State ex rel. Morrison v. Freeland, 10631

Decision Date05 May 1954
Docket Number10632,No. 10631,10631
Citation81 S.E.2d 685,139 W.Va. 327
PartiesSTATE ex rel. MORRISON et al. v. FREELAND. STATE ex rel. MORRISON et al. v. HARBERT.
CourtWest Virginia Supreme Court

Syllabus by the Court.

1. A duly qualified member of a city council has such an interest within the meaning of Code, 53-2-4, as to enable him, as relator, to prosecute a proceeding upon an information in the nature of quo warranto to try the right or title of another person claiming membership in the council.

2. Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election.

3. In a proceeding upon information in the nature of quo warranto it is not necessary that relator allege that respondent was not entitled to exemptions granted to certain veterans by Chapter 120 of the Acts of the 1947 Legislature.

4. Circuit Courts have original jurisdiction of proceedings upon informations in the nature of quo warranto.

John S. Stump, Jr., H. Laban White, Jr., Clarksburg, for plaintiffs in error.

Clifford, Jones & White, Clarksburg, J. W. Maxwell, Beckley, for defendants in error.

GIVEN, President.

These proceedings were instituted in the Circuit Court of Harrison County upon informations in the nature of quo warranto, pursuant to the provisions of Code, 53-2-4. The circuit court sustained demurrers to the informations and, respondents having declined to amend, dismissed the proceedings. Questions involved upon the writs of error granted by this Court are identical and are considered together.

At the municipal election held for the City of Clarksburg on the third Tuesday in April, 1953, one of respondents, Andrew J. Freeland, was a candidate for the office of city councilman from the second ward and the other respondent, Fred Harbert, was a candidate for the office of city councilman from the fifth ward. The canvass of the election returns, made on April 24, 1953, about which there exists no dispute, established that respondents in their respective wards had received a majority of the votes cast for such offices. Certificates of election were duly issued, on May 4, 1953, and on that day respondents took and subscribed the required oath of office, and immediately attempted performance of the duties of their respective offices.

The relators are members of the city council of Clarksburg, and the basis of their contention, upon which they would try the right or title of respondents to the offices involved, rests upon the provision found in Section 12 of the charter of that city, enacted by the 1921 Legislature, which reads: 'No person shall be elected or remain a member of the city council who does not reside in the ward from which he is elected and who is not a freeholder of record in the city of Clarksburg'. Relators alleges that respondents were not freeholders of record in the City of Clarksburg at the time of the election.

The first ground of the demurrers of respondents, the ground upon which the circuit court sustained the demurrers, relates to the right of relators to maintain these proceedings, the contention being that relators are not persons 'interested' within the meaning of Code, 53-2-4, which, in so far as material, reads: 'In any case in which a writ of quo warranto would lie, the attorney general or prosecuting attorney of any county, at his own instance or at the relation of any person interested, or any person interested, may, in the name of the State of West Virginia, apply to any such court or judge thereof in vacation as is mentioned in the second section of this article for leave to file an information in the nature of a writ of quo warranto * * *. But if the leave to file such information be asked on the relation of any person, or by any person at his own instance, the summons thereon shall not be issued by the clerk until such relator or person shall give the bond and security required by the next preceding section. * * *'

It may be noticed that the statute contains no language attempting to ascribe to the word 'interested' any special or limited meaning. It is a word of common use but of wide and varied meaning, as shown by Webster's definitions thereof. This Court, however, and we believe in accord with the great weight of authority of other jurisdictions having similar statutes, has limited the meaning thereof in some respects. In State ex rel. Depue v. Matthews, 44 W.Va. 372, 29 S.E. 994, it is held: '1. In a proceeding by way of an information in the nature of a writ of quo warranto against a person who is claimed to have intruded into or usurped the office of sheriff of a county, such proceeding must be at the relation of some person interested, otherwise than as a citizen and taxpayer, unless such proceeding is instituted at the instance of the attorney general or the prosecuting attorney of the county.' This case is also authority for the proposition that a defeated candidate is not such an 'interested person' within the meaning of the statute, where such defeated candidate has no claim to the office involved, such as the right to remain in office until a successor has been elected and qualified. In State ex rel. Scanes v. Babb, 124 W.Va. 428, 20 S.E.2d 683, it is held that a de facto officer as such is not an 'interested person' within the meaning of the statute. See Bryant v. Logan, 56 W.Va. 141, 49 S.E. 21.

