State Ex Rel. I. M. Conley v. Thompson

• Decision Date: 27 October 1925
• Docket Number: (No. 5543)
• Parties: State ex rel. I. M. Conley v. Simp Thompson
• Court: West Virginia Supreme Court

100 W.Va. 253

State ex rel. I. M. Conley

v.Simp Thompson

(No. 5543)

Supreme Court of Appeals of West Virginia.

Submitted October 7, 1925.

Decided October 27, 1925.

1. Justices of the Peace County Court May Accept Resignation of Justice of Peace to Take Effect on Future Day and Make Prospective Appointment to Fill Vacancy to Occur at Time Fixed by Resignation.

Under the constitution and laws of this state, a county court, the appointing body, has authority to accept the resignation of a justice of the peace to take effect on a future day, and after such acceptance, to make a prospective appointment to fill the vacancy to occur at the time fixed by such resignation. (p. 255.)

(Justices of the Peace, 35 C. J. §§ 15, 18 [Anno.].)

2. Same Justice of Peace After Resigning May Not Withdraw Resignation, Nor May County Court After Rights of Appointee Have Intervened Reconsider Prior Action and Permit Withdrawal of Resignation.

And after the acceptance of such resignation, and after the appointment of another to fill the vacancy to occur according to the terms of the resignation, the resigned officer has no right to withdraw his resignation, nor has the county court, after the rights of its appointee have intervened, the power to reconsider its prior action and permit the withdrawal of such resignation. (p. 257.)

(Justices of the Peace, 35 C. J. § 18.)

3. Evidence Court With Power to Act in Particidar Case Presumed to Have Acted Lawfully and Within Limits of Jurisdiction.

The presumption is that a court with power to act in a particular case acted lawfully and within the limits of its jurisdiction. (p. 261.)

(Evidence, 22 C. J. § 68.)

4. Judgment Judgment or Order of County Court, Unless Record Shows Want of Jurisdiction, Cannot be Collaterally Attacked.

The judgment or order of a county court, unless the record shows want of jurisdiction, cannot be collaterally attacked, (p. 262.)

(Courts, 15 C. J. § 418; Judgments, 34 C. J. § 823.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Original proceeding in mandamus by the State, on the relation of I. M. Conley, against Simp Thompson.

Writ awarded.

E. H. Butts and T. C. Townsend and England & Ritchie, for relator.

Price, Smith & Spilman, J. M. Woods, and James E. Greever, for respondent,

Miller, Judge:

Petitioner and relator, claiming to have been regularly and duly appointed by the County Court of Logan County to the office of justice of the peace for Logan District in said county, in the room and stead of Simp Thompson, resigned, is seeking by mandamus to compel the respondent to deliver to him the official docket, books and papers pertaining to and belonging to said office, or show cause, if any he can, why he should not do so.

It is conceded that to entitle petitioner to the relief sought, he must have shown a clear legal title to the office. The petition and alternative writ avers as a basis for petitioner's claim to the office and to the books and papers aforesaid, that on May 11, 1925, the respondent Simp Thompson resigned said office, the resignation being in writing and addressed to said court, and stating on the face thereof that it was to become effective on the first day of August, 1925; that on the 12tli day of May, 1925, at a regular session of said court held at its regular meeting place, at the court house of said county, the court entered an order accepting said resignation; and that on the 19th day of May following, it entered another order appointing one Ernest Thompson to fill the vacancy caused by said resignation, until the next general election.

But the further averment of the writ is that, at a regular session of said court, held at the same place, on June 9, 1925, the court entered an order, as it had the legal right to do, rescinding and revoking the appointment of said Ernest Thompson, who had not qualified nor given bond as such justice, and that by the same order and on the same day, said court appointed the petitioner to fill the said vacancy, who thereupon appeared before said court and executed the bond required by law, which was accepted and approved by said court, whereby he became and was entitled to exercise the rights of the office, and to receive and have possession of said books and papers. It is further averred, that notwithstanding his resignation and petitioner's appointment and qualification as such justice, respondent continues to exercise and usurp the powers of said office, and refuses to turn over to petitioner the books and papers pertaining thereto, and to which petitioner alleges he is entitled.

