State ex rel. Lorentz v. Pierson, 86 W. Va. 533

State ex rel. Lorentz v. Pierson

86 W. Va. 533 | W. Va. | 1920

Ritz, Judge:

The Town of Henry is a municipal corporation organized under the provisions of Chapter 47 of the Code. It is required by law'’ to hold an election on the first Thursday of J anuary of each year for the purpose of selecting a Mayor, recorder and five councilmen, who together constitute, the common council. On the first Thursday in J anuary of the present year no election was held in said town, but an election was attempted to be held on the second Thursday in J anuary. The Council deemed this election void because not held at the, time appointed by law and refused to canvass the returns thereof. The relator, also deeming such election abortive,, applied for this writ of mandamus to compel the council to at once provide for holding the election which should have been held on the first Thursday in January.

It is insisted by the respondents that the peremptory writ should not issue because the alternative writ was executed as to two members of the council by delivering a copy thereof to their respective wives, they being absent from the county, but as to the Mayor, recorder and the, remaining members of the council, it was executed by personal service upon them. It is quite true that where a duty is sought to be compelled by mandamus, service of the alternative writ should be made upon the officers or officer whose duty it is to do the thing commanded. 26 CyC. 475. There would seem to be no reason, however, why *535substituted service should not be hejd sufficient unless it is sought to enforce the command of the writ by a rule for contempt, and particularly is this true where personal service has bee,n had upon a majority of the body against which the writ runs, so that in case of a refusal to perform a rule for contempt could be issued against those members personally served in whose power it lies to perform the thing commanded. State v. Jones, 23 N. C. 129. In Cross v. Ry Co., 34 W. Va. 742-747, it was held that the alternative writ might be served upon a railroad director who was sought to be ousted from office, by order of publication where, he was a non-resident of the State. To hold that to make the writ effective against any of the respondents, it must be personally served upon all of them would put it in the power of one, member 'of a body, such as we are dealing with here, to prevent the courts from furnishing any relief to one aggrieved by a failure to perform a duty required to be performed. We are of opinion that where personal service has been had upon a majority, constituting a quorum, of the body that is required to act, the writ should not be denied because the other members we,re notified- by substituted service.

The writ should not issue, however, if the election held on the second Thursday in January is valid. Instead of a writ to compel the holding of an election a writ should be sought to compel the council to canvass the returns of that election. Sec. 17 of Chapter 47 of the Code, provides that the election of officers for such municipalities as are incorporated thereunder shall be held on the first Thursday of January of each year. No authority is given to the- council or any other municipal authority to hold it on any othe,r day. It is held with practical unanimity that where a. particular time is fixed by law for the holding of an election the body charged with executing such law may not fix a different date therefor. If such election is held on another day than that fixed by law, it will be void. 9 R. C. L. Title “Elections”, sec. 19; 15 Cye. 341. To allow those charged with the execution of the, election laws to change the time for holding elections to suit the convenience or interest of themselves or their frie,nds would result in fraud and injustice to such an extent that the title of every officer would be brought into disrepute. If the officers charged with the, duty of holding *536an election at a particular time, fail to discharge that duty, the only remedy is to appeal to the courts to compel its performance by the, writ of mandamus. State ex rel. Heironimus v. Town of Davis, 76 W. Va. 587.

The peremptory writ of mandamus prayed for will issue.

Peremptory writ awarded.