138 S.E. 312 | W. Va. | 1927
The petition of F. C. Bowyer, supported by affidavit, was filed in this court, stating that he is a citizen of good moral *696 character and a resident of the city of Spencer; that he had applied to the common council of that city for a license to operate pool tables in a suitable room in the city; that his application was refused; that the reason assigned by the council for the refusal was that the majority of the citizens of Spencer were opposed to the operation of pool rooms; but that as a matter of fact the majority of the citizens did not oppose pool rooms. The petition prayed that an alternative writ of mandamus issue, directed to "The City of Spencer, a municipal corporation, E. M. Sinnett, Mayor and F. E. Wright, Recorder". The writ was issued and directed as prayed for.
The respondents made no answer or return to the writ, but demurred to the petition and moved to quash the writ. Under the practice in West Virginia, the petition in such case is not regarded as a pleading, but the alternative writ is treated as the relator's declaration. The sufficiency of the writ may be tested either by demurrer or motion to quash. Fisher v. Cityetc.,
There is no lack of substance in the alternative writ. The recitals present a case for relief. See Hardman v. Town ofGlenville,
The motion to quash is based mainly on the fact that the writ is not directed to the council of the city of Spencer. Respondents point to the fact that the council is the body which is to do the thing required to be done. The relator relies on Fisher v. City, supra, in which it was held that a writ directed merely to the "City of Charleston" was sufficient, though the act commanded was the act of the council.
The weight of authority is that the writ should be directed "to those who are to execute it, or do the thing required." Dillon, Mun. Corp., 5th Ed., sec. 1537. 38 C. J. 848 (554). While: a city performs many of its functions through its council, yet the council is not the city. The city is a legal entity, separate from its council. Just how the city as such could make its council perform a mandate addressed to the city does not appear. What coercive measures it would take against its council is not; suggested. In recognition of all of *697
which, courts have held that where a council improperly failed to perform a duty, the writ was properly directed to the council in its official capacity, instead of to the city.Burke v. The Mayor,
That this court preferred explicit direction in such a writ is shown in Fisher v. The Mayor etc.,
Despite the fact that the writ in this case is not properly directed, we would condone that defect in deference to the holding in Fisher v. City, if the return showed that the writ had been served on the council of Spencer or the several members thereof. Dillon, supra, Sec. 1534. In that event the council would have notice of this proceeding. But the writ was not executed on the council, or service accepted by any one for it. As the situation now stands, the council has had no day in court. We are of opinion that it would be manifestly unfair to it, and violative of established law, to enlarge the command of the mandamus nisi in the preparation of the peremptory writ and thereby require the council to perform an act which it has been given no opportunity to protest. We are aware of a dictum to the contrary in the opinion of Fisher v. TheCity, (p. 621); but that dictum is inconsistent with the unyielding rule pronounced in point 6 of the syllabus in Fisher v. The Mayor etc., supra, that a peremptory writ must strictly follow the command of the alternative writ.
The alternative writ will therefore be quashed, saving the right to the relator to have it amended and reissued if he so desires.
Writ quashed. *698
