28 W. Va. 158 | W. Va. | 1886
Opinion
Under the third section of Article VIII. of our present Constitution this Court has original jurisdiction in cases of mandamus (Warth’s Code, p. 23). By virtue of this provision of our Constitution there was presented to this Court a peti
The question now before us is whether a peremptory writ of mandamus, such as is asked of this Court, should be awarded.
I will consider first so much of the law in mandamus cases, as is necessary to determine this question, and then apply the same to this case as set out at length in the preceding statement. The proceedings in such eases have been so fully settled in this State, that in order to determine, whether the proceedings in this ease are such, as the law in this State requires, it will only be necessary to quote some of the points of the syllabus in Fisher v. The City of Charleston, (17 W. Va. 595). These points are as follows :
“1. The usual and proper mode of proceeding in this State in cases of mandamus is for the plaintiff to file a petition in the coui’t having jurisdiction of the case setting forth the facts of his case, on which he bases his claim to a mandamus, and praying for the writ, specifying in his petition the specific act or acts, which he asks to have the defendant com*167 manded to perform. The facts set out in this petition must be such as prima facie entitle the plaintiff to the relief he seeks, and the petition should be supported by affidavit, if filed by a private person. On filing of this petition which is ex, parte, the court, it a prima facie case is thereby made out, on the plaintiff’s motion makes an order, which reciting that the petition is filed orders, that the defendant after being previously served With a copy of the order to appear on a certain day fixed by the court and show cause if any he can, wherefore a writ of mandamus should not be awarded the plaintiff to command the defendant to do the specified acts, which command should correspond with that asked for in the petition. If on the return-day of this rule it has been served and the defendant files no answer, the court either orders a peremptory mandamus to issue against him or compels him to file an answer, as one or the other may be proper in the particular case. If he files an answer, and it be insufficient at law, the court proceeds as if no answer had been filed ; if it be sufficient in law, no peremptory writ of mandamus is then issued, but it the court sees, that there is a disputed question of fact between the parties, it should order an alternative writ of mandamus to be issued, and it does not permit a demurrer or replication to be filed to the answer to the rule; or the court may and usually does dispense with the issuing a rule to show cause why a mandamus should not issue, and immediately on the filing of the petition, if a prima facie case is thereby made out, orders an alternative writ of mandamus to be issued. The alternative writ sets'forth by distinct recital, and not by reference to the petition, all the facts necessary to show the plaintiff’s right to the writ of mandamus which he asks; and by it the defendant is commanded to perform the particular act specified in it (which should properly be the same as that stated in the rule or petition, but which may be different) or that cause be shown to the contrary in a given time. It is regarded as the plaintiff’s declaration. If the defendant does not make a return to this alternative writ, the ’court may either order a peremptory writ of mandamus or enforce the filing of a return, as may be proper in the particular case. The defendant may move to quash the alternative writ, which is equivalent to a demurrer to it, or he may*168 make a return. This return is regarded as his plea; and it may be replied to, and the pleading proceed, as in ordinary common law suits, till an issue of law or fact is reached and tried.
“ 2. To the pleadings in cases .of mandamus the ordinary rules of pleading are applied, neither greater nor less certainty being required in them than in the pleadings in ordinary common law suits. But the facts set forth by the plaintiff in the alternative writ of mandamus are set forth by way of recital and not in the positive manner that is required in an ordinary declaration in a common law suit.”
The sixth point of the syllabus in Fisher v. Ihe Mayor, Recorder, &c., of the City of Charleston (17 W. Va., 628) is: “The peremptory writ of mandamus must strictly follow the command of the alternative writ of mandamus.”
