Sohmulbach v. Speidel

• Decision Date: 18 December 1901
• Citation: 50 W.Va. 553,40 S.E. 424
• Parties: SOHMULBACH et al. v. SPEIDEL et al.
• Court: West Virginia Supreme Court

40 S.E. 424

50 W.Va. 553

SOHMULBACH et al.

v.SPEIDEL et al.

Supreme Court of Appeals of West Virginia.

Dec. 18, 1901.

MANDAMUS—RESTORATION TO OFFICE^CITY COUNCIL—QUORUM—REFUSAL TO VOTE —ELECTION OF OFFICERS.

1. Mandamus lies to correct an improper amotion from office and to restore to the full enjoyment of his franchise a person who has been improperly deprived thereof; and when one has been wrongfully deprived of his office by the illegal appointment of another the writ lies to compel his restoration, though the person appointed in his stead be in possession de facto.

2. When a city council is composed of two bodies, called "branches, " a majority of each of which is necessary to a quorum, which by law are required to meet in joint session at the first meeting after the regular charter election, or as soon thereafter as practicable, and elect certain city officers, and at such a regular meeting fewer members than a quorum appear in each branch, and the charter empowers a smaller number than a quorum to adjourn from time to time and compel the attendance of absent members, and in pursuance thereof the council had theretofore provided by ordinance that such smaller number may order the city sergeant, or any of his deputies, to arrest the absent members, or any of them, and cause them to appear forthwith at the place of meeting, and there to remain until the meeting adjourn or leave of absence be given, and had also previously provided by ordinance that the first branch, upon notice by messenger from the second branch, shall proceed in a body to the chamber of the second branch, and proceed to elect officers, a quorum of each being present, and such smaller number than a quorum so meeting do cause the absent members to be so arrested and compelled forthwith to attend, and before any adjournment in either branch is had the second branch, by messenger, gives such notice, and thereupon the presiding officer of the first branch and a minority of its members proceed willingly and the others under compulsion into the chamber of the second branch, and the election of officers is there proceeded with, and a majority of such first branch refuse to vote in such election, but a majority of all the members in such joint session do vote for the persons elected, such election is valid.

(Syllabus by the Court.)

Error to circuit court, Ohio.county: H. 0. Hervey, Judge.

Action by Henry Schmulbach and others against Joseph Speidel and others. Judgment for defendants, and plaintiffs bring error. Affirmed.

Caldwell & Caldwell, for plaintiffs in error.

John J. Coniff and H. M. Russel, for defendants in error.

POPFENBARGER, J. The questions to be disposed of in this case grow out of proceedings following the city election held in the city of Wheeling in January, 1901. The council of said city is composed of two branches, known as the "first" and "second" branches, the second branch having 28 members and the first branch 15 members. The second branch elects its presiding officer who is designated the president of that branch. The first branch is presided over by the mayor. By chapter 52 of the Acts of the Legislature of 1882 it is made the duty of the council in joint session, and a quorum of each branch being present, at their first meeting after every regular charter election, or as soon thereafter as practicable, in like joint session, to elect three members of the board of public works. Upon the ascertainment of the result of said election it was found that the second branch was equally divided politically, there being 14 Democrats and 14 Republicans. The first branch was composed of 0 Democrats and 9 Republicans, which gave the Republicans a majority of three in joint session. Prior to the date fixed for the election of the members of the board of public works, —February 26, 1901,-one of the Republican members of the second branch died, and a Democrat was elected as his successor. Three of the other Republican members of the second branch declared it to be their intention not to vote for the Republican caucus nominees for the offices to be filled, which made it certain that said nominees could not be elected unless further changes should occur.

The following are some of the rules prescribed by ordinance for the government of the council:

"First. The meeting of the first and second branches of the council shall be held at their respective council chambers, on the second and fourth Tuesdays of each and every month; and also at such times as may be fixed, on special order of adjournment."

"(59) A police officer shall be detailed for each branch of council, who shall act as sergeant-at-arms at all meetings."

