State ex rel. Ralich v. Millsop

• Decision Date: 14 July 1953
• Docket Number: No. 10563,10563
• Citation: 76 S.E.2d 737,138 W.Va. 599
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. RALICH, v. MILLSOP, Mayor, etc., et al.

Page 737

76 S.E.2d 737

138 W.Va. 599

STATE ex rel. RALICH, v. MILLSOP, Mayor, etc., et al.

No. 10563.

Supreme Court of Appeals of West Virginia.

Submitted April 14, 1953.

Decided July 14, 1953.

Syllabus by the Court.

1. Notwithstanding Section 4, Article IV, West Virginia Constitution, and Code, 8-3-9, have provided by general law for the qualifications of public officers, including members of the council of a municipal corporation, the electorate of a municipal corporation, may, under Chapter 56, Acts of the Legislature, Regular Session, 1937, the Municipal Home Rule Law, enacted pursuant to Section 39(a), Article VI, West Virginia Constitution, the Municipal Home Rule Amendment, amend a legislative charter of the municipal corporation so as to add qualifications to those prescribed by Section 4, Article IV, West Virginia Constitution, and Code, 8-3-9.

2. The provision of Subsection (F), Section 3, Article III of the Charter of the City of Weirton, which provides, in part, that a member of the Council of the City of Weirton shall '* * * Not hold any other appointed or elected office in the City or County except as hereinafter set forth in this charter', is constitutional, notwithstanding the qualifications set forth in Subsection (F) are not required by Section 4, Article IV, West Virginia Constitution, and Code, 8-3-9.

3. A member of the council of a municipal corporation, who is elected for a term of years, and receives remuneration for his services as a member of the council, is a public officer of the municipal corporation.

4. A justice of the peace, though elected for a particular magisterial district, is a county officer of the county in which the magisterial district lies.

5. Under Subsection (F) of Section 3 of Article III of the Charter of the City of Weirton, the office of member of Council of the City of Weirton is by operation of law vacated by the election to and assumption of office of justice of the peace for the magisterial district in which the ward represented by the member of council is located.

Fahey & Fahey, Weirton, for petitioner.

Handlan, Garden, Matthews & Hess, Wheeling, Carl Frankovitch, Weirton, Lester C. Hess, Wheeling, for respondents.

RILEY, Judge.

Invoking the original jurisdiction of this Court, the petitioner, Lee Ralich, has filed a petiton in mandamus, praying that he be awarded a writ of mandamus directed to the respondent, Thomas E. Millsop, Mayor of the City of Weirton, and George Rodak, Richard Jackson, Bernard Kelly, Calder A. Lyons, Patsy Standardi, and Glen Ferguson, Councilmen of the City of Weirton, and William Vagnoni, 'pretended' Councilman of the City of Weirton, commanding them as mayor and members of the council to recognize petitioner as Councilman for the First Ward of the City of Weirton; and that respondents rescind, cancel and annul their attempted appointment of the respondent Vagnoni, and that the respondent Vagnoni be compelled to vacate his claimed position as a member of the Council for the First Ward of the City of Weirton.

This Court on February 16, 1953, awarded a rule, returnable on February 24, 1953, but on the return day the case was continued to March 3, 1953. Respondents on the last-mentioned date filed their joint and several answer, to which the petitioner filed a replication; and on April 14, 1953, an 'Agreement and Stipulation as to Facts' was filed, and the case was submitted upon the oral arguments and briefs of counsel for the parties and upon the pleadings and agreement and stipulation as to facts.

From the petition, respondents' joint and several answer, petitioner's replication, and the agreement and stipulation as to facts, it appears that the case was submitted to this Court without any controverted issues of fact.

At the municipal primary election held in the City of Weirton in May, 1951, the petitioner was nominated by a substantial vote for the office of Councilman for the First Ward of the City of Weirton, and at the general election held in the City of Weirton petitioner was elected as Councilman for the First Ward in the City of Weirton by a substantial vote, having received 69.8 per cent of the votes cast, for a term of four years, beginning July 1, 1951.

