Board of Supervisors v. Minturn

4 W. Va. 300 | W. Va. | 1870

Maxwell, J.

Minturn filed a petition in the circuit court of Mason county, and asked for a writ of mandamus to the Board of Supervisors of the said county, to allow him to qualify and give bond as the treasurer of the said county. A rule was awarded and made absolute, according to the prayer of the petition.

It is claimed here that the proceedings are irregular, for several reasons. It is first insisted that the petition is itself irregular, because it is not verified by oath or affidavit. 'When the defendants first appeared in the court below, they moved the court to dismiss the rule issued, because the court had no jurisdiction on mandamus to review the proceedings of the Board of Supervisors. It seems to me this must be regarded as waiving the want of affidavit to the petition.

After the motion which was made to dismiss was overruled, the defendant’s demurred to the role, petition and exhibits which demurrer was overruled by the court. It is now insisted here that the court below erred in not sustaining the demurrer. It appears from the petition and exhibits, that the Board of Supervisors refused to allow the said Minturn to qualify as treasurer, because it appeared to the said Board that he was not a voter in the State at the time he was elected. The 4th section of the 7th article of the constitution provides that Boards of Supervisors “Shall be the judges of the elections, qualifications, and returns of their own members, and of all county and township officers.” By the 4th section of the 3d article, it is provided that, “no person except citizens entitled to vote shall be elected or appointed to any State, county, or municipal office.” It appears that the Board of Supervisors, acting within the authority conferred upon it by the constitution, and for a cause designated therein, determined, by an order entered of record, that Minturn should not be allowed to qualify, and be inducted into the office to which he had been elected. TIad the court below, or any other .court the power to review and correct the decision of the Board of Supervisors in this case by mandamus ?

This writ is a proper remedy to compel all inferior tribunals to perform the duties required of them by law. When there is left to the inferior tribunal no discretion, but to perform the duty in a particular way, by doing a certain specific 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.

The case of Rex vs. Justices of Derbyshire, 1 Wm. Blackstone, 606; Dawson vs. Thurston, 2 Hen. & Mun., 132; Manns vs. Givens, 7 Leigh, 687; Delany vs. Goddin, 12 Gratt, 273; Conn vs. Hampden, 2 Pick., 414; Goshorn vs. B. S. of Ohio county, 1 W. Va. Rep., 308; Strong, petitioner, &c., 20 Pick., 484; Carpenter vs. County of Bristol, 21 Pick., 258, sustain this view of the case.

But 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. Chase vs. Blackstone Canal Company, 10 Pick., 244; United States vs. Lawrence, 3 Dallas, 42; Inhabitants of Springfield vs. Hampden, 4 Pick., 68; Carpenter vs. County of Bristol, 21 Pick., 258; Exparte Secomb, 19 Howard, 15. If the Board had no discretion in the exercise of the duties conferred upon it by the constitution, but to induct into office any person elected, to a county office, whether eligible or not, then the court had jurisdiction by mandamus, to compel it to allow the petitioner to qualify in the office to which he was elected, although at the time of his election he was not eligible. But if the board had the power for the cause named in the order of September 20th, 1866, to refuse to allow him to enter into the office, in the exercise of the duties conferred on it by the constitution, then the court had no jurisdiction by mandamus to direct what decision should be made. That the Board had the power to do what, it did do, cannot be questioned, and, therefore, its decision cannot be reviewed by mandamus. The proper mode of review would be by certorari, if any errors were committed. Cunningham vs. Squires, 2 W. Va. Rep., 447.

The demurrer should have been sustained. In the view I take of the case, the questions in the record subsequent to the time when the demurrer should have been sustained, do not properly arise in the case, and are not, therefore, considered.

The judgment complained of will have to be reversed, with cost to the plaintiff in error, and the demurrer sustained.

The other judges concurred.

Judgment reversed.