State Ex Rel. Heironimus v. Town Of Davis

• Decision Date: 22 June 1915
• Citation: 76 W.Va. 587,85 S.E. 779
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. HEIRONIMUS. v. TOWN OF DAVIS et al.

85 S.E. 779

76 W.Va. 587

STATE ex rel. HEIRONIMUS.

v.TOWN OF DAVIS et al.

Supreme Court of Appeals of West Virginia.

June 22, 1915.

(Syllabus by the Court.)

Error to Circuit Court, Tucker County.

Proceedings for mandamus by the State, on the relation of R. D. Heironimus, against the Town of Davis and others. Judgment denying relief, and relator brings error. Reversed, and peremptory writ issued.

R. D. Heironimus, of Davis, for plaintiff in error.

Frank C. Reynolds, of Keyser, for defendants in error.

ROBINSON, P. The Town of Davis is a municipal corporation under Code 1913, ch. 47. By that statute, sec. 17, the officers of the town "shall be elected on every first Thursday of January, at such place in the town * * * and under such supervision rules and regulations, not inconsistent with the laws regulating district elections, as the council may prescribe." An ordinance of the town made in keeping with this statutory provision, provides "that the annual town election shall be held on the first Thursday in January, at such place, or places, as the council may designate." Thus we see that the law fixes a time for the holding of the general town election annually, and provides virtually that the council shall provide for the holding of the same. Moreover, certain provisions of the general election laws are applicable to the holding of municipal elections. By those provisions it is the duty of the council to prepare for the holding of the town election by the appointing of election officers, the furnishing of the election paraphernalia, and the doing of other necessary things. While the law itself calls the election and does not provide for a special proclamation by the mayor or council to call the same, yet the law provides in effect that the council shall cause the election to be held by making all the preparations for it which are essential to its holding. The town officers must open the polls. They must see that the electorate are given the opportunity to vote. In a sense the council must hold the election which the law calls. In many towns it is usual for the mayor or council to emphasize the coming of the election, and to call attention to the preparations made for it, by published notice proclaiming the time and places for its holding and other things in connection therewith. The doing of this, though not specially provided for, is perhaps incidental to the provisions of the law for the holding of town elections. It is at least good practice. That practice had generally been observed in the town of Davis until the instance out of which arises this case.

For the annual town election which the law prescribed to be held on the first Thursday in January, 1915, the council of the Town of Davis made no preparation whatever. No election was held. The members of the council for the preceding year continued to hold over. More than this, the record of the council shows that "in view of the fact that no election was held" the members of the council declared themselves "elected to their respective positions for the ensuing year, " and issued certificates of election to themselves. After they so declared themselves elected and entitled to hold for another year, Heironimus, a citizen, voter, and taxpayer in the town, sought the writ of mandamus to compel them to cause to be held the annual election which he avers they neglected to bring about as the law enjoined them to do. The circuit court, upon returns of the town and its officers to the alternative writ, denied the relief sought. To such judgment Heironimus prosecutes writ of error.

The substance of the returns to the alternative writ is that Heironimus allowed the day fixed by law to go by without demanding an election to be held, that he is acting not in good faith and for ulterior motives in now demanding an election, and that it was generally conceded by the people of the town that no election should be held, because they were satisfied with the present officers, and the holding of no election would save expense. But to us it seems clear that these considerations can not excuse the neglect of that which the law enjoined upon the officers composing the common council of the town—the causing of an election of persons to succeed them. There was no duty upon Heironimus to demand that these officers do their legal duty. It was to be assumed that they would do without other demand what the law commanded them to do. Nor does it appear that the relator is barred on consideration of bad faith or ulterior motives from the enforcement of the legal right on which he relies. And, though every person in the town may have been in every way satisfied with the officials in office and desired to retain them, or to save the expense of an election, the law provided for...