Opinion
03-18-1808
Dawson v. Thruston and Others, Justices of Frederick County. [*]
Page, for the appellees.
[Syllabus Material]
This was an appeal from a judgment of the District Court of Winchester, overruling a motion made by the appellant for a peremptory mandamus to be directed to the Justices of Frederick County, commanding them to admit to record a deed of emancipation executed by him to sundry slaves.
Dawson produced to the Court of Frederick County a deed of emancipation executed by himself as trustee of Robert Carter, deceased, to certain negroes therein named and prayed the Court to admit the same to record, " and to certify on their record, that as many of the negroes (all of whom were then in presence of the Court) as appeared to their judgment to be so, were of sound mind and body; the males above the age of 21, and the females above the age of 18, and all under 45 years." This motion was objected to by the counsel for Carter's execcutor, who had been employed to prosecute a suit in his behalf against Dawson, and having then and there read to the Court the bill previously filed in the said suit, (in which a subpoena had been executed on Dawson and returned,) moved the Court as a Court of Chancery, to restrain Dawson, by injunction, from disposing of, or in any manner interfering with, such of the slaves referred to in Carter's deed of trust to him as were undisposed of at that time. The Court, being of opinion that the negroes present were some of those included in Carter's deed of trust, and that Dawson ought to be restrained from the exercise of any further power under the said deed, awarded the injunction. Dawson again renewed his motion, as before, which was refused.
In April, 1805, Dawson applied to the District Court for a mandamus to be directed to the Justices of Frederick County to compel them to admit to record the said deed of emancipation, and to certify as to the health and ages of the negroes in the form prescribed by law. The District Court awarded a conditional mandamus; upon the return of which, the Justices set forth at large the proceedings in the Court of Frederick County, in the year 1805, to the effect above stated. The return recites the deed of trust from Carter to Dawson; which bears date the 8th of November, 1797, and is intended to provide for the gradual emancipation of the slaves therein conveyed. It vests in Dawson the right to sell a larger number of negroes for a term of years to raise a sum of money for the benefit of Carter, part of which was to be retained by Dawson for the use of the infirm negroes among those intended to be emancipated. The Justices made their return to the District Court in October, 1805: whereupon Dawson moved for a peremptory mandamus, which motion being overruled, he appealed to this Court.
The Attorney-General, for the appellant, made the following points:
1. That the deeds from Carter to Dawson authorised the latter to give deeds of emancipation to the negroes in the proceedings mentioned.
2. That the County Court erred in granting the injunction.
3. That the County Court should have suffered the deed from Dawson to have been recorded; and should have granted the certificate he asked for, it being a mere ministerial act, and not conclusive as to the right of property.
4. That the District Court ought to have awarded a peremptory mandamus to enforce a compliance with the motion of Dawson.
Page, for the appellees. By the act of 1748, all persons were prohibited from emancipating their slaves, except for meritorious services to be adjudged and allowed by the Governor and Council. And by the act of 1782, slaves could only be emancipated in a particular manner. 1. It could only be done by deed or will proved and recorded. 2. Emancipation must be immediate and not in futuro. 3. It must be by the master himself, and not through the intervention of another. 4. The instrument must be recorded in the Court of the County where the master resides; but this deed was recorded in Northumberland District Court. Again: The deeds from Carter to Dawson ought not to be considered as instruments of emancipation, but merely as letters of attorney, authorising Dawson to emancipate the slaves. If so, Carter having died before Dawson made his deed of emancipation, the letters of attorney were revoked; and Dawson's power to act under them ceased.
Ed. 1769, ch. 32, sect. 26, p. 262.
Ed. 1785, p. 159, ch. 21.
1 Bac. Abr. Gwil. Ed. 320, let. (E.) Co. Litt. 52 b.
If Dawson is to be considered as a trustee, the County Court in Chancery had power to award the injunction; and this Court will not presume that they acted improperly. When a Court of Chancery has jurisdiction of a case, it cannot be transferred to a Court of common law, even though the case had originated in a Court of law. If the County Court had cognisance of the cause, before the application of Dawson for a mandamus, he ought not to be encouraged in a contempt of that Court where the question was properly depending: nor will this Court revise the case as it stood before the County Court in Chancery, without having it brought before them through the Superior Court of Chancery. But, if this Court should reverse the judgment of the District Court, will not the County Court still have power to enjoin Dawson from proceeding?
