State v. County Court of Wyoming County

• Decision Date: 31 March 1900
• Citation: 35 S.E. 959,47 W.Va. 672
• Parties: STATE ex rel. MATHENY v. COUNTY COURT OF WYOMING COUNTY et al.
• Court: West Virginia Supreme Court

35 S.E. 959

47 W.Va. 672

STATE ex rel. MATHENY v. COUNTY COURT OF WYOMING COUNTY et al.

Supreme Court of Appeals of West Virginia.

March 31, 1900

Submitted January 17, 1900

Syllabus by the Court.

1. A proceeding in mandamus is a civil proceeding,--a common-law process,--which may be in the name of the state at the relation of an individual, or simply in the name of the individual as plaintiff; that individual being in either case the real plaintiff.

2. Citizens or taxpayers of a county may, merely by reason of their interest as such, maintain mandamus, in a proper case to compel a county court to construct a new or repair an old court house.

3. Where a return to an alternative mandamus sets up new matter good as a bar, the plaintiff must file a replication; else such return will be taken as true, and call for judgment of non pros., dismissing the mandamus.

4. Any pleading setting up new matter, good in law, is taken for true, if not answered.

5. A mandamus will not go to compel a party to violate an injunction, even though the applicant for mandamus is not a party to the injunction.

6. A mandamus will go only to secure or protect a clear legal right, and not to accomplish a wrong, or the violation of the constitution.

7. Mandamus will not go, if it would prove fruitless or impossible of performance, or beyond the power or means of the party to whom it is directed to perform its commands.

8. A mandamus will not go to compel a county court to build a new court house, when its construction would impose a debt on the county beyond the means that can be raised by taxation, within the legal limit of taxation on the assessed valuation of property.

9. A county court will not be compelled by mandamus to build a new court house pending a proceeding to remove the county seat.

Error to circuit court, Mingo county; E. S. Doolittle, Judge.

Mandamus by the state, on the relation of M. F. Matheny, against the county court of Wyoming county and another, to compel the building of a court house. Judgment awarding the writ, and defendants bring error. Reversed.

A. W Reynolds and John M. McGrath, for plaintiffs in error.

H. K. Shumate, for defendant in error.

BRANNON J.

M. F. Matheny, prosecuting attorney of Wyoming county, on behalf of himself as such, and as a citizen and taxpayer of said county, as well as for other citizens and taxpayers thereof, sued out an alternative writ of mandamus against the county court of that county, and the commissioners (by name) composing it, with the object of compelling the court to build a new court house for that county. The defendants filed a return setting up various facts in bar of the writ, and a jury trial was had, resulting in a verdict for the plaintiff, the state of West Virginia, at the relation of said Matheny, and a judgment awarding a writ of peremptory mandamus compelling the county court to build such court house, from which judgment the county court obtained this writ of error. Matheny moved the court to dismiss the said writ, and thereupon Lewis B. Cook, George Chambers, and F. B.

Roach, stated in the order of the court to be resident citizens and taxpayers of the county, asked leave to be made relators in the case, and that it be prosecuted in their name and at their cost, in behalf of themselves and other citizens and taxpayers of the county; and the court dismissed the case as to Matheny, both as citizen and prosecuting attorney, and ordered that the case be thereafter proceeded in in the name of and on behalf of said Cook, Chambers, and Roach, as citizens and taxpayers, as relators, and the other citizens and taxpayers of the county. Afterwards the county court moved the court to quash the alternative mandamus for the reason that it should not have been revived in the names of Cook, Chambers, and Roach without notice to the county court, but the court overruled the motion to quash.

