State ex rel. Judy v. Kiger

• Decision Date: 03 March 1970
• Docket Number: No. 12899,12899
• Citation: 153 W.Va. 764,172 S.E.2d 579
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Theodore Milton JUDY v. Marvin R. KIGER, Judge of the Circuit Court of Monongalia County, etc.

Page 579

172 S.E.2d 579

153 W.Va. 764

STATE ex rel. Theodore Milton JUDY v. Marvin R. KIGER, Judge of the Circuit Court of Monongalia County, etc.

No. 12899.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 28, 1970.

Decided March 3, 1970.

Syllabus by the Court

A writ of mandamus will issue to require a circuit court to discharge the ministerial duty of enforcing its original final judgment which was not subject to subsequent change or modification and which required a county court to proceed with all deliberate speed to redistrict the magisterial districts of the county, as provided by law, to comply with the provisions of Article VIII, Section 27, of the Constitution of this State.

John R. Goodwin, Morgantown, for relator.

Thomas C. Cady, Morgantown, for respondent.

HAYMOND, Judge.

In this original proceeding in mandamus the petitioner, Theodore Milton Judy, a citizen, voter and taxpayer of the City of Morgantown, in Monongalia County, West Virginia, seeks a writ to require the defendant, Honorable Marvin R. Kiger, Judge of the Circuit Court of Monongalia County, West Virginia, to comply with the original judgment of the Circuit Court of Monongalia County, West Virginia, rendered September 20, 1968, in a proceeding in mandamus then pending in that court, which directed the County Court of Monongalia County to redistrict the magisterial districts of that county as provided by law with all deliberate speed until accomplished in order to comply with the Constitution of this State.

Upon the petition and its exhibits this Court, on December 1, 1969, issued a rule returnable before this Court January 14, 1970. By agreement of counsel for the respective parties and by leave of this Court, this proceeding was continued until January 27, 1970, when it was submitted for decision upon the petition and its exhibits, the demurrer of the defendant to the petition, the answer of the defendant, the demurrer of the petitioner to the answer, and the briefs and the oral arguments of the attorneys representing the respective parties.

The material facts are undisputed and the questions for decision are questions of law.

On September 20, 1968, in a mandamus proceeding then pending in the Circuit Court of Monongalia County, in which the petitioner Judy was relator and the County Court of Monongalia County, West Virginia, and Robert B. Nestor, Melvin Rexroad and The Rev. Hugh Boone, members of the county court, were respondents, acting by its then judge, Honorable Don J. Eddy, who has since been succeeded by the defendant as Judge of the Circuit Court of Monongalia County, entered a judgment, to which none of the parties objected, which contained this provision: 'It appearing proper for the Court so to do, it is ORDERED that the writ prayed for is hereby granted and that the County Court of Monongalia County, West Virginia, their successors in office, proceed to redistrict the Magisterial Districts of Monongalia County, West Virginia, as provided by law, with all deliberate speed until the same is accomplished to comply with the requirements of the West Virginia Constitution.'

The foregoing order was not complied with by the county court and upon a petition by Theodore Milton Judy against the County Court of Monongalia County, West Virginia, and its then commissioners, John P. Ball, Melvin Rexroad and Joseph Kun, after sufficient notice and over the objection of Judy, the circuit court, on September 16, 1969, entered a judgment which contained this provision: 'It appearing proper for the Court so to do, said County Court shall proceed with redistricting of the magisterial districts of Monongalia County as previously ordered by this Court but may wait until the results of the 1970 Census are obtained. After this information is available, they shall complete redistricting immediately.'

According to the undenied allegations of the petition, the petitioner moved the circuit court to reconsider its previous ruling of September 16, 1969, and although the court was advised that the 1970 figures will not become available until 1973 and possibly 1974, the circuit court entered an order which reaffirmed its judgment of September 16, 1969.

Monongalia County consists of seven magisterial districts and the total population of the county, according to the 1960 census, is 55,617 and the total acreage of the county is 236,042, or 386.82 square miles. These districts and their areas and population are: Battelle District 36,096 acres, 1302 population; Cass District 22,214 acres, 4087 population; Clay District 40,633 acres, 3004 population; Clinton District 43,065 acres, 2998 population; Grant District 29,830 acres, 9964 population; Morgantown District, in which is located the City of Morgan and in which the petitioner resides, 25,523 acres, 30,443 population; and Union District 38,681 acres, 3819 population.

From the foregoing it is evident and undisputed that the districts are plainly and considerably unequal both in territory and population, contrary to the provisions of Article VIII, Section 27, of the Constitution of this State which provides that 'Each county shall be laid off into districts, not less than three nor more than ten in number, and as nearly equal as may be in territory and population.'

It is undisputed that the county court, though authorized by Section 2, Article 2, Chapter 7, Code, 1931, from time to time to increase or diminish the number of such districts, and change the boundary lines thereof as necessity may require, in order to conform to the same provisions of the Constitution of this State, has failed and refused to comply with the original judgment of the Circuit Court of Monongalia County of September 20, 1968, to proceed to redistrict the magisterial districts of the county with all deliberate speed until such magisterial districts are redistricted.

The petitioner contends that it is the mandatory duty of the Circuit Court of Monongalia County, acting by and through the defendant, its present judge, to require compliance by the county court and its commissioners with the judgment rendered September 20, 1968; that the circuit court was without jurisdiction to modify that order by its subsequent order of September 16, 1969; and that the duty to require compliance with the judgment of September 20, 1968, is ministerial or nondiscretionary in character and may be enforced by mandamus.

On the contrary the defendant contends that the enforcement of the judgment of September 20, 1968 is discretionary and that its discretion can not be controlled by mandamus.

Though it was within the sound discretion of the circuit court to enter or to refuse to enter its judgment of September 20, 1968, and such discretion is, of course, not controllable by mandamus, after the entry of that judgment, which was not modified during the term at which it was entered or appealed within the appellate period, it was the duty of the circuit court, at the instance of citizens, voters and taxpayers of the county, to require the enforcement of that judgment and such duty is not discretionary but is ministerial or nondiscretionary in character and may be enforced in a mandamus proceeding.

In Merrill on Mandamus, Section 186, the text contains these statements: 'The writ of Mandamus has been used most extensively to control and correct...