1 Call 500, Wilson v. Rucker.
See Ambler v. Wyld, 2 Wash. (VA) 36.
The case will be revised here, as it should have been before the District Court. That Court had no power to dissolve the injunction of the County Court; nor will this Court do it. Such a proceeding would produce a clashing of jurisdictions, which would be productive of great mischief.
Judge Tucker. Judge Roane. Judge Fleming. Absent Judge Lyons.
OPINION
Thursday, March 24. The Judges delivered their opinions.
JUDGE TUCKER.
Dawson, the appellant, as trustee of Robert Carter of Westmoreland, produced to the Court of Frederick County, a deed of emancipation executed by him to certain negroes therein named, and prayed the Court to admit the same to record, and to certify on their record, that as many of the negroes (all of whom were then in presence of the Court) as appeared to their judgment to be so, were of sound mind and body; the males above the age of 21, and the females above the age of 18, and all under 45 years. This motion was objected to on the part of Mr. Carter's executor; and his counsel then and there read to the Court a bill previously filed, and in which a subpoena had been executed on Dawson, and returned, and moved the Court, as a Court of Chancery, that it would, by an injunction, restrain Dawson from disposing of, or in any manner inferfering with, the slaves referred to in Robert Carter's deed of trust to him, that were undisposed of at that time. The Court being satisfied that the negroes present were some of them included in Carter's deed, and that Dawson ought to be restrained, awarded the injunction, and after that Dawson again renewed his motion, as before, which the Court refused. Dawson then applied for and obtained a conditional mandamus from the District Court, upon the return of which the Justices made a return at large to the preceding effect: upon which Dawson moved for a peremptory mandamus, which motion being overruled, he has appealed to this Court.
The County Courts in Virginia act in a variety of capacities and characters. They are Judges of all suits and controversies arising within their Counties, either in actions at common law, or in suits in Chancery; or in controversies concerning wills, letters of administration, mills, roads, & c. In causes at common law and in Chancery there must be both a complainant and a defendant before the Court can have jurisdiction, or do any act. In the cases of wills, letters of administration, mills, & c. their jurisdiction commences upon an ex parte motion, and the person meaning to controvert it makes himself a voluntary defendant; whereas, in suits at common law, and in Chancery, the defendant is in general an involuntary one. In all these cases, however, they act as a forensic Court, if there be a controversy instituted in either of the above modes. They act moreover as a board of police for the country; and, in this character, have not forensic jurisdiction; as in laying the County levy, recommending sheriffs, coroners, militia officers, and justices of the peace: in all which they act merely as ministerial persons: and though they act in all these several characters and capacities in the same day, the character in which they act is determined by the nature of the case. When a cause is begun as a suit at common law, they cannot make any order in it as a Court of Chancery, but must proceed according to the course of the common law until there is a final judgment therein. Nor can they when proceeding as a Court of Chancery take any step not warranted by the usual course of proceeding in Courts of Equity. If, for example, a suit be instituted at common law for the recovery of slaves by an action of detinue, and the defendant being unable, or unwilling to give special bail, should fail to enter his appearance, and suffer an office judgment to be confirmed against him, it would not be competent to him, at the moment that a jury was about to be sworn to execute a writ of inquiry, to produce to the Court a bill in equity against the plaintiff, and move the Court for an injunction to prevent the plaintiff from proceeding to execute his writ of inquiry, whatever equity his case might present. The plaintiff must be permitted to proceed according to the regular course of the common law; but, when he has obtained his judgment, he may be inhibited from issuing his execution until the matter shall be heard in equity; as is every day's practice. So when a deed is offered to be proved, the Court quoad hoc sits as a Court of Registry, only. It is to examine the witnesses as to the