. At the time of the dismissal of the proceeding the prosecutors of the charges had submitted substantially all of their evidence, but had not rested their case, and counsel for Davis stated that the resignation of Davis was not to be taken as an admission or confession, but that it was occasioned solely by his unsuccessful candidacy for re-election on the day preceding, and by his desire to avoid additional expense in the proceedings. The said Roberts, Edwards, Eneck and Crow having been thus refused costs, obtained from this Court a mandamus nisi against Judge J. R. Paull, as judge of said circuit court, to compel him to render judgment for such costs of prosecution.

The first question in the case is, does mandamus lie, even if the judgment of the circuit court refusing costs were erroneous? I answer that it does not. Whether or not costs should have been awarded was a judicial question in a proceeding of which the circuit court had jurisdiction. If the circuit court had refused to act upon the question of costs, then a mandamus to compel it to take action would undoubtedly lie under the principles stated in Wheeling Bridge Co. v. Baull, 39 W. Va. 142, that mandamus is the proper remedy to compel the exercise of jurisdiction by the circuit court, which it is erroneously refusing to assume contrary to the express provisions of a constitutional and valid statute." But remember that the court did not refuse to act, but distinctly acted, and even if that action should be ever so erroneous, it cannot be compelled to reverse its decision, in a judicial matter, by the writ of mandamus. The decision just cited means this. The Supreme Court of the United States has expressed the same rule and its converse aptly in the language: "The writ of mandamus properly lies where the inferior court refuses to take jurisdiction where by law it ought to do so, or where, having obtained jurisdiction in a cause, it refuses to proceed in the due exercise thereof; but it will not lie to correct alleged error occurring in the exercise of its judicial discretion while acting within its jurisdiction." Ex parte Parker, 120 U. S. 737. The same principles are announced by our decisions. In State v. County Court, 33 W. Va. 589, it is held that "mandamus will not lie to control the exercise of the discretion of any court, board or officer, when the act complained of is either judicial or quasi-judicial. The inferior tribunal may be compelled to act in such case, if it unreasonably neglects or refuses to do so, but if it does act, the propriety of its action, however erroneous and improper, cannot be questioned or controled by mandamus." See also Miller v. County Court, 34 W. Va. 285. But it is said with earnestness that these parties ought to have their costs, and if mandamus cannot help them, they are without remedy, as no writ of error lies to reverse the action of a circuit court in a mere matter of costs. Costs are not the subject of a writ of error, it is true. Graham v. Citizens Bank, 45 W. Va. 701, (syl. pt. 10); Long v. Perine, 41 W. Va. 314. But that does not give the mandamus. Where the law in its wisdom refuses a writ of error because of smallness of amount, or because the error consists only of costs, or for other reason, it dogs not follow that mandamus lies. The Supreme Court of the United States in Ex parte Many, 14 How. 24, said, when complaint was made by a mandamus that the inferior court had refused costs, "We think its judgment, whether correct or not, cannot be revised in the form of proceeding moved for on behalf of the plaintiff. The decision of the circuit court was not a mere ministerial act. It was a decision of a court of competent jurisdiction made in the exercise of judicial authority and discretion." In Ex parte Neivman, 14 Wall. 152, 168, we find this language: "Confessedly the petitioner is without remedy by appeal or writ of error, as the sum or value in controversy is less than the amount required to give that right, and it is insisted that he ought on that account to have the remedy sought by the petition. Mandamus will not lie, it is true, where the party may have an appeal or writ of error; but it is equally true that it will not lie in many other cases where the party is without remedy by appeal or wilt of error." When the law denies an appeal for any cause, it intends the decision to be final, and, therefore, a mandamus does not lie in such case. Merrill on Mandam., s. 202.

The second question presented by the record is, whether Judge PaulPs judgment refusing costs is erroneous. We hold that it is not. The statute, Code 1899,...