47 W. Va. 413 | W. Va. | 1900
Filler was appointed superintendent of streets — commonly called “commissioner of streets” — of the town of Davis, Tucker County, by its council, and later charges were made by the mayor and sergeant that he had refused to receive and work on the streets persons sentenced to such work by the mayor for violation of ordinances, and had refused to recognize the authority of, or have any intercourse with, the mayor. These charges were made by word of mouth in the council meeting, and entered informally in the order book. The council adopted a resolution reciting that Filler had refused to take charge of such prisoners, in violation of his duty under an ordinance, and declaring the position of street commmissioner vacant, and authorizing- the mayor to employ persons to look after the street until tiie next council meeting. EFller then obtained from the circuit court a rule against the mayor, recorder, and councilmen to show cause why a writ of prohibition should not go against them to prohibit the enforcement of the order of the council declaring the street com-missionership vacant, and to prohibit one King, who had been placed in charge of the streets, from interfering with Filler as street commissioner, or performing duties assigned him, and prohibiting the council from taking any further action or making interference with the discharge, by Filler of the duties of street commissioner. Thereupon the town of Davis and its mayor, recorder, and councilmen presented a petition to a judge of this Court, and obtained a rule against the circuit court and its judge to show cause why a writ’ of prohibition should not issue to prohibit said circuit court from taking jurisdiction of or making any order in the said prohibition proceeding in said circuit court. Had the circuit court jurisdiction of the proceeding in prohibition? The answer to this question
It is pointed out that Code, chapter 47, section 16', gives-town officers a fixed term of one year, and there is authority to say that, where such is the case, generally there is-no absolute power of removal, — only for cause. Throop, Pub. Off. § 354. But this is not our case. We must read both sections of the Code and harmonize them. Oue says that the officers shall hold at the pleasure of the council; the other fixes the term.. The two together mean that the officers shall hold for that term, unless it is the pleasure of the council to order otherwise. “A statute may give a' council power to remove officers at pleasure, though the terms are for a specified time.” City of Madison v. Corbly, 32 Ind. 74.
But it is urged that Filler was removed without charges-filed in writing, or notice to him, arbitrarily, and that a town ordinance required charges in writing,, and a. report of a committee thereon. It required no notice. If the street commissioner is an officer, and not a mere employe, not entitled to such charges, this, would be only error in proceedure, not ousting the council of jurisdiction to act, and correctible by certiorari, which is a writ to correct error of procedure in an inferior tribunal or board having jurisdiction, and not by prohibition,, which is predicated on want of jurisdiction. . County Court v. Boreman, 34 W. Va. 362 (12 S. E. 490); Fleming v. Commissioners, 31 W. Va. 608 (8 S. E. 267) (Syl., point 6). But I think that ordinance only directory; proper and just to-be followéd, but not mandatory, so that failure to follow it vitiates the proceedings, and makes it either void or voidable. As the Code gives power of removal at pleasure of th.e council, I do not think this mere ordinance could affect the action of the council acting under the authority of the statute, a law superior to the ordinance. I do not think such an error could reverse its action even upon certiorari. In fact, I think action of council in such a matter not re
Writ Awarded.