"(51) Whenever, at the time appointed for the meeting of either branch of the council, there shall be not a quorum present, it shall be lawful for the members of such branch who may be in attendance to order the sergeant, or any of his deputies, to arrest the absent members, or any of them, and cause them to appear forthwith at the place of meeting, and there to remain until the meeting adjourn or leave of absence be given.

"(52) It shall be lawful for any number of members of either branch, less than a quorum, who may have assembled at the time appointed for meeting of such branch, to adjourn to a subsequent time, and cause the sergeant or any deputy to give notice to the absent members of the time to which such adjournment has been made, requiring their attendance at such adjourned meeting, under the penalty of two dollars on each member; and if any such absent member, being so notified, fail to attend such adjourned meeting, he shall forfeit two dollars to the use of the city unless excused for sufficient reason by the branch of which he is a member."

"(49) At all meetings of council the branch first wishing to adjourn shall notify the oth-er branch of its desire to do so, and the presiding officer of the branch so giving notice shall not take a vote on the question of adjournment until an answer is received from the other branch."

"(18) Ail questions shall be put in this form: 'As many as are of opinion, ' (as the case may be), 'say "Aye." Contrary, "No." ' And in doubtful cases, or where an affirmative vote of two-thirds of the members present is necessary to carry the proposition, the presiding officer may direct or any member may call for a division."

"(23) A motion to adjourn shall always be in order, unless the council is engaged in voting."

An ordinance passed by the council January 12, 1883, and in force at the time of said election, reads as follows: "At the first meeting of council after the next regular biennial charter election in said city, or as soon thereafter as practicable, and thereafter at the first meeting of council after the regular biennial charter election, or as soon after such meeting as practicable, the second branch shall give notice by the proper messenger to the first branch that it is ready to proceed to the election of such officers of the city as are required to be elected by the council. Thereupon the first branch shall proceed in a body to the chamber of the second branch, and they (a quorum of each being present) shall proceed to elect by viva voce votes in joint session the proper persons to the offices hereinafter mentioned: One assessor of the city of Wheeling for the North district, one assessor of the city of Wheeling for the South district, collector of the city of Wheeling, clerk of the market, clerk of the Centre Market, city sexton, city solicitor, city weigher, health officer, keeper of city lockup, measurer of lumber and wood, members of the board of public works (three to be elected), overseer of chain gang, receiver of the city of Wheeling, water commissioners (three to be elected), weighmaster of the city of Wheeling, whose term of office shall continue until his or their successors is or are elected and qualified, unless sooner terminated by resignation or removal from office or other lawful cause."

On the evening of February 26, 1901, 14 members appeared in the second branch, and, the president being absent J. H. Shaf er was elected to preside. The roll call showing the absence of a quorum, those present ordered the arrest of the absent members. T. W. Killeen, one of the Democratic members, had failed to qualify in time, and the clerk had omitted his name from the roll as having forfeited his membership. Killeen was then elected by the council as a member from the Sixth ward. Under this order Philip Maurer was brought in under arrest, and his presence noted, but he refused to answer, claiming he was present by force, and against his will. Another roll call show ed 15 members present, and then D. B. La-

vey was elected to fill the vacancy occasioned by the death of F. M. Milligan, the deceased Republican member. At this point Mayor Sweeney appeared, and questioned the legality of the election of Killeen and Lavey, because the first branch had not secured a quorum. The 16 members of the second branch thus secured remained in the hall all night, and numerous roll calls were had showing the same members present. At the time of the meeting on said evening the journal of the first branch showed that at the hour of the meeting there were present six members and the mayor. There being no quorum, those present requested the city sergeant to arrest and bring in the absentees. The situation remained unchanged in the branch until about 8:30 o'clock the next morning, the six members and mayor remaining there all night awaiting the arrest and bringing in of the absentees. These absentees had determined, if possible, to prevent the election at that time. For this they had reasons to offer. One was that one of their party was sick, and unable to attend the meeting; and another was that two more of them could not be present owing to engagements, made long before, to attend as performers on a public occasion, from which they could obtain no release. The other members desired to postpone...