execution of the deed, or to receive the acknowledgment, if presented and offered to be acknowledged by the maker of it, as a matter of right and duty. The contents of the deed, further than to know whether it ought to be proved by one, two, or three, or more witnesses, in order to be admitted to record, are not a subject for their inquiry; much less the operation or effect of it. Nor can they when a deed is thus brought before them for probate and recording only, avail themselves of their character as a judicial Court, and refuse to admit the proof, because, by possibility, the maker of the deed may have no right as against other persons to make such a deed. This case is so nearly like that of Rex v. Justices of Derbyshire, that it seems to me to determine the question. A motion was made for a mandamus to register a certain tenement, which was certified to the Quarter Sessions as a place set apart for the meeting of protestant dissenters: the Justices shewed cause against the motion; but the Court was of opinion that in registering and recording the certificate, the Justices were merely ministerial, and that, after a meetinghouse had been duly registered; still, if the persons resorting to it did not bring themselves within the act of toleration, such registry will not protect them from the penalties of the law." So in the case before us, I consider the Justices as merely ministerial to the proof and recording the deed: still, if any of the persons therein named are not entitled to their emancipation under the deed from Robert Carter to the appellant Dawson, the acknowledgment and recording of Dawson's deed will not release them from slavery. I am, for these reasons, of opinion, that the District Court ought to have awarded a peremptory mandamus, and that the judgment be reversed, with directions accordingly.
1 W. Bl. 606.
JUDGE ROANE. Not knowing that the deed in question, in this case, is not justified by the act of 1782, respecting emancipation; and if not, believing that the recording of it will give it no additional validity, I am of opinion that it ought to have been recorded; to avail quantum valere potest. I therefore think that the County Court erred in not permitting it to be proved and recorded, and that a peremptory mandamus ought to issue.
JUDGE FLEMING. It appears to me both from the case of The King v. The Justices of Derbyshire, and from the nature and reason of the case, that the Justices of Frederick County, when they refused to admit to record the deed presented by Dawson, were acting in their ministerial character, merely: and, as such, were bound to receive the deed, and to order it to be recorded; without considering what was to be its effect or operation at a future day. I am, therefore, of opinion, that a peremptory mandamus ought to be awarded.
1 W. Bl. 606.
By the whole Court, (absent JUDGE LYONS.)
" The judgment of the District Court reversed, and a peremptory writ of mandamus awarded, to be directed to the Justices of the County Court of Frederick, commanding them to receive proof or acknowledgment of the deed of emancipation in the proceedings mentioned, and admit the same to record, and to certify on their record that as many of the persons named in the said deed as then appeared to their judgments to be so, were of sound mind and body on the 3d day of April, 1805, (when they were before the Court of the said County, and the appellant offered to acknowledge the said deed,) the males then above the age of twenty-one years and under forty-five, and the females then above the age of eighteen years and under forty-five."
MANDAMUS.
I. Definition.
II. Origin and Nature of Writ.
III. Principles Governing Issuance of Writ.
A. General Functions and Scope of Writ.
B. Must Be Pre-existing Right or Duty.
C. Right or Duty Must Be Clear.
D. Act Must Be Lawful.
E. Act Must Be Ministerial Not Discretionary or Judicial in Character.
1. Ministerial Acts.
2. Matters of Discretion.
3. Criterion.
4. Mere Preliminary Question of Discretion.
F. Contractual Duties.
G. Vain or Useless Act.
H. Acts Impossible of Performance.
I. Other Adequate Remedy.
1. Generally.
2. Appeal, Error or Certiorari.
3. Action at Law.
J. Discretion of Court.
K. Demand and Refusal.
L. Expiration of Term of Office.
M. Unconstitutionality of Statute as Defence.
IV. Inferior Courts and Judges.
A. Generally.
B. Removal of Cause.
C. Hearing and Determination of Cause.
D. Appeals.
1. Allowance and Determination.
2. Perfecting Appeal.
a. Bills of Exception.
b. Certification of Evidence.
c. Execution of Mandate of Appellate Court.
