69 W. Va. 734 | W. Va. | 1911
On this application for a peremptory writ of mandamus, to compel the county court of Wyoming county to reconvene, as in regular session, and permit the filing of a petition for an 'election on the question of relocation of the county seat of said
The right of only five of the 987 petitioners to apply for this writ is also denied by the respondents. It is usual for one of the petitioners to ask for the writ on behalf of himself and all the others; but we do not regard this as essential. Equity principles require all persons interested in. the subject matte1’ of an equity suit to be made parties; but those principles seem not to apply in mandamus. Payne v. Staunton, 55 W. Va. 202.
Failure to tender with the petitions a bond, conditioned to pay all legal costs of holding the election, is relied upon as matter of defense. This bond must be given at the term of the
Right of the county court to postpone the election for four months and so place it in the year 1912, in which a general election will occur, is invoked as a bar to the relief sought, in reliance upon the statutory requirement for submission of such question at a general election, if one is to. be held in the year in which the petition is presented. This position is likewise clearly untenable, for the statute says, if the petition is filed in any year in which no general election is to he held, the question shall be submitted at a special election, to be called by the court and held not less than sixty days nor more than four months from the date of the order. The date of the filing of the petition, not of the election, determines the character and time of the election.
Alleged refusal of the county court to permit tender, presentation or filing of the petition, and denial of the charge raise the main issue. It was circulated and completed for filing at the regular term of the court, commencing on the 4th day of September, 1911. As that was a holiday, the statute authorized postponement of the sitting until the next dar?, and'no meeting was held until after dark and under circumstances strongly indicating intentional secrecy. No business was transacted. No opportunity was allowed any person to be heard. Though many citizens had come to the county seat on business with the court, it did not convene until all, or practically all of them, had returned to their homes, and such as remained, if any, were not advised of the secret meeting. Adjournment “until the first day of the next term” was the sum total of the court’s action, and the only ground or cause shown therefor was notice of an application for an injunction against the court, to prevent the issuance of certain orders for work, to be made at Beckley in Raleigh county, on September 7, 1911, a journey to which place required one day. This notice, together with necessity for appearance to resist the application was recited in the adjourning order. Had the court remained in session over Tuesday, September 5th, the members would have had the 6th for
Upon this state of facts, lack of demand by the petitioner and refusal of the court to comply therewith, are insisted upon. Of course, there was no formal demand. The court prevented it by its clandestine meeting and adjournment. The petitioners were upon the ground ready to make the demand at the time appointed therefor by law and would have made it, had not their attempt to do so been frustrated in the manner shown. While this was not a technical, formal demand, it was, under the circumstances, an obvious equivalent thereof. The law does not require an impossibility on the part of an applicant for performance of public duty. Indeed, many authorities hold that no demand therefor need be made. 26 Cyc. 181; 19 A. & E. Enc. L. 759-60. Whether this is the correct principle, we deem it unnecessary to say, inasmuch as an effort to make it is beyond question. The filing of the petition was a requisite precedent act on the part of the petitioners. Likely that would have been a sufficient demand, since the statute makes it the duty of the court, upon the filing of the petition, to order an election. Prevention of performance of this precedent condition excused it, just as an actual tender of money is excused, if the party to whom the tender should have been made signified his intention not to receive it'. No reason is perceived why this principle so generally recognized and enforced in other proceedings and relations, should not apply here. It is a salutary and necessary one. But for it, parties would be put to the trouble of vain and useless acts, and rights defeated by pretexts, subterfuges and technicalities. That a formal demand is not necessary and is
The clandestine meeting and adjournment of the term also amounted to a refusal to perform the duty imposed upon the court by the statute in behalf of the petitioners. A formal and express refusal to act is not necessary. Any conduct on the part of the officer or tribunal, under a duty to perform, signifying unequivocal intention not to do so, amounts to a refusal. Merrill on Mand.,’ sec. 225; State v. Trustees, 4 Nev. 400; State v. Wrightson, 56 N. J. L. 126; State v. Rotwitt, 15 Mont. 29; Brant v. Murphy, 68 Miss. 84; State v. Board, 38 N. J. L. 259; Goodwin v. Railway Co., 13 U. C. C. P. 254; People v. Supervisors, 20 N. Y. 252. It has been held that refusal or conduct amounting thereto, in advance of the time of performance, justifies the awarding of the writ in .advance of such time; Brandt v. Murphy, cited, State v. Wrightson, cited, State v. Rotwitt, cited; and also the unreasonable delay, with the manifest intention not to perform, will sustain an application for the writ. Mandamus, though an extraordinary writ, cannot be averted or denied upon unsubstantial and pretextual grounds. It is a highly remedial writ. Though extraordinary in the sense that it is designed to give relief under conditions which make the delay of ordinary remedies highly prejudicial or such remedies wholly inapplicable, when such a case arises, the remedy is not to be barred by shifts, devices or subterfuges. If it could be, it would prove ineffectual, in many instances, to accomplish its obvious purpose.
In opposition to the inference of intent to prevent the filing of the petitions and so avoid the sequential duty imposed upon the court, lack of evidence of knowledge on the part of the court of the purpose of the petitioners to file the same is insisted upon. Ignorance of the circulation thereof, on the part of the members' of the court, is hardly probable. They must have gone all
In response to the argument against the power of this Court to re-convene the county court for the purpose of permitting the filing of the petition and action thereon, it suffices to quote the following declaration of law in Mann v. County Court, 58 W. Va. (Sol: “A court or other tribunal, charged with the performance of a mandatory duty at a given, term or session, which adjourns without having performed such duty, may be reconvened and compelled to perform such duty, by mandamus, and the act, when so clone, will .be deemed to have been performed at the term or session at which the law required it to be done.” In that case, we held that, as to the matter of action upon a petition for an election on the question of relocation of a county seat, there had been no adjournment of the regular term. The court was still in session for the purpose of that petition, provided proper steps 'were promptly taken to compel it to act upon the same. The county court and parties in that case presumably had no difficulty in following our direction, since this Court heard no more of the controversy; and, if the parties interested in this one, are disposed to obey the mandate of this Court in good faith, they will have no difficulty in complying therewith. It is only necessary for them to agree upon as early a date as may be practicable and meet and allow the petition to he filed and act upon it in accordance with law. How they shall proceed is very clearly indicated in Doolittle v. County Court, 28 W. Va. 158, and Mann v. County Court, 58 W. Va. Gol. These directions need not be repeated here.
For the reasons stated, a peremptory writ of mandamus will be awarded, commanding the county court of Wyoming county and the commissioners thereof forthwith to re-convene and per
Writ Awarded.