As the result of a consolidation and annexation election held on the first day of April, 1947, the former City of 'Hollidays Cove', and the municipalities of 'Weirton Heights', 'Marland Heights', and certain previously unincorporated territory, became the City of Weirton, and by operation of law the Charter of the City of Hollidays Cove, said city having the largest population of the several consolidated municipalities became the Charter of the City of Weirton. (For the Charter of Hollidays Cove and its amendment, see Acts of the Legislature, (Municipal Charters) 1925, Regular Session, and Acts of the Legislature, Regular Session, 1931.)

Thereafter on April 25, 1950, the legislative charter and amendment were proposed to be amended and revised by submitting a proposed new charter to a vote of the electorate of the municipal corporation, and said election was held, the vote being cast at a special election held on that day. The majority of the votes cast were in favor of said proposed new charter, and the vote was so cast following the canvass thereof by the city council acting as a canvassing board.

The pertinent parts of Section 3, Article III of the Charter of the City of Weirton read: 'Qualifications of Elective Officers. Each candidate for Mayor or Councilman or to remain a Mayor or member of the City Council, shall * * * (F). Not hold any other appointed or elected office in the City or County except as is hereinafter set forth in this chapter. * * *'

The City of Weirton lies partially within Butler District of Hancock County, and partially within Cross Creek District of Brooke County. Butler District extends north of the limits of the City of Weirton, and Cross Creek District in Brooke County extends south of the limits of the City of Weirton.

In 1952 the petitioner Ralich was nominated and elected on the Democratic ticket as one of the two Justices of the Peace of Butler District, Hancock County; and, having qualified he assumed the duties of the office of justice of the peace on January 1, 1953, on which date he began a four-year term of office.

Under Section 1 of Article VI of the Charter of the City of Weirton it is provided that the regular council meetings of that city shall be held 'on the first Monday following the first Tuesday of each month'; and an ordinance adopted by the Council of the City of Weirton provides that council meetings shall be held in the council room in the City Building of the said city at seven-thirty o'clock in the evening.

The January, 1953, regular council meeting, which fell on the twelfth, was postponed, by consent of all of the respondents, except William Vagnoni, until January 14, 1953. At the meeting on the latter date the question was raised as to the claimed disqualification of petitioner under Subsection (F), Section 3, Article III of the Charter of the City of Weirton, to act as councilman, the asserted disqualification being based upon the postulate that petitioner could not hold any other appointive or elective office 'in the City or County.' Claimant, however, asserted that he had the right to hold both offices, that of Councilman for the First Ward of the City of Weirton and that of one of the Justices of the Peace of Butler District, Hancock County; and in furtherance of this assertion petitioner says that he was allowed to retain his regular seat in the council chamber and participate in the meeting held on January 14, 1953, and on that date he stated that he had authority sustaining his position that he could hold both offices.

Pursuant to an arrangement made by the respondent mayor, Thomas E. Millsop, and all of the members of the Council of the City of Weirton, other than petitioner, a meeting of council was held on January 16, 1953. Of this meeting petitioner had no notice, except such as he may have received through the press; and he was formally given no opportunity to be heard.

At this meeting the Council of the City of Weirton, petitioner not being present, evidently acting on the assumption that petitioner's acceptance and entry into the office of Justice of the Peace for Butler District, served to vacate petitioner's seat in the Council of the City of Weirton, proceeded to accept nominations for petitioner's successor, and William Vagnoni was selected by the members of the council then present to serve in petitioner's place and stead for the remainder of his term.

The petition alleges and the agreement and stipulation as to facts show that the office of Councilman of the City of Weirton is a 'part-time' office, the members of council being required to attend regular meeting of council only once each month and such special meetings as may be called from time to time; and that the office of justice of the peace likewise, at least in petitioner's case, is a 'part-time' office, for petitioner asserts that he intends to engage in his regular employment, keeping his office open through the services of a secretary.

The petition herein alleges and the agreement and stipulation as to facts shows that respondents' claim that petitioner became disqualified, after January 1, 1953, to serve as a member of the Council of the City of Weirton is based solely on the provision of Subsection (F) of Section 3 of Article III of the Charter of the City of Weirton, which provides that a councilman shall '* * * Not hold any other appointed or elected office in the City or County except as is hereinafter set forth in this charter.'

In their joint and several answer respondents admit that petitioner was duly and properly elected, qualified and assumed the duties of the office of member of the Council of the City of Weirton, and that he continued to hold such office and discharge the duties of...