64 W. Va. 444 | W. Va. | 1908
In June, 1908, Ira C. Myers and Hiram Rubenstein applied to the counts^ court of Tucker counts' for leave to obtain a license to retail intoxicating liquors at the unincorporated village of Laneville, when Israel Weimer appeared before the county court and filed a written protest against the granting of such license and 118 other persons appeared and filed written protest against it; but the court granted its consent to the issuance of the license. Then Israel Weimer obtained from the circuit court a writ of certiora/ri to remove the proceeding into that court in order that the order of the county court granting such leave for license might be reversed and the license refused. Next, Myers and Rubenstein obtained from a judge of this Supreme Court a rule against the circuit court and Weimer to show cause why a writ of prohibition should not issue to prohibit further proceeding by the writ of certiorari-, and this rule we now decide.
It is contended that as one entitled to prosecute a writ of certiorcm must not only be a party to the proceeding, but must also have an interest in the litigation. Weimer cannot maintain the certiorari. Is not" that a question arising upon the certiorari, and cognizable upon writ of error, if it should
It is really not necessary to pass on the capacity of Wei-mer to maintain the writ of certiorari, because the subject matter does not justify that or any other legal remedy to reverse the decision of the county court granting or refusing-license. The Constitution, Art. VHI, section 24, gives the county court jurisdiction over the matter of granting license to sell liquors. The Code, chapter 32, section 10, Code 1906, section 922, says that such license “shall be issued only when authorized by the county court. ” And section 13, mentioned above, says that the county court “shall grant or refuse the license applied for. ” This power has long resided in the-county courts, in Virginia before the formation of this state, and in the supervisors and county courts since the formation of
There were thirteen persons sustaining the application fox-license and one hundred and eighteen against it. It is urged that the great preponderance in number of the remonstrants
It is stated in the return to the rule that one of the members of the county court is a brother of Myers; but it does not appear of record. Even so, would it effect the order? He has no pecuniary interest to debar him. Cheuvront v. Horner, 62 W. Va. 476. Moreover, no tribunal but the county court can act upon an application for license, and therefore, from necessity, even if there were such interest in a member of the court as would ordinarily disqualify, it would not do so in this instance. See cases cited by Judge PoeeeNbarger in Coal Co. v. Doolittle, 54 W. Va. on p. 231.
This case was orally argued upon the assumption that the written protests and the facts were in the record by bill of exceptions; but after going through the labor of preparing this opinion I discovered that there is no bill saved by the order of the county court. As the case was argued on the theory that such bill is a part of the record we shall so pass on the case, though we might state the fact as good reason for denying the right of certiorari and the award of prohibition. Jones v. Harmer, 60 W. Va. 479. It is not simply the want of evidence to show error on the hearing of the certiorari, which might be said to be properly considered then, but it is the case of a simple order of the county court granting license, without appearance of protest by anybody, and thus Weimer would not be a party so as to prosecute a certiorari, and this would justify a prohibition. Supervisors v. Gorrel, 20 Grat. 484, pts. 9 & 10. County Court v. Boreman, 34 W. Va. 87, holds that no one not a party to the record can prosecute a certiorari.
We have shown that the action of the county court was final, and that no certiorari or other appellate process from its action lies. It is argued that even if this is so, prohibition does not lie, but the remedy is by writ of error from final judgment upon the certiorari, and the circuit court cannot be arrested in its action by prohibition. As the matter was one of pure discretion in the county court, in which the circuit court could not intervene; as its intervention was without warrant of law, and invaded the rights of Myers and
We award the prohibition.
Writ Granted.