State ex rel. Jones v. Ingram
| Decision Date | 01 March 1951 |
| Docket Number | No. 10366,10366 |
| Citation | 63 S.E.2d 828,135 W.Va. 548 |
| Parties | STATE ex rel. JONES et al. v. INGRAM, Recorder of the Town of Cedar Grove et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. The right of the incumbent of a public office, to which he has been duly elected and qualified, can not be questioned in a proceeding wherein such officer is not a party.
2. A writ of mandamus does not lie to compel the recorder and councilmen of a municipal corporation, organized under Chapter 8, Code, to fill an undeclared vacancy in the office of mayor, assumed to exist by reason of the alleged removal of the residence of such officer from the corporate limits of the municipality.
Chas. Ritchie, Harold H. Neff, Ritchie, Hill, Neff & Morris, all of Charleston, for relators.
James E. Maroney, Cabin Creek, for respondents.
The purpose of this original mandamus proceeding is to compel the recorder and members of the council of the Town of Cedar Grove to fill a vacancy allegedly existing in the office of mayor of that town.
The relators, Joe Jones, R. E. Green, Russell Lusk, M. M. Kinsolving and H. A. McQuillen, are residents and citizens of the Town of Cedar Grove. Respondent, Thomas Ingram, is the recorder of the Town of Cedar Grove, and respondents, Jennings Carpenter, Homer Carpenter, William Grady, Louis Kun, and Frank Settle are members of its council.
The Town of Cedar Grove, situate in Kanawha County, West Virginia, is a municipal corporation, organized and existing under the provisions of Chapter 8 of the Code of West Virginia.
Carlos Seabolt was elected mayor of the Town of Cedar Grove at the general election held on the 7th day of June, 1949, and thereafter he qualified as such officer and entered upon the discharge of his duties. Relators allege that in the month of February, 1950, Seabolt removed his residence from the town and established a residence in the Town of Shrewsbury, about three miles beyond the corporate limits of Cedar Grove, and that he continues to maintain his residence in the latter town.
Relators invoke the provisions of Code, 8-3-9, as authorizing the relief sought, asserting that one of the essential qualifications of the mayor of the Town of Cedar Grove is that he must be a resident of the municipality, a legal votel therein, and entitled to vote for the members of the municipal council. They contend that, because of the removal of Seabolt from the corporate limits of the Town of Cedar Grove, he thereupon became disqualified to act as mayor of such town; and that such removal of Seabolt created a vacancy in the office of mayor.
It is alleged that the respondents, though requested to do so, have refused to fill such vacancy, as provided by Code, 8-3-13, taking the position that no vacancy exists in the office of mayor.
Respondents, in their answer, allege that they are without knowledge as to whether Seabolt has established a residence in the Town of Shrewsbury; that he was duly elected and qualified as mayor of the Town of Cedar Grove; that he has served and is now serving in such office; that they do not have the power of removal; and point to the provisions of Code, 6-6-7, as the proper procedure for removal if the cause for such removal exists.
Without passing on the question as to the proper procedure for the removal of Seabolt from the office of mayor of the Town of Cedar Grove, we note the provisions of Code, 6-6-7, which authorize removal of a municipal officer upon charges filed by the prosecuting attorney of the county wherein a municipality is located, charges filed by any other officer of the municipality, or filed by five or more voters thereof. Such charges also may be filed by the chief inspector and supervisor of public offices of the state in certain instances not here pertinent. No proceedings under Code, 6-6-7, against Seabolt have been commenced or are now pending.
This Court has held that all corporations have the power to remove a corporate officer from office as a common law incident to the powers of such corporation. Richards v. Clarksburg, 30 W.Va. 491, 4 S.E. 774. See Town of Davis v. Filler, 47 W.Va. 413, 35 S.E. 6; McMillin v. Neeley, 66 W.Va. 496, 499, 66 S.E. 635.
It is provided by statute that, 'The mayor, recorder, treasurer and councilmen must be residents of such municipality, must be legal voters entitled to vote for members of its council, and for the year preceding their election must have been assessed with and paid taxes upon at least one hundred dollars worth of real or personal property therein: * * *.' Code, 8-3-9. Vacancies in the municipal offices are dealt with as follows: 'When a vacancy shall occur from any cause in the office of mayor, recorder or in the council, the vacancy, until the next succeeding election and until the qualification of an elected successor, shall be filled by appointment by the council from among the citizens of the town eligible under this article.' Code, 8-3-13.
If there is no vacancy in the office of mayor of the Town of Cedar Grove, the writ of mandamus prayed for should be denied. Is there a vacancy as a matter of law in such office? Relators contend that Seabolt's removal from the corporate limits of the Town of Cedar Grove ipso facto created a vacancy in the office of mayor of that town.
In some instances courts in other jurisdictions have adopted the principle that a public officer losing the qualifications for office required by law forfeits his office, upon a judicial determination that such qualifications have been lost. People v. Platt, 50 Hun, N.Y., 454; Yonkey and Another v. State on the relation of Cornelison, 27 Ind. 236; Relender v. State ex rel. Utz, Prosecuting Attorney, 149 Ind. 283, 49 N.E. 30. Cf. People v. Ballhorn, 100 Ill.App. 571.
A temporary removal from a county by a county officer does not vacate the office though the constitution of the state under which the officer held provides that his office should become vacant by an actual change of residence from the county. Curry v. Stewart, 71 Ky. 560, 8 Bush. 560. See Prather v. Hart, 17 Neb. 598, 24 N.W. 282. A municipal councilman of the City of Piqua, Ohio, who conceded removal from the ward for which he was elected was removed from office under a state statute and municipal ordinance requiring that a councilman be a resident of the ward or district from which he was elected. State ex rel. Attorney...
To continue reading
Request your trial
-
Adams v. Londeree
...of the city council of South Charleston. They rely on cases like State ex rel. Harwood v. Tynes, supra; State ex rel. Jones v. Ingram, 135 W.Va. 548, 63 S.E.2d 828; Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880; and Martin v. White, 74 W.Va. 628, 82 S.E. It is true, as pointed out in some ......
-
State ex rel. Schara v. Holmes
...title to the office in question, or the right of the incumbent to receive its salary, fees, or other incidents. State ex rel. Jones v. Ingram, 135 W.Va. 548, 63 S.E.2d 828; Ake v. Bookhammer, supra; Morrow v. City of Cleveland, supra, 73 Ohio App. at page 471, 56 N.E.2d at pages 337, 338; M......
-
Stowers v. Blackburn
...his resignation; or (4) by his removal from office. State ex rel. Hatfield v. Farrar, 89 W.Va. 232, 109 S.E. 240; State ex rel. Jones v. Ingram, 135 W.Va. 548, 63 S.E.2d 828; Calley v. Blake, 126 W.Va. 696, 29 S.E.2d In State ex rel. Hatfield v. Farrar, 89 W.Va. 232, 109 S.E. 240, in consid......
-
State ex rel. Warder v. Gainer, 12820
...150 W.Va. 373, 378, 145 S.E.2d 464, 467; State ex rel. Wayne v. Sims, 141 W.Va. 302, 308, 90 S.E.2d 288, 292; State ex rel. Jones v. Ingram, 135 W.Va. 548, 552, 63 S.E.2d 828, 830. The holdover status of the relator, however, does not preclude the power of the governor to reappoint the rela......