One point of exception to the judgment is this refusal of the court to quash the writ. It is laid down in that very late and excellent work, 13 Enc. Pl. & Prac., which contains an elaborate and excellent treatise on Mandamus, at page 755, that: "When the relator in mandamus is the real party in interest, his death operates as an abatement of the action. Where the relator is a public officer, his death does not affect the proceedings, as they may be continued by his successor." It would seem plain that the writ cannot be revived by a personal representative after the death of the relator, as a general rule. I would say, however, that depends upon the right involved. Considering it a civil suit, as I do consider mandamus, I would think that, if the case happened to be one involving a right of property, it might be revived and prosecuted in the name of the personal or real representative of the deceased relator or plaintiff, as the case might concern personal or real property. In such a case as this, it seems to me, it could not be revived in case of death. Still, that does not show, but may tend somewhat to show, that as it could not be revived in the name of a representative (High, Extr. Rem. § 437), so, if the real plaintiff dismisses his suit, it could not be continued in the name of a substituted plaintiff, deriving no interest from the former plaintiff. Who is the real plaintiff in a writ of mandamus? I answer, the relator, not the state. It is true that the case of State v. Long, 37 W.Va. 266, 16 S.E. 578, tells us that the alternative writ should run in the name of the state, and that it should be entitled, "The State, at the Relation of [the petitioner], against [the respondent];" but it is also stated there that the practice in this state of entitling the cause in the name of the relator, as plaintiff, prevails. JUDGE LUCAS cites several cases showing this. So that a writ of mandamus may be either in the name of the state of West Virginia, at the relation of a named individual, or merely in the name of that individual as plaintiff. I think that chapter 109 of the Code, and the case of Fisher v. City of Charleston, 17 W.Va. 595, and all other West Virginia cases, make this writ a civil action, purely. It is no longer a prerogative writ, any more than an action of debt; for, if a petition show a right in the person to the writ, he is entitled to it as a matter of right. In any view, the state is a mere figurehead, a nominal party, and Matheny was the real plaintiff; and it seems to me that, when he dismissed the suit, he being the only person named as plaintiff, the suit came to an end. Can mere citizens and taxpayers maintain a mandamus to enforce upon public officials the performance of public duties in matters concerning the public right? It would seem impolitic to allow every individual to interpose himself in public administration,--to intermeddle in it,--and thus produce litigation concerning public matters committed to public functionaries, except in cases where the attorney general or prosecuting attorney, or other officer to whom it falls by law to compel the performance of such public duty, refuses. There is great conflict of authority on the point. 13 Enc. Pl. & Prac. 630, says that in the greater number of states a private relator, even where the matter concerns public right, must show a special interest in himself, while High, Extr. Rem. § 431, states that, though there is conflict, yet the preponderance of authority favors the right of an individual to the writ in cases touching the public right. In this state, I think the case of State v. County Court, 33 W.Va. 589, 11 S.E. 72, warrants the right of citizens and taxpayers, interested only as such, to have recourse to mandamus to enforce a public right. Still, that does not show that, when Matheny abandoned his writ, there was any right in Cook, Chambers, and Roach to take up the cause, though Matheny had sued in behalf of all taxpayers. They must sue out a separate writ, showing cause and right for the same.

But, if I be wrong in this, the court erred in its procedure to revive. It revived without any notice to the county court, and in its absence, and before the day on which the cause had been set for trial. When a suit abates, a scire facias to revive it must be awarded. When these parties proposed to have the cause, upon its dismissal in Matheny's name, go on in their names, why was not the defense entitled to notice, so that they might contest the important step of continuing the case in the name of these substituted parties? The defense was entitled to call upon them to show that they were citizens and taxpayers entitled to prosecute the case, and the defense was entitled to show legal grounds why they should not be allowed to do so. These parties offered no evidence to prove their right to sue, by affidavits or otherwise, as would be required of them if applying for a writ of their own. High, Extr. Rem. § 10. This point is virtually decided in Fisher v. City of Charleston, 17 W.Va. 627, where the court held it error to revive a case against new councilmen of the city, without notice to the adverse party.

Second point: The alternative mandamus alleges as the ground for the relief it seeks that the present court house of Wyoming county is insufficient, and the return to it made by the county court denies that allegation of the mandamus, and thus raises an issue upon the matter alleged in the writ; and it would seem that as to that matter no replication is necessary, since it could only be a general replication, and no similar is required. But that return contains additional new matter set up in bar of the mandamus. It states that the county court in June, 1893, was about to erect a new court house at Oceana, the then and present county seat, and was enjoined from so doing by an injunction from the circuit...