57 W. Va. 29 | W. Va. | 1905
Tiffs case presents, upon a writ of error to a judgment of the circuit court of Tucker county, the question whether mandamus lies to obtain admission to an office by a person elected or appointed thereto against another person holding over under the claim that his successor has not been elected and qualified.
The controversy arises between Joseph Kline, who, in November, 1903, was elected to membership in the Board of Education for the District of Davis in Tucker county, but failed to qualify within the time required by law, and was afterwards appointed by the superintendent of free schools
The scope of the writ of mcwidamus in controversies concerning the title to office has not been very clearly defined in this state, though there are several cases illustrating such use of it. The most important of these are Bridges v. Shallcross, 6 W. Va. 562, Goff v. Wilson, 32 W. Va. 393, Schmulbach v. Speidel, 50 W. Va. 553, and Dew v. Judges, 3 Hen. & Munf. 567. It has often been judicially declared that mam,-damms is a proper remedy for the trial of title to office, and will lie whei’e there is another appropriate remedy, because it is more speedy, and therefore a more adequate, remedy. Banton v. Wilson, 4 Tex. 400; Lindsey v. Luckett, 20 Tex. 516; Harwood v. Marshall, 9 Md. 83; Strong’s Case, 20 Pick. 484; Conlin v. Aldrich, 98 Mass. 557; Dew v. Judges, cited. On the contrary, it is more generally declared that mm da-mux is not the remedy for trial of title to office. People v. Olds, 3 Cal. 167; Meredith v. Supervisors, 50 Cal. 433; Warner v. Myers, 4 Ore. 72; People v. New York, 3 John. Cas. 79; People v. Stevens, 5 Hill (N. Y.) 616; Matter of Gardner, 68 N. Y. 467; Denver v. Hobart, 10 Nev. 28; Brown v. Turner, 70 N. C. 93; Fitch v. McDiarmid, 26 Ark. 482; Underwood v. White, 27 Ark. 382; People v. Treasurer, 36 Mich. 416; State v. Auditor, 34 Mo. 375; People v. Detroit, 18 Mich. 338; People v. Head, 25 Ill. 325; State v. Dunn, 12 Am. Dec. 1.
Por ,the purposes of this case it suffices to say that the writ of ma/ndcwnus is a proper remedy for the admission or restoration to office of one who holds the clear legal prima facie right to it. Upon this proposition, all the authorities agree. See State v. Dunn, 12. Am. Dec. 25, and the able and exhaustive note, reviewing the cases, at page 28. No case decided by this Court seems to go beyond this limit, nor is any instance recalled in which the jurisdiction by
Often the conditions under which the writ is awarded are different from those presented in this case. In Dew v. Judges, cited, it was directed, not to the wrongful incumbent of the office, but to the court whose duty it was to admit or restore the clerk. This relationship is characteristic of the larger number of the reported cases. But the writ may be invoked directly against the person holding the office, requiring him to admit thereto his successor; for it is a part of his official duty to turn over to his successor the books, papers and property belonging to the office and the insignia thereof. Thus, in Bridges v. Shallcross, cited, and in Goff v. Wilson, 32 W. Va. 393, the respondents, were, respectively, Shalleross and Wilson, the parties holding the offices in question. In the former, Shalleross was in office by appointment of one board and Bridges claimed the office by a subsequent appointment of another board, and the test of the right of the petitioner was the constitutionality of the legislative act in pursuance of which his appointment was made. Neither of the two boards, asserting conflicting authority respecting the appointment, was made a party to the proceeding, and the whole matter was settled upon the issue made between the incumbent of the office and the party who claimed as his successor. In the former case, the office in question was independent of the power of appointment by any inferior board or tribunal. In these cases the remedy was invoked against persons who had lawful^ and rightfully occupied the offices and were holding over after the expiration of their terms, awaiting the election or appointment and qualification of their successors. Such also is the present case, and the authorities uniformly hold that, under such conditions, the writ of mcmdmms will go,
On what ground the court based its action in refusing a peremptory writ of mamdcmm does not very clearly appear. The motion to quash the writ, the motion to dismiss the petition and the demurrer to the writ, as stated in the order, Avere all overruled, and yet the court refused the peremptory writ and dismissed the proceeding. The return does not controvert the election of the petitioner, his qualification after the time had expired, his subsequent appointment by the county superintendent nor his qualification after appointment. It does deny that there is any vacancy in the office
The conclusion, resulting from the foregoing authorities and reasoning, is that the court erred in refusing the writ and dismissing the petition. Therefore, the judgment will be reversed and a peremptory writ of ma/ndaonus will be awarded, commanding the respondent, McKelvey, to yield possession of the office in question to the applicant and turn over to him the insignia thereof.
Reversed.
Mandamus Awarded.
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