44 W. Va. 372 | W. Va. | 1898
Beniah Depue and W. B, Matthews were opposing candi
The first error assigned and relied on by the plaintiff in error is that the circuit court erred in sustaining- the demurrer to the said petition and information, and in quashing the writ, and dismissing the petition, information, and proceeding, and in rendering judgment for cost against petitioner. A proper solution of the questions raised by this assignment of error involves the construction of the statute under which this proceeding was instituted. Section 9 of chapter 109 of the Code provides that, “many case in which a writ of quo warranto would lie, the attorney gen-enral or prosecuting attorney of any county, at his own instance, or at the relation of any person interested, may, in the name of the State of West Virginia, apply to any such court as is mentioned in the seventh section of said chapter, for leave to file an information in the nature of a writ of quo warranto for any of the causes, and against any of the corporations, officers, or persons mentioned in the sixth section of said chapter, and he shall, at the time of his application, present to the court the information he proposes to file. If, in the opinion of such court, the matters stated in such information are sufficient in law to authorize the same to be filed, an order shall be made filing the same, and awarding a summons against the defendant named therein to answer such information. But if leave to file such information be asked on the relatioii of any person, or by any person at his own instance, the summons thereon shall not be issued by the clerk until such relator or person shall give the bond and security required by the next preceeding section.” Section 7 of the same chapter provides that, “whenever the attorney general or prosecuting attorney of any county is satisfied that a cause exists therefor, he may, at his own instance, or at the relation of any person interested, apply by petition to the circuit court of the county wherein the seat of government is, or to the county wherein the cause for issuing of such writ arose, to have such writ issued, and shall state therein the reason therefor. Whenever such writ is issued at the relation of any person the petition shall be in the circuit court of the county wherein the seat of government is, or of the county wherein the cause or any part thereof for
Now, it is perceived by the language of these sections that proceeding rhust be had at the instance of the attorney general or the prosecuting attorney, or at the relation of any'person interested, where such prosecuting attorney is satisfied that a cause exists therefor. These two things must concur: The prosecuting attorney must be satisfied that a cause exists therefor, and then the writ may be issued at his own instance, and, if issued at the relation of any private person, such person must be interested in order to authorize the issuance of the writ. Was such interest shown by the relator in this case by the allegations of his petition as would entitle him to -have the writ issued? From the petition, which must be regarded as true upon demurrer, it appears that said Depue was a candidate for the office of sheriff of Roane county at the general election held on the 3d day of November, 1896; that he was a qualified voter and taxpayer of said county, and was duly qualified to hold said office, and was over thirty-five years of age, and had been a resident of said county all of his life. It, however, appears from the face of said petition, that at said election the defendant in -error, Matthews, was the opposing- candidate for the office of sheriff, and received a majority of all the votes cast for the said office of sheriff, and was declared elected for the term aforesaid, and gave bond and took the oaths required by law. From this statement of facts, then, it is apparent that the relator, Beniah Depue, had no other or different interest in said office of sheriff than any other citizen or taxpayers of said county; and it further appears that said W. B. Mathews did sell and let to farm, unto certain parties therein named, the whole of said office of sheriff for the term aforesaid; yet, if such be the case, and the said Matthews became thereby disabled and disqualified from holding said office, the question presents itself whether the relator, Depue, as a citizen,'taxpayer, and resident of the county of Roane, had such interest as would entitle him to the writ of quo xvarranto, upon the question of the character and amountof interest required to entitle a relator to such writ.
A case very similar to the one under consideration was decided by the supreme court of Pennsylvania. I refer to the case of Com. v. Cluley, 56 Pa. St. 270, in which it was held (third point of syllabus): “The enactment that writs of quo warranto may be issued on the suggestion of any person desiring to prosecute the same means any person having'an interest to be affected.” Also, in the next point of the syllabus in that case, it was held that, “where at an election for sheriff a majority of the votes that are cast for a disqualified person, the next in vote is not to be returned as elected.” Also, in the fifth point of syllabus, it was held that: “The suggestion alleged that at an election for sheriff the person returned was disqualified.” The candidate next in vote had no such interest as entitled him to be heard in a quo warranto. The question was exclusively a public one, and could be raised only by the attorney general. The court, in its opinion (page 272), says: “Out act, which substantially incorporates the provisions of the British statute, has received the same construction. This court has construed the words ‘any person or persons desiring to prosecute the same’ to mean any person who has an interest to be affected. They do not give a private relator the writ in a case of public right involving no individual grievance. In this case the party against whom the writ was asked for was attempting to act as
The question as to the kind and character of interests necessary to entitle a party to maintain the writ of quo warranto has been passed upon in several states. So, in the case of Miller v. Town of Palermo, 12 Kan. 14, it was held that “pidvate individuals who have no other interest than as citizens and taxpayers of a municipal corporation cannot maintain an action of quo warranto against such
Now, as to the question whether the prosecuting attorney could exercise any discretion as to the institution of this proceeding in his name as public prosecutor, it is well known that the attorney general represents the interest of the State in similar questions raised in regard to state officers, and that the prosecuting attorney represents the interests of the State in matters pertaining to county officers. As we have seen, section 9 of chapter 109 of the Code provides that, “in any case in which a writ of quo ■warranto would lie, the attorney g-eneral or prosecuting- attorney of any county at his own instance, or at the relation of person interested may apply to such court as is mentioned in the seventh section of said chapter for leave to file an information,” etc.; and in the state of New York, where the language of the statute is similar, using the word “may,” in the case of People v. Attorney General, 22 Barb. 114, it was held that, “under the provisions of the Revised Statutes and the Code, it is for the attorney general, and not the supreme court, to determine whether, in any particular case, it is proper that an action to try the right to an office shall be brought or not. Consequently, a mandamus would not lie to compel the attorney general to prosecute an action of that nature.” The prosecuting attorney of a county, representing the state, would, in reference to a proceeding- of this character against a county officer, occupy the same relation as the attorney general would if a state officer was concerned; and, following the ruling in the New York case last mentioned, we hold that the prosecuting attorney could exercise discretion as to whether the writ should be prosecuted, and this view is supported by the seventh section of chapter 109 of the Code, which provides that ‘‘whenever the attorney general
Several decisions of the supreme court of North Carolina and of South Carolina are relied on by counsel for the plaintiff in error to sustain the position that a citizen and taxpayer.is entitled to proceed as a relator in qiio warranto; but a reference to the Codes of those states shows that the writ of quo warranto and proceedings in the nature of quo warranto by information are abolished in both of those states, and that an action may be brought'by the attorney genei'al in the name of the state upon his own information, or upon the complaint of any private party against the parties offending-, in the following cases: “(1) When any per
Affirmed..