By way of defense respondent answers: First, that petitioner is not and never was properly appointed to said office, and does not at this time have the lawful title thereto, nor the right to said books and papers: Second, that on the 11th day of May, 1925, but under duress, he tendered his resignation, to take effect on August 1, 1925, but continued to perform the duties of his office, that on or about July 20, 1925, before his said resignation became effective, he withdrew the same, and that thereby said office never became vacant; and that he is now and continues to be the rightful incumbent, and is actually discharging the duties thereof.

That mandamus is the proper remedy in such cases is not controverted, so that it is unnecessary to consider further that question, quite elaborately discussed by counsel for relator. The only question on which the parties are in conflict are those involving relator's right and title to the office.

The first proposition of the respondent is that the constitution and laws of this state do not authorize a prospective appointment to fill a public office, and that the attempted appointment of Ernest Thompson, and the subsequent revocation thereof, and the attempted appointment by the county court of the relator, were therefore abortive and of no legal effect as a conference of title to the office upon him. It is argued that while section 30 of article 8 of the Constitution, and section 9 of chapter 4 of the Code, authorizes the county court to appoint to a vacancy, the vacancy in the office must have actually occurred before such power becomes consummate; wherefore the action of the county court upon which relator predicates his claim to the office was void and wholly without legal effect. For this proposition counsel for respondent rely mainly on Biddle v. Willard, Governor, 10 Ind. 62, and State v. Harrison (Inch), 3 Am. St. Rep, 663. The first case involved the validity of an election by the people to fill the vacancy to occur by the resignation of a judge, who had resigned to take effect at a day subsequent to the date of the election, and before the vacancy had actually occurred. The second involved the right of an appointee of the governor to an office held by the appointment of the general assembly, which had met and adjourned without having elected a successor to the then incumbent, whose term of office had expired by limitation before the adjournment of the general assembly. It was decided, in view of the particular provisions of the constitution and statutes of Indiana relating to the subject, that at the times of the election and the appointment vacancies had not occurred which could be filled thereby. Upon the principle of these decisions it is contended that the prospective appointment of relator by the county court before any vacancy had in fact occurred, was not only voidable but actually void, and conferred no title to the office on him. The position taken by counsel for respondent is that, as our constitution and statute, similar it is contended to the Indiana constitution and statute, only empowered the appointing power to appoint for a vacancy, and that until the vacancy has occurred, the power is non-existent, and the attempt to exercise the power prospectively is without any legal effect. Whether the Indiana cases are proper constructions of the laws of that state is not for us to decide; but we do not think our constitution and statutes should be given like interpretation. It is true that the authority of the county court is to fill a vacancy; and it is contended that as the commonlaw rule which required one elected or appointed to an office to serve, no longer obtains in this state, and that the right to resign an office is without the let or hindrance of any authority, and the power to refuse a resignation does not exist, the act of acceptance by the county court had no potential effect, and that its prospective appointment of relator and bis qualification before the resignation of the prior incumbent became consummate was void and of no effect.

As suggested in the argument, we thing we may take judicial notice that it has been the custom in this state for elective or appointive officers to qualify by taking the required oath and giving bond before the beginning of their terms of office. And conceding that the county court has no power to decline a resignation of a justice of the peace, and that its acceptance of such a resignation would add nothing to the effect of the resignation, nevertheless, as it was necessary that the resignation should be made to the appointing authority, the court had the right by acceptance to recognize the act of resignation, and. that there might be no hiatus in the office, and for convenience and the good of the public, to anticipate the time of the vacancy which was sure to occur at the time designated, by appointing another to the office, effective at that date. It is true that section 6 of article 4 of the Constitution, and section 2 of chapter 7 of the Code, with the exceptions mentioned, provide that all officers elected or appointed shall continue in office until their successors are elected and qualified. This would save the hiatus that might occur; but as the right to resign is recognized, it would seem to lie in consonance with good public policy that a resignation should be made to and accepted by the...