In the case before us it is obvious, that the petition to this Court, the substance of which has been set out in the statement of this case, and which was supported by a proper affidavit, set out facts, which -prima facie entitled the plaintiffs to the relief they sought; and this Court dispensed with the issuing of a rule to show cause why a mandamus should not issue, and after carefully considering the petition ordered an alternative writ of mandamus, or mandamus nisi, as it is usually called, to be issued. In this case it is obvious that, as in most cases, this alternative writ of mandamus answered ever}7 possible purpose, which a rule to show cause, why a mandamus should not issue, could have done. To have issued such a rule before the ■ alternative writ of m.andam,us was ordered would in this case have simply caused delay and trouble without effecting any useful end. On the return-day of this alternative writ of mandamus the defendants moved to quash it. This mandamus nisi was, as we have seen, the plaintiffs’ declaration and should have set forth by distinct recital, and not by reference to the petition, all the facts necessary to show the plaintiffs’ right to the writ of mandamus, -which they asked. The defendant’s motion to quash this alternative writ was equivalent to a demurrer to the declaration contained in the recital, with which the.writ of mandamus nisi, or alternative writ of mandamus commences. This Court without hesitation quashed this first alternative
This first alternative writ of mandamus was fatally defective in this also, that it simply commanded the county court of Cabell county to permit the petitioners to file at the July term, 1886, their said petition. We have seen, if on the return of this first alternative writ of mandamus a peremptory writ of mandamus had been issued, it would have had to follow strictly the command contained in this first alternative writ, and this would have availed the plaintiffs nothing; for they did not want simply tp file this petition in the county court of Cabell, they also wanted the county court of Cabell commanded to make an order submitting to a vote of the legal voters of said' county at the next general election the question of moving the county-seat of Cabell from the town of Barboursville and re-locating the same at the city of ITuntiugton. This Court promptly quashed this first alternative writ of mandamus but awarded at once another alternative writ returnable to June 28, 1886, at ten o’clock a. m. This second alternative writ was promptly issued, and the palpable errors above pointed out in the first writ were corrected. On the return of the second writ the respondents moved to quash it and also made a return thereto, which is set out at considerable length in the statement of this case.
There is, what may be perhaps regarded as one formal defect, in the second writ of mandamus nisi, the real declaration in this case. This writ is copied at length in the statement of the case. The recital in this writ sets forth, as it should, distinctly and not by reference to the petition all the facts necessary to establish the plaintiffs’ right to the writ of
All the other objections to this writ of mandamus wisi made by the respondents and their counsel go to the merits oí the case ; and it they are in law good and valid objections, as they are of such a character, that they could not be amended, they must end this case by a judgment in favor of the respondents.
The return made by the respondents, which, we have seen, is to be regarded as their plea, and which was demurred to by the plaintiffs, seems to me to be quite informal and to violate the correct rules of pleading in common law suits, which are applicable to it in some respects. I have set forth in the statement of this case the substance of this return. The first, second and third reasons given, why the mandamus nisi should be quashed, are really covered by the motion to quash, they being objections, which, if sound, appear on the face of the writ. For though the second of the assigned reasons is put forth in a form, as if some new facts in avoidance of the writ of mandamus nisi were brought forward, yet if such new facts were valid objections it would have been necessary to allege the reverse of them in the writ to make it good.
The only real pleas or defences set out in this return are the facts stated in the fourth or last reason assigned in said return why a peremptory writ of mandamus should not be issued. They amount in substance to an allegation, that the boundaries of the city of Huntington are so extensive, that the asking, that the county-seat of Cabell be located at the city of Huntington is not within the meaning of the statute such a designation of the place, as would justify the county court of Cabell in ordering a vote to be taken with reference to its location there. The facts contained in this fourth reason against the allowance of a peremptory writ of mandamus ave set forth at considerable length in the statement of the case and very much in the same manner as in the return by the respondent. This manner of stating these facts and making this defence, it seems to me, violates the rules of pleading in an ordinary common law suit. These rules of pleading are applicable to this return, which is really the respondents’ plea. And the plaintiffs have demurred to this
I would simply say that this demurrer to this return really covers all the questions involved in this case, because upon this demurrer we will look back to the first error in the pleadings and decide accordingly. If therefore there is a fatal error in the mandamus nisi, the case will be decided against the plaintiffs on this demurrer to the return. (People v. Ransom, 2 N. Y. 490; Commercial Bank v. Canal Commissioners, 10 Wend 26; Fisher v. The City of Charleston, 17 W. Va. 614). Therefore the case before us would really be essentially the same, if the respondents had' not moved to quash this mandamus nisi. The whole case is presented by the demurrer to the return of the respondents.
Having disjiosed of all the formal questions involved in this case, I now propose to consider it on its real merits as presented by the facts appearing in the mandamus nisi and in the return, which facts are really undisputed, except only that it would appear that the facts stated in the return are claimed to be exaggerated, as for instance the extent of the land included in the boundaries of the city of Huntington. But this diversity as to the facts is such as could, according to the views I entertain, in no manner affect the case on its merits.
