43 W. Va. 242 | W. Va. | 1897
O. 0. Shank and others, under section 48, chapter 47, Code 1891, presented to the council of the town of Ravens-wood a petition asking a change in the corporate limits of the town, as therein specified, and that a vote be had thereon, which petition was disallowed and rejected by the council. Thereupon Shank and others obtained from the Circuit. Court, of Jackson a -mandamus nisi to compel the council to entertain said petition, and order a vote of the people upon the change of town limits as therein proposed; and the case ended in a final judgment awarding a peremptory mandamus compelling the council so to do, and the town sued out a xvrit of error.
A plea was tendered to the writ, of mandamus nisi, setting up in bar of it, as res judicata, a judgment quashing a former -mandamus nisi between the parties; but we cannot consider this plea, or the matter it sets up as res judi-cata, because it is not made part, of the record by bill of exception or order of the court,, nor is there any exception to the court’s action on it. Hughes v. Frum, 41 W. Va.
The petition of Shanks was presented to the council first, and at the same meeting a petition of Leonard and others, asking a vote on a change of boundary, covering all the territory included in the Bhanks petition, and some additional territory. It was therefore a different proposition. The Shanks petition was disallowed, and afterwards, ^at the same meeting, the Leonard petition entertained, and a vote ordered upon it. It is argued that the council had the right, to select which petition it would entertain. The Shanks petition was first in time. What -was the duty of council? To order a vote upon it. The statute (section 48, chapter 47, Code) is not directory, but mandatory. When a petition such as it prescribes comes before a council, it has the right, as a preliminary or jurisdictional question, to see that five persons who are freeholders have signed it, and that they are freeholders, and that it sets forth with sufficient definiteness the proposed change; but if it is such a petition as the law demands, then, as the law says “the council .shall thereupon order a vote,” it must do so. This is the mandatory language, — to be held mandatory because there is no question but. that the intention is to give the people, on the motion of five freeholders, opportunity to pass upon the change proposed. Great public interest, convenience, and welfare are generally involved in such proceeding, and surely it. was never intended to put it in the power of council to lay a veto upon the public, right nnd power involving self-government. All that is required, or intended to be required, to call
In the case of a court of inferior jurisdiction, and certainly in the case of a town council acting under this act, all facts necessary to give jurisdiction or power to act must appear on the face of the proceeding; and the record can not preserve mere silence on it, as may the record of a court of general jurisdiction. Mayer v. Adams, 27 W. Va. 244. As the record states this fact, is it conclusive against this attack, — a collateral attack? Of course, it could he denied on the Leonard petition proceeding, but this is a collateral attack made under this mandamus. It seems settled that, where the facts essential to give juris-» diction.to an inferior or special tribunal of limited authority are shown by its record, the same presumption prevails in favor of its jurisdiction as prevails in favor of the jurisdiction of superior courts of general jurisdiction, and the statement of jurisdictional facts can not be denied upon a collateral attack, nor will its plain errors affect it.
Affirmed.
