50 W. Va. 528 | W. Va. | 1901
J. E. Roberts, George Edwards, W. H. Eneck and W. E. Crow filed in the circuit court of Marshall County certain charges against S. R. Davis,a commissioner and president of the county court, and upon them sought the removal of Davis from his' 6£Sce and a trial before a jury of said charges was going on in said court, when a paper was presented to the court showing that' Davis had resigned his office, and that his resignation had been accepted, and thereupon the court entered an order stating that as the proceeding was merely one to remove Davis from office, and as he no longer occupied the office, the proceeding was dismissed, reserving the question of costs for further consideration; and later the court acted on the motion of the prosecution fox a judgment for costs in the prosecution of the charges, and expressed the opinion that no costs were recoverable in, such a proceeding for want of a -statute authorizing them, and denied any judgment for costs. At the time of the dismissal of the proceeding the prosecutors of the charges had submitted substantially all of their evidence, but had not rested their case, and counsel for Davis stated that the resignation of Davis was not to be taken as an admission or-confession, but that it was occasioned solely by his unsuccessful candidacy for re-election on the day preceding, and by his desire to avoid additional expense in the proceedings. The said Roberts, Edwards, Eneck and Crow having been thus refused costs, obtained from this Court a mandamus nisi against Judge J. R. Pauli, as judge of said circuit court, to compel him to render judgment for such costs of prosecution.
The first question in the case is, does mandamus lie, even if the judgment o£ the circuit court refusing costs were .erroneous? I answer that it does not. Whether or not costs should have been awarded was a judicial question in a proceeding of which the circuit court had jurisdiction. If the circuit court had refused to act upon the question of costs, then a mandamus to compel it to take action would undoubtedly lie under the principles stated in Wheeling Bridge Co. v. Paull, 39 Va. 142, ‘‘that mandamus is the proper reihedy to compel the exercise of jurisdiction by the circuit court, which it is erroneously refusing to assume contrary to the express provisions of a constitutional and valid statute.” But remember 'that the court did not^ refuse to
The second question presented by the record is, whether Judge Parxll’s judgment refusing costs is erroneous. We hold that it is not. The statute, Code 1899, chapter 7, section 7, under Avhich this removal proceeding was had, makes no provision for costs. The proceeding is purely statutory, only what the statute enables the court to do can be done. The petitioners appeal to Code, chapter 138, section 8, reading: “Except where it is otherwise provided, the party for whom the final judgment is given in any action, or in a motion for judgment for money, whether lie be plaintiff or defendant, shall recover his costs against the opposite party.” If the question were of first impression, I confess that I would incline to think that such a proceeding would call for costs under that section. • I would regard it as a remedial statute to be liberally construed, so as to change the common law rule that no costs wore recoverable. The general rule is that unless a statute allows costs, nono can be given. I would consider any proceeding in court litigated between hostile parties an action under that section. Why is a statutory action not as much entitled to costs as a statutory motion or a common law action? Still, touching this particular proceeding, there are some reasons to the contrary. If parties are to be subject to heavy costs, as is said to be the case in the present instance, they would be slow to move for' the vindication of the public interest against a vicious public officer. This would seem to be against public policy. On the other hand, if an innocent officer is accused wrongfully, it is hard that he should not be able to mulct the parties who move the prosecution in costs for his indemnity. T have said that my inclination would bo that said statute would allow costs in any proceeding litigated in a court between parties; but the case of West v. Ferguson, 16 Grat. 270, which is likely binding authority upon this Court, held that as a statute relating to contested elections did not provide for costs, none could be given, because the common law allowed no costs, and because the
It is argued that a disclaimer carries costs, and we are cited to Kitt v. Wilson, 130 Ind. 492, and Etler v. Dignowetty, 77 Tex. 212. So the disclaimer does carry costs provided costs are recoverable in the proceeding. The Texas cáse says that the withdrawing of a plea of not guilty by disclaimer is an implied confession of judgment. There is no such thing here. We are cited to Delaney v. Goddin, 12 Grat. 266, to sustain a mandamusj but that was purely a ministerial act, recording a surveyor’s report of lands sold for taxes. Fisher v. Charleston, 17 W. Va. 595, is referred to; but that was a proceeding to compel the ministerial act of levying taxes. Arkle v. Board, 41 W. Va. 471, is cited to prove that this impeachment proceed
Writ Denied.