Hirst — I will consider so much of the law in mandamus-cases as when applied to these undisputed facts will decide this case. It may be regarded as settled, that mandamus will lie to compel the performance of duties purely ministerial in their natuTe and so clear and specific, that no element of discretion is left in their performance. This, it would seem all the authorities concur, would justify the issuing of peremptory writ of mandamus. But the authorities differ much as
In this last case the county court was compelled by mandamus to admit a deed of emancipation to record, though it distinctly appeared, that before so doing they would have to make up their minds as to several doubtful questions of law. For instance in that case one of the attending witnesses thereto was dead, and the other resided out of the Commonwealth ; and though the proceeding to admit the deed to record was an ex parte proceeding, yet his deposition was taken to prove the execution of the instrument. Proof was also given of the handwriting of the deceased witness and of the maker. Questions arose in the case as to whether the slaves emancipated ^ by the deed could under the Virginia law appear in the proper county court by counsel and offer to prove the deed and ask to have an order made directing it to be recorded; and also whether this proof by deposition could be recorded or considered. The county court seemed to think, that under the law this deed of emancipation could not be by it legally ordered to be recorded, and refused so to do. But it was compelled so to do by mandamus, the Court of Appeals deciding each of these disputed law questions in favor of those offering to prove the execution of the deed and also that this proof was sufficient.
This ease would seem to proceed upon the ground that the question, whether certain duties are ministerial or judicial, depends upon the general nature of the duties to be per
In the Commonwealth of Virginia v. The Justices of Fair-fax County Court, 2 Va. Cas. 9, the General Court of Virginia, there being nine judges present, unanimously decided that a mandamus lies from a superior court of law to a county court to compel such county court to build a bridge or causeway according to the acts of assembly concerning public roads; (2Rev. Code of 1819,ch. 236,sec. 9,p. 236). This act is: “When a bridge or causeway shall he necessary, and the surveyor and his assistants can not make or maintain tin;,
“But if this doctrine be true, to the extent contended for in this case, then there is an end to the remedy by mandamus. For not one can be imagined where a court, a corporation or an individual can be called upon on the happening of any event whatever to perform an act, in which the body or person called upon, has not the right to inquire whether the event has happened, and whether under the circumstances of the case he or it is bound to perform the act. But the cases relied upon do not support the doctrine even in an inferior court exercising judicial functions. There are authorities which show that if a party has ascertained his right to particular judgment, and the inferior court, through mistake or perverseness, will not render that judgment, but will evade it by granting a new trial, or other improper means, and
“But there is no pretence to judicial powers. The court is merely substituted, in a certain event, in the place of the overseer ot the road, and the functions which it is required to perform in his stead, in the event of his incapacity, relate altogether to the police of the county, and are perfectly ministerial. They do not partakt so much of the nature of judicial power as the admission of deeds to record, and yet a mandamus lies to compel a county court to do that. Now, there is not one of the cases, to which the court has been referred, which intimates that persons acting in the character of police or ministerial officers can not on account of their discretion be coerced to perform their duty. * * * * If, then, the case does exist, and the court of the county refuses to execute the power without a lawful reason, on the mere pretext that they have a discretion to do as they like, it would seem pretty clear, that it could be coerced to do its duty by a mandamus, unless the law has furnished the public with some other specific remedy, which it is believed it has not.”
This case was decided as long ago as 1815. There is no question, but that this decision would not be approved or followed in many of the States, and the reasoning, on which it is based, has not been followed in many of the States. In some, however, this reasoning apparently meets the approval of the courts; and, it seems to me, that this case has in its spirit and reasoning been followed to a considerable extent by the Virginia courts, and that it should in the general reasoning, -upon which it is based, be followed by the courts of this State, though perhaps it should be somewhat modified. The distinction between judicial acts, the modes of performing which can never be enforced by mandamus, and ministerial acts, the performance of which as well as the mode of performing which may often though not always be enforced by mandamus, has often arisen in Virginia, because of the peculiar functions in Virginia of a county court. This is well pointed out in the case of Dawson v. Thruston, 2 H. & M. 135, in the opinion, of Judge Tucker, who says;
*177 “The county courts in Virginia act in a variety of character’s and capacities. They are judges of all suits and controversies within their counties either in actions at common law or in suits in chancery or in controversies concerning wills, letters of administration, mills, roads &c. In causes at common law and in chancery there must be both a complainant and a defendant, before the court can have jurisdiction or do any act. In the cases of wills, letters of administration, mills &c. their jurisdiction commences upon an ex parte motion, and the person moving to controvert it makes himself a voluntary defendant. * * * * They act moreover as a board of police for the county and in this character have no forensic jurisdiction; as in laying the county levy, recommending sheriffs, coroners, militia officers and justices of the peace, in which they act merely as ministerial persons: and though they act in their several capacities on the same day, the character in which they act is determined by the nature of the case. * * * * * When a deed is offered to be proved, the court quoad hoc sits as a court of registry only. It is to examine the witnesses as to the execution of the deed, or receive the acknowledgment, if presented and affirmed tobe acknowledged by the maker of it, as a matter of right and duty.”
