76 W. Va. 587 | W. Va. | 1915
The Town of Davis is a municipal corporation under Code 1913, ch. 47. By that statute', sec. 17, the officers of the town “shall be elected on every first Thursday of January, at such place in the town * * * and under such supervision, rules and regulations, not inconsistent with the laws regulating district elections, as the council may prescribe.” An ordinance of the town made in keeping with this statutory provision, provides “that the annual town election shall be held on the first Thursday in January, at such place, or places, as the council may designate.” Thus we see that the law fixes a time for the holding of the general town election annually, and provides virtually that the council shall provide for the holding of the same. Moreover, certain provisions of the general election laws are applicable to the holding of municipal elections. By those provisions it is the duty of the council to prepare for the holding of the town election by the appointing of election officers, the furnishing of the .election paraphernalia, and the doing of other necessary things. 'While the law itself calls the election and does not provide for a special proclamation by the mayor or council to call the same, yet the law provides in effect that the council shall cause the election to be held by making all the preparations for it which are essential to its holding. The town officers must open the polls. They must see that the electorate are given the opportunity to vote. In a sense the council must
For the annual town election which the law prescribed to be held on the first Thursday in January, 1915, the council of the Town of Davis made no preparation whatever. No election was held. The members of the council for the preceding year continued to hold over. More than this, the record of the council shows that “in view of the fact that no election was held” the members of the council declared themselves “elected to their respective positions for the ensuing year ’ ’, and issued certificates of election to themselves. After they so declared themselves elected and entitled to hold for another year, Heironimus, a citizen, voter, and taxpayer in the town, sought the writ of mandamus to compel them to cause to be held the annual election which he avers they neglected to bring about as the law enjoined them to do. The circuit court upon returns of the town and its officers to the alternative writ, denied the relief sought. To such judgment Heironimus prosecutes writ of error.
The substance of the returns to the alternative writ is that Heironimus allowed the day fixed by law to go by without demanding an election to be held, that he is not acting in good faith and for ulterior motives in now demanding an election, and that it was generally conceded by the people of the town that no election should be held, because they were satisfied with the present officers, and the holding of no election would save expense. But to us it seems clear that these considerations can not excuse the neglect of that which the law enjoined upon the officers composing the common council of the town — the causing of an election of persons to succeed them. There was no duty upon Heironimus to demand that these officers do their legal duty. It was to be
It is argued that the relator was not a candidate and' was deprived of no special or pecuniary right. But as a citizen, voter, and taxpayer in the Town of Davis, he may maintain mandamus to compel the council to perform a ministerial duty imposed on it by law in favor of the public. This he may do though he has no special or pecuniary interest in the performance of the duty. Frantz v. County Court, 69 W. Va. 734.
It is further submitted that the law fixes a day for the election and does it so mandatorily that an election can be held ' on no other day. True, the provision of the law fixing a particular day for the holding of the election is in a sense mandatory. It is intended to be obeyed. _ But, in another sense it must be considered directory. 2 Kent’s Comm. 295; State v. Smith, 22 Minn. 218; State v. County Commissioners, 25 Md. 576. May the council of the town by plain disobedience of this minor mandate as to the time, deprive the citizens of the greater mandate that they shall have an election annually? May it, by disobedience of a mere particular embraced in the whole of the grant to the citizens of -a legal right, exonerate itself from ’ disobedience of the whole? Assuredly not. That the council may be compelled by mandamus to reconvene and do that which it was enjoined by the law to do at a particular time before, is only the requirement of reason and right. Frantz v. County Court, supra. The same officers are in office. They hold over only by virtue of
The point we are considering is by no means new. In People v. Trustees of the Town of Fairbury, 51 Ill. 149, the court held: ‘ ‘ When the president and board of trustees of a town incorporated under the general law, have neglected to give the requisite notice for holding the annual election for the new board, within the year for which they were elected, as prescribed by law, and refuse afterwards to give notice and call a meeting of the qualified voters of such town, for the eletion of their successors in office, a mandamus will be awarded, compelling them to do so.”
It was ai'gued in McConihe v. McMurray, 17 Fla. 239, that mandamus would not lie to compel the holding of an election, because the day fixed by law for it had passed. The matter was dismissed in this wise: “Nor is it any objection that the precise date at which the election was to be held has passed. Such a doctrine would practically abolish the remedy by mandamus in such eases. The writ does not lie before, but only after default in the performance of a ministerial duty, and if it be a good defense to allege that the time fixed for its performance has passed, it is evident that the ground upon which you must base your application for the writ becomes a sufficient reply to the alternative writ when granted. ’ ’
Again, in State v. Young, 6 S. D., 406, we read: “If the annual election has not been called and held upon the day designated in the village charter, and the president and board of trustees neglect to call an election upon the demand of an elector and taxpayer of such village, the circuit court has power by mandamus to -compel said president and trustees to call such an election, and provide the necessary
It is plain from the record that the relator shows a clear legal right to the writ of mandamus. The jud.gment of the circuit court will be reversed, and the judgment which that court should have entered will now here be entered. It will therefore be ordered that the peremptory writ of mandamus prayed for do issue, commanding the holding of the election which should have been held for the Town of Davis on the first Thursday of January last, on as early a date to be fixed by the council as may be consistent with the provisions of law relative to preparations for the same.
Reversed, and peremptory writ issued.