State Ex Rel. Westenhaver v. Lambert

• Decision Date: 14 January 1903
• Citation: 52 W. Va. 248,43 S.E. 176
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. WESTENHAVER. v. LAMBERT, Town Clerk.

43 S.E. 176

52 W. Va. 248

STATE ex rel. WESTENHAVER.

v.LAMBERT, Town Clerk.

Supreme Court of Appeals of West Virginia.

Jan. 14, 1903.

APPEAL—REVIEW—MOOT QUESTIONS.

1. A court will express an opinion on questions of law when it becomes necessary to do so in determining controverted rights of person's or of property, but it cannot decide moot questions or abstract propositions.

2. If, pending a writ of error to a judgment of a circuit court awarding a peremptory writ of mandamus commanding the clerk of a municipal corporation to place the name of the plaintiff, as a candidate for office, on the official ballot to be voted for in an election to be held in such corporation, the election hasbeen held and the alleged right involved has ceased to exist, the writ of error will be dismissed.

(Syllabus by the Court.)

Error to circuit court Berkeley county; E. Boyd Faulkner, Judge.

Application by the state, on the relation of D. C. Westenhaver, for writ of mandamus to A. F. Lambert, clerk of the town of Mar-tinsburg. Writ granted, and defendant brings error. Dismissed.

W. B. Lindsey, for plaintiff in error.

J. M. Woods, for defendant in error.

POFFENBARGER, J. On the 13th day of May, 1901, the judge of the circuit court of Berkeley county, upon the petition of D. C. Westenhaver, awarded an alternative writ of mandamus directed to A. F. Lambert clerk of the town of Martinsburg, W. Va., commanding him to place the name of said petitioner on the official election ballot to be used in the election to be held in said town on the fourth Monday in May, 1901, as a candidate for member of the council of said town, or to appear in answer to the writ on the 10th day of May, and show cause why he should not do so. On the return day, the defendant appeared, moved to quash the writ, and, the court having overruled the motion, filed his return in writing, denying, on the ground of insufficiency of the certificate of nomination and failure to file the same within the time prescribed by law, that the petitioner was entitled to have his name placed on the ballot. Upon a submission to the court and an agreed statement of facts, judgment was rendered for the plaintiff, awarding a peremptory writ, to which judgment Lambert sued out a writ of error.

It is apparent that lapse of time has eliminated the substance of the controversy, leaving only abstract questions of law for determination. More than 18 months have passed since the fourth Monday in May, 1901, and any decision now rendered, either affirming or reversing the judgment, would be wholly barren of practical or substantial results. It could neither enforce the alleged right of the petitioner to have his name printed on a ballot which has long since been prepared, used, and presumably destroyed, having fully performed its function, nor give to the defendant any relief against the plaintiff. It is the duty of courts to decide the rights of persons and of property when the parties interested cannot adjust their controversy concerning such right between themselves. Beyond this, there is no duty resting upon the court, nor any power or authority vested in them. It has long been settled law that, if one of the litigating parties, by purchase or otherwise, extinguish the claim of the opposite party, or if the parties, by collusion, endeavor to obtain from a court a decision upon a moot question, having no substantial right in actual controversy between them for determination, the court will refuse to take further cognizance of the matter, and dismiss the proceeding if pending, or decline to take jurisdiction If the status of the parties and object of the proceeding appear, when the aid of the court is Invoked. People of State of California v. San Pablo & T. R. Co., 149 U. S. 308, 314, 13 Sup. Ct. 870, 37 L. Ed. 747; Manufacturing Co. v. Wright, 141 U. S. 096, 12 Sup. Ct 103, 35 L. Ed. 906; Little v. Bowers, 134 U. S. 547, 10 Sup. Ct 620, 33 L. Ed. 1016; East Tennessee, V. & Y. R. Co. v. Southern Tel. Co., 125 U. S. 695, 8 Sup. Ct. 1391, 31 L. Ed. 853; Addington v. Burke, 125 U. S. 690, 8 Sup. Ct. 1391, 31 L. Ed. 853; Ratliff v. Patton, 37 W. Va. 197, 16 S. E. 464; Lord v. Veazie, 8 How. 255, 12 L. Ed. 1067; Paper Co. v. Heft, 8 Wall. 333, 19 L. Ed. 379; Williams v. Hagood, 8 Otto, 72, 25 L. Ed. 51; Hintragei-v. Mahoney (Iowa) 43 N. W. 522, 6 L. R. A. 50; O'Sullivan v. People (111.) 32 N. E. 192, 20 L. R. A. 143; State v. Tudor, 5 Am. Dec. 162; Kidd v. Morrison, 62 N. C. 31; Chamberlain v. Cleveland, 1 Black, 419, 17 L. Ed. 93; 3 Am. & Eng. Enc. Law, pp. 160, 341 et seq., and notes.

While the manner of the elimination of the substantial right which formed the basis of the controversy in this proceeding is not within the terms of the foregoing proposition, it is clearly within the principle stated and the analogy of the cases cited. In one of them, —State v. Tudor, 5 Day, S29, 5 Am. Dec. 162, —the status of the case was very similar to...