Under sec. 24 of Art. VIII. of our present Constitution, as it has been amended, the judicial powers of the county courts have been much limited. They are no longer judges of suits and controversies between individuals either in actions at common law. or in chancery. But they still possess certain judicial powers in controversies concerning wills, letters, of administration, mills, roads &e. These', it has been decided, are judicial powers; and the performance of them in a particular maimer cannot be enforced by mandamus. Thus the county court can not be enforced by mandamus to open a road. (Jones v. The justices of Stafford, 1 Leigh 584). Except that their judicial powers have been limited, our county courts under our amended Constitution possess the same or even greater variety of powers than they formerly did in Virginia. And hence it nust often be inquired : What is the nature of a particular act done or refused to be done by them ? Is such act judicial or ministerial in its nature? Upon the determination of these questions in these particular cases will
In deciding such questions we should be governed largely, it seems to me, by the spirit, which has pervaded the courts ot Virginia in the determination of the same questions. Perhaps we maj’ regard it as proper to modify the decisions to a limited extent because ot the changes in the character of the county courts; but it seems to me, that the Virginia cases and the spirit, which pervades them, are entitled in questions of this character to much more consideration than the decisions of any other State. It may be very difficult to draw any very clear line between the cases, in which particular acts might be required to be done by the county courts, and the pe'rforcnance of them enforced by mandamus, and the cases, in which writ of mandamus could not be issued to compel a county court to do a particular act; and I shall not in this even attempt to draw such a line, as I conceive, that however difficult it might be to draw this line with exactness, there can be no doubt, that in the present case a writ of mandamus can beissued requiring the county court to submit to the voters of Cabell county at the next general election the question, whether the county-seat of said county shall be moved from Barboursville to the city of Huntington.
It is true that in Asberry v. Bennons, 6 Tex. 457 (55 Am. Dec. 791) it was decided, that “when statute requires chief justice of county to oi’der election for a seat of j ustice of the county, and prescribes that he shall canvass the returns in the manner prescribed by the laws regulating elections, such statute confides in him a personal trust distinct from his ordinary official duties, to be exercised according to the dictates of his own judgment; and so far as he acts in a judicial or deliberative capacity, his action cannot be controlled by mandamus; and further that his decision is final and conclusive, as no mode for reversing his decision is provided, either by special statute or by any general law.” One of the judges did not concur in these conclusions. The examination of the case will show, that by prior decisions in Texas apparently a different rule has been adopted from that to be deduced from the Virginia cases. Thus in Commissioners,
But if this Texas decision be regarded as correct, which is, I think, questionable, yet, I conceive, in this ease before us we can not hold otherwise than that the order, which should have been entered by the county court of Cabell directing a vote at the next general election to be taken on the re-location of the county-seat of Cabell at the city of Huntington, was one, which the court was required to make not in its judicial but in the ministerial character, and in which on the facts admitted in this case it had no discretion of any sort. Nor was it required to exercise any judgment whatever in making such order. It is true, that at the prior stage of the proceedings it- was required to exercise a certain judgment, as to whether the petition presented to it was signed by the requisite number of voters of Cabell county : But this judgment, which, it seems to me could not be regarded as a judicial judgment had already been, as the pleadings in this ease admit, exercised by the county court, and that court had decided, that the said petition was signed by the requisite n umber of voters. Having so decided, it seems to me clear beyond dispute, that nothing remained for the court to do but to perform the cl early ministerial actsof permitting this petition to be filed and ordering a vote to be taken at the next general election as prayed for in the petition. It had no further judgment of any sort to exercise.
The law, uncler which this proceeding was instituted 'is,
“Whenever the citizens of any county desire the re-location of their county-seat, they may file their petition for such relocation at a place therein, at any regular session of the county court in any year in which a general election is to be held in such county. But such a petition should not be filed at a session ot said court within ninety days next preceding such election. None but legal voters of the county shall sign said petition, and an affidavit shall be appended thereto that the subscribers to said petition are, as the officers verily believe, legal voters of said county. Upon the filing of such petition signed by one fifth at least of all the legal voters of the county, to bo estimated by allowing one vote for every six persons, as shown by the last preceding census, said court shall make an order that a vote be taken at the next general election to be held in said county npon the question of such relocation at the place named in said petition.”
