The Bd. Of Supervisors Op Mason County v. Minturn

• Court: Supreme Court of West Virginia
• Writing for the Court: MAXWELL, J.
• Citation: 4 W.Va. 300
• Decision Date: 31 January 1870
• Parties: The Board of Supervisors op Mason County v. WilliamT. Minturn.

4 W.Va. 300

The Board of Supervisors op Mason County
v.
William T. Minturn.

Supreme Court of Appeals of West Virginia.

January Term, 1870.

[4 W.Va. 300]

1. A petition for a mandamus is not verified by oath or affirmation, but the defendant appeared and moved the court to dismiss the rule issued, because the court had no jurisdiction on mandamus to review the proceedings of a Board of Supervisors. Held:

That such appearance must be regarded as waiving the wantof affidavit to the petition.

2. The writ of mandamus is a proper remedy to compel all inferior tribunals to perform the duties required of them by law, and when there is left to the inferior tribunal no discretion but to perform the duty in a particular way, by doing a certain specified act, then the inferior tribunal acts ministerially, and may be compelled by mandamus, not only to perform its duties, but to perform them by doing the certain specific act.

3. When there is left to the inferior tribunal any discretion to perform its duties in any other way than by doing a certain specific act, then such inferior tribunal can be compelled by mandamus to act and perform the duties required of it by law, but cannot be directed what decision shall be made. In such case the court has no jurisdiction by mandamus, and the decision of the inferior tribunal cannot be reviewed by mandamus. If any errors have been committed the proper mode of review is by certiorari.

4. The 4th section of the 7th article of the constitution of this State provides, that Boards of Supervisors "shall be the judges of the election, qualifications and returns of their own members, and of all county and township officers."

5. M. filed his petition and exhibits in the circuit court of Mason county, praying that a writ of mandamus be awarded him against the Board of Supervisors of said county, to compel said Board to permit him to give bond and qualify according to law, as treasurer of said county. A rule was issued by the circuit court, and the defendants appeared and moved the court to dismiss the rule, which was overruled. The defendants then demurred to the rule, petition and exhibits, and the demurrer was overruled by the court. Held:

That the circuit court of Mason county has no jurisdiction by mandamus to compel the Board of Supervisors to permit M. to qualify

[4 W.Va. 301]

and give bond as treasurer of the county of Mason, and that the court of said county erred in overruling the demurrer to the petition, for the writ of mandamus, and the demurrer to the rule, issued by the court against the defendants on said petition.

This was an appeal from a judgment of the circuit court of Mason county, rendered on the 6th day of September, 1867, upon a rule issued by said court against the Board of Supervisors of that county and Frederick Ford, upon the petition of William T. Minturn, praying a writ of mandamus against the Board of Supervisors to compel them to permit the petitioner, Minturn, to qualify and give bond as treasurer of Mason county. The rule was issued on the 21st day of March, 1867, and service of the same was waived by the defendants. On the 6th day of September, 1867, the cause was heard on the rule. The defendants craved oyer of the rule, the petition of the plaintiff, and the exhibits therein referred to, and moved the court to dismiss the rule on the ground that the court had no jurisdiction to review on mandamus the proceedings of the Board of Supervisors, mentioned and set forth in said petition, exhibits and rule, which motion was overruled by the court. The defendants again craved oyer of the petition,...