In re Vineyard, 92 W. Va. 51

In re Vineyard

92 W. Va. 51 | W. Va. | 1922

Lead Opinion

MilleR, Judge:

Petitioners presented their petition to have us review the action of the attorney general in approving over their protest certain road bonds for Geary District, Roane County, authorized by the county court of that county after submission of the proposition involved to the voters of that district.

,.In accordance with section 3, chapter 57 Acts 1917, section 38, chapter 47A Code 1918, the attorney general has transmitted to the clerk of this court all papers, documents, evidence and' records 'which were hied before him, and also a *53written statement or opinion giving his reasons for his approval of said bonds, as required by statute.

We are asked to reverse the action of the attorney general upon several grounds. The first is that the description of the proposed road in the petition presented to the county court and the order of the court thereon, of July 11, 1922, were and are so vague as to have been misleading to the voters, and that the subsequent order of the court, of August 7th, pending publication of the notice required, attempting to supply the omissions of the former order was not published the requisite time before the election and was therefore abortive.

• As described in the petition and order of the court, the road to be improved was as follows: “Beginning at or near mouth of Hurricane, at hard road from Spencer, Walton to Clendennin, thence the most economical and practical route to intersect the state road from Clay, W. Ya. to Spencer, W. Va.”

The petition to the county court also contained the following appeal or petition to the State Road Commission, as follows: “We do further petition State Road Commission to locate said State road through Geary District from Clay, W. Ya. to Spencer, W. Ya.”

The order of correction of the county court, of August 7, 1922, referred to was as follows: “It appearing to the court that by oversight and inadvertence there was omitted from the order entered in this matter on July 11, 1922, the fact that the northern terminus of the road proposed to be improved as shown in former order, is to be at Newton, this county, the court doth now declare it to be its intention, if said proposed bond issue be approved at said election, to fix the northern terminus of said road at Newton, and to locate the same from the bridge at the mouth of Left Hand up Sandy to Newton.”

The order of. the county court, of July 11, 1922, submitting the proposition to the voters and ordering the election to be held on August 18, 1922, recites the petition and describes the road as proposed therein, and also recites the report in full of the road engineer, to whom by order of June 22, 1922, *54the subject of the probable cost of tbe corSfemplated construction was referred, which report shows that the road’ estimated by him was one from ‘‘Hurricane to Newton,” and the length, ‘‘twelve miles, 7,750 cu. yd. (Unclassified) per mile. ’ ’

As this report became a part of the order, and the order was published as the notice to the electors of the election, as required by law, we do not see how any voter could have been misled or deceived as to the location of the road. The order of the county court, of August 7, 1922, pending the publication of the prior order, and notice was merely declaratory of the former order, and though it was not published for the full time required for notices of such elections, after •the entry of the order, we do not think the omission was fatal, for without it we think the original order and the publication of it' constituted substantial compliance with the statute, so far as the description and location of the road to be constructed is concerned. The order of August 7th, supplementing the original, would bind the county court and prevent a subsequent departure from the original proposition as defined thereby. The contention that this order changed the beginning of the road from the mouth of Hurricane to the mouth of Left Hand is without merit. When properly read, the order means that the road was to begin at the mouth of Hurricane, then to go by way of the bridge at the mouth of Left Hand, and from there to Newton, to intersect with a state road referred to. in the petition to run from Clay to Spencer. That road had not yet been actually selected as a state road, but was manifestly one of the state roads contemplated, and if built as suggested would go by way of Newton. Certainly the one terminus .at the mouth of Hurricane, at the hard road from Spencer, Walton to Clendennin, was fixed and certain, and from there it was to go by the most economical and practical route to intersect the contemplated state road, thus leaving it to the discretion of the county court to determine what route would best fulfil the requirements. Moreover, to save this right, the order of July 11, 1922, Said: “The court understands and doth so order that the description of the road herein con*55tained is a general description, and' may be changed as to location from point to point or from place, to place when by so doing greater economy of construction is secured or greater good to the citizens of the county and to the state can be obtained.”

In response to this point of protest and in giving his reasons in disregarding it the attorney general refers to our cases of Chrystal v. County Court, 83 W. Va. 114, and Brown v. County Court, 78 W. Va. 644. The holding of these cases in substance and effect is that when petitioners in their petition fix definitely but one of the termini of a proposed road, or both in a general way only, the intention of the voters must be interpreted as leaving the exact beginning as well as the route of the road to the discretion of the’court, to be exercised under the general power of the court to locate and establish roads, bridges etc.

Of course when the voters by the referendum plainly tie the county court down to a particular plan and to definite termini and location and vote the money to construct a, road •in accordance therewith, the court can not materially vary therefrom in executing- the commission of the electorate. Harner v. County Court, 80 W. Va. 626; State v. England, 86 W. Va. 508.

Another proposition urged upon us in criticism of the approval of the attorney 'general is that copies of the order of the county court submitting the proposition to a vote of the electors were not “forthwith” posted by the clerk in a conspicuous place in his office and at the front door of the court house; that as a matter of fact such copies were not posted for nearly a month after the making of the order and only eleven days before the election, thereby ■ depriving the voters of the requisite notice required by section 106 of chap-tr 112 Acts 1921. The attorney general answers this proposition, saying that “forthwith” being a relative term, there was substantial, compliance with the statute. It now appears from' an amended affidavit of the clerk that he posted copies of said order in his office and at the front door of the court house on July 19, 1922, instead of August 8, 1922, as stated ■in a former affidavit, which was an unintentional error. If' *56posted on July 19th, there was substantial compliance with the statute as to posting it “forthwith”. There is no contention in this court that there was omission to publish the order in newspapers or to post the same at the voting places, ■as there was before the attorney general. His report shows that the petitioners were in error as to the facts respecting these matters, and they were apparently abandoned in argument here. Whether the reasons given by the attorney gen-ral for his conclusion respecting the time of posting be sufficient or not we need not say, for we see by the amended affidavit of the clerk, not controverted, that the copies of the order were posted, not on August 7th, but on July 19th, only seven days after the entry of the order and practically a month before the day of the election. We think there was substantial compliance with the law requiring posting forthwith.

As applied to public officers this term has usually been construed to mean within a reasonable time, in the reasonable course of the orderly conduct of the business of the office, with all reasonable dispatch, but always to be manifested by. the circumstances and the nature of the duty to be performed. 26 C. J. 997-8-9, and notes; Dickerman v. Northern Trust Company, 176 U. S. 181, 192.

The case as presented to us is not upon appeal or writ of error, but as upon original writ, as several times repeated in other like cases. The fact that the amended affidavit was not before the attorney general is therefore unimportant. It is now before us, and we ought not reverse his judgment and require him to disapprove the bonds when petitioners have not shown themselves entitled to such relief. An original writ will not be issued out of this court if in fact the basis for relief has no foundation and it will accomplish no purpose. West Virginia National Bank v. Dunkle, 65 W. Va. 210; Hall v. Staunton, 55 W. Va. 684.

As all other material points presented are comprehended and disposed of in those already considered, we will not fur-. ther consider them.

Our opinion is to approve the judgment of the attorney general and to deny the relief prayed for by petitioners.

Concurrence Opinion

Ritz, Judge

(Concurring in the result) :

I concur in the result denying to the petitioners any relief in this case, but upon the ground that this Court is without jurisdiction to consider the matters raised by the petition, for the reasons stated by me in my concurring opinion in State ex rel Allen v. England, 86 W. Va. 508-515. I consider. it unnecessary to again restate these reasons.

Opinion of Attorney General Approved.