It is admitted by the pleadings in this case, that the petition ‘required by this act was signed by 807 legal voters of said county of Cabell with the affidavit required by law appended, and that the signers of said petition exceeded one fifth of the legal voters of said county, when estimated, as required by the act, by allowing one vote for every six persons in said county, as shown by the last preceding census, taken in 1880. And this was adjudged to be the ease, when the said petition was presented to the county court of Cabell, at a regular session thereof m the year 1886, in which year a general election is to be held in said county on the Tuesday after the first Monday in November of said year, and that said petition was offered to be filed at a spring-term of said county court, held more than sixty days before said general election. If these facts be all admitted by the pleadings, it seems clear that nothingbut a ministerial duty remained to be performed by the court, which had nothing todo exceptsimply to permit this petition to be filed and make an order that a vote be taken at the next general election upon the question of the re-location ot the county-seat of Cabell at the city ot Huntington, the place named in said petition. These acts required iu -fact the exercise oi no judgment or discretion ot
They first say that the petition was insufficient in law. The only objection to this petition on its face claimed is, that the prayer of it is not such as the statute requires. The prayer is : “That the court will make an order that a vote may be taken upon the question of re-location at and to the city of Huntington aforesaid at the next general election to be held in said county on the Tuesday next after the first Monday in November, 1886.” The statute requires that “the petition shall be for the re-location of the county-seat at a. place named in the petition.” .But the county court by said statute had no power to re-locate the county-seat, but only, in the words of the statute, “to make an order, that a vote be taken at the next general election to be held in said county upon the question of such re-lócation at the place named in the petition;” and the petition asked the court to make this order, which is all the court could do under this act. The legislature rather loosely calls this a petition for the re-location of the county-seat, instead of describing it with more particularity by calling it a petition asking for the making of such order for a vote on the question of such re-location. But the inaccuracy of the legislature in styling this petition “a petition for the relocation of the county-seat,” does not render in the least degree obscure the character of the petition to be filed; and the petition admitted to have been offered for filing is exactly the petition, which this act prescribes. It did not pray the county court to do, what it had no power to do; nor did this act ever intend to prescribe, that such a vain and toolish thing should be insei’ted in such petition.
The second excuse of the respondents is, that there was no date to the petition and no proof, when it was signed, and therefore no proof, that, at the time it was signed, any of the parties, who signed it, were voters, though it was admitted, that they were all voters of the county, when the petition was presented to the county court. The statute says: “None but legal voters shall sign said petition,” and “when the filing
The third objection made by the respondents to the issue-ing of this peremptory writ of mandamiu, asked is, that the refusal to allow'- said petition to be filed was a judicial act, which can only be reviewed by writ of certiorari. Nowr it having been shown, that the petition offered was in the form prescribed by the statute and had attached to it the affidavit required by the statute in its exact words, and it being admitted by the respondents, that it ivas signed by the requisite number of legal voters of Cabell county, there remained no judgment or discretion of any sort in the court; its clear and imperative duty under the statute was to permit this petition te be filed and to make the order prayed for therein. If any inquiry had been made as to whether the signers were *. legal voters of the county, it seems to me, though this would have required judgment and discretion, yet it would not have converted a matter clearly ministerial in its character into a judicial act, simply because the performance of such ministerial act required the exercise of judgment. Such is the spirit of the Virginia laws. But even if they were to be dis
The fourth and last objection urged by the respondents as a reason, why the peremptory writ of mandamus asked should not be awarded it, that the statute requires the place, where it is proposed to re-locate the county-seat, to be named in the petition and order of the county court directing a vote on the subject of re-location to be taken at the next general election, and that the place named in this petition is the city of Huntington, which, the respondents say, covers abouttwelve square miles, so that in fact there is no place within the true meaning of this statute named in this petition as the proposed comity-seat; as under the vague name of the city of Huntington, the proposed location of the county-seat might be in one place or in another place some three or four miles off but still in the limits of the city of Huntington. How it does seem to me very clear, that by the requirements, that the place, at which it was proposed to re-locate the county-seat-, should be named, was meant the town or city, in which it was proposed to locate the county-seat, and not any particular place within such town or city; and that this exact locating of the site of the court-house, jail and other public buildings within the limits of the town selected as the county-seat must necessarily be left to the determination of the county court, after the town, which was to be the county-seat, has been selected by a vote of the people. It would seem clear, that there could not be a selection by the petitioners of the exact location of each of the public buildings and an insertion of this exact location in the order directing a vote to be taken on the re-location of the county-seat; for how could the petitioners in the county have known in advance what particular locality in the proposed county-seat they would be able to get, on which to build the court-house, jail and other buildings? But if there could be any doubt on this question, it is settled by the fact that under our statutes the county court may. at its pleasure change the location of the court-house,
. PEREMPTORY Mandamus Issued.