It is contended that the decisions of this Court indicate that the 'interest' required by the statute must be an interest in the office involved. We think, however, that the rule upon which the decisions rest, as indicated by the authorities cited therein, is that the Legislature could not have intended that an officeholder be subjected to litigation, as to his right or title to the office, at the hands of every citizen and taxpayer. This would not be in the public interest. It would not only tend to confuse and delay the exercise of the rights and functions of those elected or appointed to office, but would probably prevent the seeking or acceptance of public offices by many capable persons. The interest which we believe is necessary to maintain such an action under our statute must be some substantial interest, special or peculiar to the relator, either in his individual or official capacity, an interest not possessed by members of the general public as mere citizens and taxpayers. Authorities of other jurisdictions where statutes are similar to our own are at great variance. See Hammer v. Commonwealth ex rel. Hoover, 169 Va. 355, 193 S.E. 496; State ex rel. Gall v. Barnes, 136 Minn. 438, 162 N.W. 513, 1050; State ex rel. White v. Barker, 116 Iowa 96, 89 N.W. 204, 57 L.R.A. 244; Jones v. Riggs, 154 N.C. 281, 70 S.E. 465; Smith v. Reid, 60 S.D. 311, 244 N.W. 353; State ex rel. Murdock v. Ryan, 41 Utah 327, 125 P. 666; Vrooman v. Michie, 69 Mich. 42, 36 N.W. 749; People ex rel. Barton v. Londoner, 13 Colo. 303, 22 P. 764, 6 L.R.A. 444; People ex rel. Hiller v. Bevirt, 297 Ill.App. 335, 17 N.E.2d 629; State ex rel. Pooser v. Weste, 126 Fla. 49, 170 So. 736; 44 Am.Jur., Quo Warranto, Section 74. It will be noticed that a number of these cases decided under statutes similar to our own go so far as to hold that the interest of a citizen and taxpayer is sufficient to enable a relator to maintain a proceeding upon information in the nature of quo warranto.

The precise question to be determined here is whether members of a city council elected from certain wards have such an interest within the meaning of the statute to enable them to prosecute a proceeding in the nature of quo warranto, to have determined the right of another person to hold office as a member of that body from a different ward. We are cited no authority, and have found none, which seems directly in point. The charter of the City of Clarksburg provides for a city council of nine members. It also provides that five members thereof shall constitute a quorum, and that a majority vote of the members shall be necessary for the transaction of business, including the enactment of ordinances under which the municipality will be operated. Thus it will be seen that the vote of any member may often determine the success or failure of any motion before that body. This being true, can it be said, by any process of reasoning, that each member of the council is not interested, as an individual and as an officer, in having only properly elected officers participate in the transaction of the business of that body? Is not such interest of such dignity as to make it the duty of each member, either as an individual or as a member of that body, to prevent illegal or unauthorized participation in the voting on the important issues which must be settled by that body? Is not the interest of each member, because of the duties imposed, and the privileges granted, different and far more substantial than the interest of a mere citizen and taxpayer? We think it must be held that each member of the council is possessed of such an 'interest' as entitles him to prosecute such an action. We think it can not be argued with much force that one in such position has no interest in seeing that the business of the council is not controlled by a mere usurper of office. To so construe the statute does not unduly extend or broaden the field of potential relators in such proceedings as to make possible undue harassment of those willing to accept office. It is more likely to cause only those who are in fact qualified to hold office to seek office. To hold otherwise would so limit the use of the proceeding as to render it practically useless.

In 44 Am.Jur., Quo Warranto, Section 76, we find this statement: 'Where quo warranto is an available remedy to test the right to act as a director or other officer of a private corporation or...

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