State Ex Rel. S. M. Notes v. Lane

• Decision Date: 14 December 1921
• Docket Number: 4505, 4506.
• Court: West Virginia Supreme Court
• Parties: State ex rel. S. M. Notes, Relator v. Howard C. Lane, Clerk, etc.

89 W.Va. 744

State ex rel. S. M. Notes, Relator

v.Howard C. Lane, Clerk, etc.

4505, 4506.

Supreme Court of Appeals of West Virginia.

Submitted December 10, 1921.

Decided December 14, 1921.

Submitted December 10, 1921. Decided December 14, 1921.

1. Mandamus Will not Lie to Compel Exercise of Discretionary Power Unless Refusal is Capricious, Fraudulent, or Results from Misapprehension of the Law.

Mandamus will not lie to compel an executive or administrative officer to do a particular act which he has refused to do where his action depends upon the exercise of judgment or discretion upon his part, unless his refusal is arbitrary, capricious or fraudulent, is based upon no substantial reason, and evinces a purpose to evade the due and faithful performance of his duties, or results from a misapprehension of law. (p. 748).

2. Same Will Lie to Compel City Clerk to Certify to Council Petition to Recall an Officer or Officers Under Provisions of Sec. 19. ch. 21, Acts 1915 (Municipal Charters), Being the Charter of the City of Wheeling.

Where a petition is filed with the city clerk under the provisions of § 19, ch. 21 of the Acts of 1915 (Municipal Charters) being the charter of the city of Wheeling, to recall an officer or officers, which is signed by more than twenty per cent, of the legal voters, as shown by the last preceding municipal election, the said clerk may not excuse his refusal to certify such petition to the council as provided by that act in order that the recall election may he held thereunder, upon the ground that the affidavit required by § 22 of the Act was not affixed to each individual paper constituting the petition, but is only affixed to the last page of several of the papers bound together as one, after the signatures thereon had been procured; nor upon the ground that all of the names contained on certain of the papers making up the petition must be rejected because some of them were not signed by the petitioners in person; nor upon the ground that all of the names contained on a particular paper must be rejected because the petitioner who made the affidavit to that particular paper withdrew his name from the petition after the same was filed. The action of the clerk in rejecting the names upon the petition under such circumstances results from a misapprehension of the law, and is without any substantial foundation, and justifies resort to the writ of mandamus to compel him to properly perform his duty. (p. 748).

3. Recall Petition of Persons Signing Same May Withdraw Name at Any Time Before Petition is acted Upon Effect of Such Withdrawal.

One signing a recall petition under the provisions of § 19 of the Wheeling charter above referred to may withdraw his name therefrom at any time before such petition is acted upon, but such withdrawal will not have the effect of nullifying the paper upon which his name is signed even though he is the petitioner who makes the affidavit thereto, (p. 751).

4. Same Appellate Court will Not Pass Upon Sufficiency or Truth of Grounds Stated in Petition.

This Court may not pass upon the sufficiency or truth of the grounds stated in a petition filed for the purpose of recalling officers under the provisions of the Wheeling charter above referred to. (p. 752).

(Miller, Judge, dissents).

Original jurisdiction.

Mandamus in case of State ex rel. S. M. Noyes against Howard C. Lane, Clerk etc. and others, in the recall of councilmen and city manager of the city of Wheeling.

Writ awarded.

John J. Coniff and B. S. Spilman, for relator.

J. J. P. O'Brien and J. II. Brennan, for respondents.

Ritz, President:

The relator seeks by these writs of mandamus to compel the clerk of the city of Wheeling to approve and certify to the council two petitions filed under the provisions of the charter of said city, one for the recall of the city manager, and the other for the recall of the members of the council.

Section 19 of the charter of the city of Wheeling, being chapter 21 of the Acts of the legislature of 1915 (Municipal Charters) provides for holding an election for the recall of municipal officers upon a petition signed by electors entitled to vote for their successors equal in number to at least twenty per centum of the entire vote cast at the last preceding municipal election. It is admitted that a little less than thirtyfive hundred petitioners is sufficient in number to meet this requirement, while the petitions presented in the one case were signed by more than sixty-six hundred, and in the other by more than sixty-eight hundred persons. The section above referred to requires that the petition shall contain a general statement of the grounds upon which the removal is sought. It further provides that the signatures need not all be on one paper, but that such general statement of the grounds shall be on each paper, and that each signer shall add to his signature his place of residence, and the street and number, and that one of the signers on each such paper shall make oath before an officer competent to administer oaths to the truth of the statements contained therein, and that each of the signatures is the genuine signature of the person whose signature it purports to be. Upon the presentation of such petition it is provided that the said clerk shall examine and ascertain whether or not such petition is signed by the requisite num- ber of qualified electors, and attach to said petition a certificate showing the result of said examination. If the result of said examinations shows said petition to be insufficient it is provided that the same may be amended within ten days, and that the clerk shall thereupon, after such amendment, make further examination, and if he ascertains the same to be sufficient he shall submit the same to the city council without delay, who shall thereupon order and fix a day for holding said recall election. If, on the other hand, the clerk finds said petition, as amended, to be insufficient, he shall return the same to the parties presenting it with his certificate to that effect. Section 22 of the Act provides that petitions provided for under the provisions of the charter shall be signed by none but legal voters, and that each petition shall be accompanied by the affidavit of one or more legal voters of the city stating that the signers thereof were at the time of the signing legal voters of said city.

Each of the petitions involved in these proceedings consisted of many sheets of paper. In some cases several sheets of paper were bound together and so filed, while in other cases each sheet was filed by itself. Printed at the head of each sheet so used, whether the same was bound together with others or not, is a statement of the grounds upon which the recall of the officers is sought, and at the bottom of each of these sheets is an affidavit in the form prescribed by § 19. There is also printed at the bottom the form of an affidavit as prescribed by § 22, but in some of the cases where several sheets were bound together the affidavit called for by § 22 is made only upon the last one of such sheets, the whole thereof being treated as one paper by the petitioners. The clerk of the city passed upon these petitions and found that they only contained about 1500 names which could be considered by him, and about 500 about which he had doubt, but that even considering this doubtful 500 there was only on the petition about 2000 names which could be treated as meeting the requirements of the Act, and this being an insufficient number, he certified that the petitions were not signed by the requisite number of legal voters.

The petitioners contend that the action of the respondent in refusing to consider by far the larger part of the names which he held could not be considered was arbitrary, capricious and fraudulent, and was without any substantial basis, wherefore they seek to compel him by mandamus to certify these petitions as...