Submitted
June 19, 1893.
Syllabus
by the Court.
1.
Section 13 of chapter 47 of the Code, which requires members
of municipal councils to be freeholders therein, is
constitutional and valid.
2.
Certiorari, and not mandamus, is the proper remedy to review
the proceedings of a municipal council, under section 23 of
chapter 47 of the Code.
DENT
J.
The
following is the statement of facts taken from the brief of
the counsel for The defendants in error, to wit: "On the
5th day of January, in the year 1893, at an election in the
town of Hurricane, Putnam county, W. Va., a town incorporated
under chapter 47 of the Code, for municipal officers of said
town, John M. Thompson and C. A. Smith, residents of said
town, and entitled to vote for members of its common council
together with G. W. Dudding, J. P. Mynes, and M. L. Dunfee,
were elected to office of councilmen of said town for the
year commencing on the 1st day of February, 1893; the number
of councilmen for said town being five, the town not being
laid off into wards. On the 16th day of January, 1893, at a
meeting of the outgoing council, the returns of said election
were canvassed, and it was declared that the above five
persons received the largest number of votes at said election
for the office of councilmen of said town; and said council,
at this meeting, further decided, among other things, that
said Thompson and Smith were not duly-elected officers of
said town, because they were not freeholders therein, and further declared that W. L. Losee and W. S. Turley,
two members of the old council, but not elected to the new
council, should hold over as councilmen until their
successors were qualified,--the said Smith, at that time, and
at the time of said election, being in possession of a lot of
land in said town, which he owned by a title bond, and said
Thompson's wife, at said dates, owning in fee land in
said town. On the 17th day of January, 1893, the said Smith
and J. M. Thompson each bought land in said town, which was
conveyed to them, respectively, by deeds dated, respectively,
on the 17th and 18th of January, 1893. On the 20th day of
January, 1893, the said Thompson and Smith each duly took the
oath of office as councilmen of said town, and duly filed the
same with the recorder, or acting recorder. At the first
meeting of the new council, said Turley and Losee being
present and acting, on the 6th day of February, 1893, the
said Thompson and Smith presented themselves, and demanded
that they be admitted to the office of councilmen, and
permitted to perform
their duties as such, but they were refused and denied
admittance to their office. On the 11th day of February,
1893, the said Smith and Thompson obtained from the judge of
the circuit court of Putnam county a mandamus nisi to Wm. H.
McAllister, mayor; R. V. Dorsey, claiming to be and acting as
recorder; G. W. Dudding, J. H. Mynes, and M. L. Dunfee,
councilmen; and W. L. Losee and W. S. Turley, claiming to be
and acting as councilmen of said town,--commanding the first
five to admit said Thompson and Smith into the office of
councilmen of said town, and commanding said Losee and Turley
to surrender and turn over to said Thompson and Smith the
office of councilmen of said town. The defendants Dudding and
Mynes made return to said mandamus nisi that they were
willing, and had always been, to admit said plaintiffs to the
office of councilmen, and had made and seconded a motion to
admit them, but that the majority, including said Losee and
Turley, had voted against the motion. The defendants
McAllister, Dorsey, Dunfee, Losee, and Turley moved to quash
the writ of mandamus nisi, which motion the court overruled;
and, the said defendants not desiring to make return to said
writ, the court gave judgment for a peremptory
writ of mandamus to issue, from which judgment the last five
of defendants have obtained this writ of error and
supersedeas."
Appellants
assign these grounds of error in their petition for writ of
error, viz.: First, it was error in the circuit court to hold
the statute which requires councilmen to be freeholders
unconstitutional; second, the circuit court should have
sustained the motion to quash the alternative writ of
mandamus because, among other defects upon the face thereof,
the plaintiffs, claiming several rights, could not obtain a
joint writ of mandamus; third, said motion to quash should
also have been sustained because the alternative writ of
mandamus failed to make a case for the plaintiffs, or either
of them, to obtain the relief prayed for.
In my
opinion, there are only two questions suggested by the facts
in this case as proper, at the present time, for the
consideration of this court: (1) Is the law containing the
freehold requirement constitutional? (2) If so, have the
relators mistaken their remedy as to all other questions
raised by them?
1. In
determining this constitutional question, we find the rule
plainly laid down in the case of State v. Dent, 25
W.Va. 19, in these words, to wit: "Article 6, § 1, of
our constitution provides: 'The legislative power shall
be vested in a senate and a house of delegates.' This
obviously confers on them all legislative power, except such
as they are prohibited by the constitution, in other
provisions, from exercising." And the person claiming
that an act of the legislature is an infringement of the
restrictions of the constitution must point out the provision
plainly forbidding, either by express words or by inevitable
implication, the passage of such act; and, if none such
exists, the act, however unjust or unreasonable it may seem,
is valid, and must be sustained by this court. Judge Cooley,
as quoted approvingly in the above case, lays down the rule
that "any legislative act which does not encroach upon
the powers apportioned to other departments of the
government, being prima facie valid, must be enforced, unless
restrictions upon the legislative authority can be pointed
out in the constitution, and the case shown to come within
them." The defendants in error,
recognizing the binding force of this rule, point out three
sections of the constitution, all and each of which they
claim are violated by the act in question:
First.
Section 4, art. 4, which provides that "No person except
a citizen entitled to vote shall be elected or appointed to
any office, state, county or municipal." That because
this section forbids any persons except qualified electors to
hold office, by just implication, the converse of the
proposition is also included in the meaning of the section
that is to say, that all electors are duly qualified to hold
office. Such reasoning is very fallacious. This provision was
simply intended to limit the number from whom the various
officers of this state might be chosen to those having a
voice in the selection of such officers, and not in any sense
intended to determine the qualifications necessary to
properly discharge the duties of any office. For the electors
to say in the constitution adopted by them that "no one
but ourselves shall ever be elected or appointed to any
office in this state" does not, by implication, say to
the legislature, further, "You shall pass no law that
would prevent any of us from holding office," for such
an important matter as this would not be left to implication
if the electors had considered such a provision desirable.
While we have no decision in this state touching this
question, the highest tribunals of other states have
construed similar provisions in their state constitutions as
above indicated. In the case of Darrow v. People, 8
Colo. 420, 8 P. 661, the supreme court of that state, in
passing on the same question here raised, says: "Counsel
argue that section 6, art. 7, of the constitution provides
that 'no person except a qualified elector shall be
elected to any civil or military office in the state,' by
implication, inhibits the legislature from adding the
property qualification under consideration. There is nothing
in the constitution which expressly designates the
qualifications of councilmen in a city or town, and this
section contains the only language that can possibly be
construed as applicable thereto. But it will be observed that
the language used is negative in form; that it
simply prohibits the election or appointment to office of one
not a qualified elector. There is no conflict between
it and the statute. By providing that a supervisor or an
alderman shall be a tax-payer, the legislature does not
declare that he need not be an elector. Nor is the provision
at all unreasonable. On the contrary, it is a safeguard of
the highest importance to property owners within the
corporation. The right to vote and the right to hold office
must not be confused. Citizenship, and the requisite sex,
age, and residence, constitute the individual a legal voter,
but other qualifications are absolutely essential to the
efficient performance of the duties connected with almost
every office; and certainly no doubtful implication should be
favored, for the purpose of denying the right to demand such
additional qualifications as the nature of the particular
office may reasonably require. We do not believe that the
framers of the constitution, by this provision, intended to
say that the right to vote should be the sole and exclusive
test of...
