State Ex Rel. M. Collier. v. County Court Of Mingo County.

• Decision Date: 02 December 1924
• Docket Number: No. 5267.,5267.
• Citation: 97 W.Va. 615
• Court: West Virginia Supreme Court
• Parties: State ex rel. M. Collier et al. v. County Court of Mingo County.

97 W.Va. 615

State ex rel. M. Collier et al.

v.County Court of Mingo County.

No. 5267

Supreme Court of Appeals of West Virginia.

Submitted October 28, 1924.

Decided December 2, 1924.

1. Prohibition Writ of Prohibition Will Issue Against County Court Threatening Extra Judicial Action Affecting Interests of Residents and Taxpayers, on Their Relation, Though Not Privately Affected.

Where a county court threatens extra-judicial action affecting the interests of residents and taxpayers of a magisterial district, a writ of prohibition may be awarded at their relation, even though they do not have any interest in the subject matter different from that possessed by other members of the general public. (p. 516.)

(Prohibition.: v2 Cyc p. 622).

2. Same To Warrant. Prohibition. Act Threatened Must Be Judicial or Quasi Judicial: If Act Threatened Legislative or Merely Ministerial. Prohibition Will not Lie. To warrant prohibition the act threatened must be judicial or quasi-judicial in its nature; if legislative or merely ministerial the writ will not lie. (p. 618.)

(Prohibition, 32 Cyc. pp. 600, 601).

3. Same Petition Should Specifically Show Act or Acts Threatened to be Done and Sought to be Prohibited.

The petition for the writ should show specifically the act or acts threatened to be done and sought to be prohibited, (p. 618.)

(.Prohibition.:32 Cyc D. 626.

Note: Parenthetical references by Editors C..1. Cyc. Xot part of syllabi.

Original proceedings by the State, on relation of M. Collier and others, against the County Court of Mingo County for-writ of prohibition.

Writ denied.

Bias & Chafin, for petitioner.

G. R. C. Wiles, for respondents.

Meredith, President:

Two of the plaintiffs as residents, citizens and tax-payers of Warfield District, and the other two plaintiffs, residents. citizens and tax-payers of Harvey District, Mingo County, suing on behalf of themselves and all other residents, citizens and tax-payers similarly situated in the two respective districts, by writ of prohibition seek to prevent the County Court of Mingo County and the commissioners thereof from treating or considering as valid a certain order which the County Court claims to have entered on August 15, 1924, purporting to consolidate the two districts into one under the name of "Harvey District," on the ground that the alleged order is invalid, because, among other reasons, the County Court was not in session when the order was entered.

The respondents moved to quash the rule heretofore awarded on the ground that petitioners can not maintain the writ as residents, citizens and tax-payers suing on behalf of themselves and all others similarly situated, because they have no special personal interest.

The facts in this case fully appear from the opinion written by Judge Lively in the case of County Court of Mingo County v. Bailey, Judge, handed down by this court October 14, 1924. The circuit court had awarded an, injunction at the instance of Collier and others, residents, citizens and taxpayers of the two districts, inhibiting the county court from carrying out its alleged order and directed the County Court to expunge the order from its records, on the ground that it had not been lawfully entered. In that instance, we held the circuit court was without jurisdiction and awarded the writ. The petitioners in the present case seek to have done by prohibition what we held they could not obtain by injunction. The matter has simply been transferred from a court of equity to a court of law. The question involved is in substance the same. The ground for awarding the writ was that the complainants in the chancery cause did not in their pleading show that they would be subjected to any special injury of a private nature, as distinguished from that which they would suffer in common with the general public. Does such a rule obtain in prohibition? We think not. At common law the relator need have no personal interest in the proceedings sought to be prohibited. The writ would issue upon the application of a stranger to the record of the suit or proceeding sought to be prohibited. The original theory upon which the writ issued was that where an inferior court usurped jurisdiction or exceeded its jurisdiction it acted in contempt of the sovereign the fountain of justice and the source of jurisdiction. In modern practice the state stands in the relation of sovereign; so that any court, proceeding in excess of the jurisdiction conferred upon it, in principle acts in contempt of the state. 2 Spelling's Inj. and Ex. Rem. §§ 1745, 1746; High's Ex. Rem. §779; Mayo v. James, 12 Graft, (Va.) 17; Worthington v. Jeffries, L. R. 10 C. P. 379; State v. Burckhart, 87 Mo. 533; Thompson v. Tracy, 60 N. Y. 31; State v. Superior Court, 7 Wash. 77; 7 Comyn's Digest (5th ed.), 141; 8 Bacon's Abridg. 210.

In St. Mary's v. Woods, Judge, 67 W. Va. 110, 67 S. E. 176, 21 Ann. Cas. 164, this court held that "A city, or persons who are residents and tax-payers in it, have such interest as will enable them to maintain a writ of prohibition against a circuit court which is proceeding to amend the charter of such city without jurisdiction to do so in the particular case.'' If citizens could maintain prohibition in that case we see no reason why they may not do so in this, in so far as their right to be the relators is concerned. The petitioning! citizens in that case showed no special personal interests beyond those possessed by all citizens similarly situated. Both Spelling and High in the sections above cited say that the strict and highly technical rules with respect to parties which apply to most other extraordinary remedies, do not apply to a proceeding in prohibition, owing to the fact that it is regarded more than others as a matter of public interest, in which the state is largely interested. So we hold that the relators need not show any special interest beyond that shared in common with others similarly situated, and that they have suffiicent interest, if any need be shown, to be relators in the cause.

Other grounds urged on respondents' motion to quash are: (1) that the action sought to be prohibited is legislative or governmental, and not judicial or quasi-judicial; (2) that prohibition will not lie to review or control the action of an inferior court, where it has jurisdiction of the subject matter, although in the exercise thereof it has proceeded erroneously; and (3) that being a preventive remedy only, it can not be invoked to review a proceeding already completed.

It is well settled that prohibition lies only against courts or tribunals exercising judicial or quasi-judicial powers. What are the matters sought to be prohibited? It is charged: (1) that the consolidation order is void, and petitioners seek to prohibit the county court from treating it as valid; (2) that unless this is done, the county court will treat Warfield District as abolished and the two districts as one; (3) will treat all offices heretofore existing in Warfield District as abolished, and all officers of that district in office as removed from office, and will impose upon the district officers of Harvey District the functions and duties of officers of what is and has been Warfield District; and (4) will impose upon the so consolidated districts and the tax-payers thereof "all debts, including the bonded and current debts of both of said districts, and levy and assess...