E. Costs.
F. Removal of Cause from Docket and Issuance of Execution.
G. Compelling Court to Allow a Person to Become a Party to a Suit.
H. Enforcement of Injunction.
I. Issuance of Pluries Attachment.
J. Release of Surety.
K. Appointment of Commissioners to Determine Disputed Boundary Line.
L. Administering Oath of Insolvency.
M. Nomination of Particular Justice for Sheriff.
N. Roads and Bridges.
V. Public Officers and Board.
A. Generally.
B. Auditing and Fiscal Officers and Boards.
1. Allowance of Claims by County Court.
2. Transfer and Funding of State Bonds by Auditor.
3. Signing and Delivery of County Bonds by President of County Court.
4. Delivery by Auditor of Land and Property Books to Commissioner of Revenue.
5. Payment of Salary by Auditor.
6. Payment of Interest Coupons by County Court.
7. Payment Out of Unappropriated Funds.
8. Payment of Uncertain Compensation.
9. Payment of Unauthorized Claim.
C. Secretary of State.
D. Board of School Trustees.
E. Board of Education.
F. Military Board.
G. Superintendent of Insane Asylum.
H. Flour Inspector.
I. Oyster Inspector.
J. Inspections and Copy of Records.
K. Recordation of Instruments.
L. Granting of Licenses.
M. Elections.
1. Filling Vacancy on Electoral Board.
2. Registration.
3. Holding Election.
4. Placing Names on Ballots.
5. Recount of Ballots.
6. Issuing Certificate of Election.
7. Statutory Provisions.
N. Taxation.
1. Assessment of Property.
2. Collection of Taxes.
3. Reception of Coupons for Taxes.
4. Execution of Tax Deed.
5. Accounting with Sheriff.
6. Against Municipal Corporation to Compel Levy to Pay Claim.
a. General Rule.
b. Conclusiveness of Judgment.
c. Necessity for Reduction of Claim to Judgment.
d. Demand and Refusal.
e. Allegations.
(1) Generally.
(2) Nonpayment of Claim.
(3) Authority of Respondents.
(4) Command of Writ.
f. Respondents.
(1) Proper Parties.
(2) Expiration of Term of Office.
(3) Revival--Notice.
g. Defences.
(1) Prior Levy of Adequate Tax.
(2) Statutory Limitation on Indebtedness.
h. Appeal.
7. To Compel County Levy.
VI. Admission or Restoration to Office.
A. General Rule.
B. Other Remedy.
C. Office Full De Facto.
D. Examples.
E. Delivery of Books, Records and Insignia of Office.
VII. Corporations.
A. Private Eleemosynary Corporations.
B. Quasi Public Corporations.
1. Transfer of Passengers.
2. Operation of Road.
3. Compliance with City Ordinance.
4. To Restore Street to Practicable Condition.
C. Municipal Corporations.
D. Right to Office.
VIII. Legislative Bodies and Officers.
A. Publication of Act of Legislature.
B. Striking Act from Rolls.
IX. Jurisdiction of Courts.
A. Supreme Court of Appeals.
1. Generally.
2. Original Jurisdiction.
a. Virginia.
b. West Virginia.
3. Appellate Jurisdiction.
B. Circuit Courts.
1. Local Jurisdiction.
2. Judge in Vacation.
X. Parties.
A. Relator.
B. Respondent.
1. Persons Subject to Writ.
a. Officer or Department of State.
b. Private Persons.
XI. Proceedings in Mandamus.
A. General Outline.
1. At Common Law.
2. The Present Practice.
B. Proceedings in Detail.
1. The Petition.
a. Allegations.
b. Verifications.
2. Rule to Show Cause.
a. Necessity.
3. Answer to Rule.
a. Sufflciency.
4. The Alternative Writ.
a. Necessity.
b. Form and Allegations.
c. Command.
d. Sufficiency--Motion to Quash and Demurrer.
e. Service of Writ.
f. Amendment.
5. Return to Alternative Writ.
a. By Whom Made.
b. Insufficient Return or No Return.
c. Purging Return.
6. Replication--Necessity.
7. Demurrers--Effect.
8. Peremptory Writ.
C. Competency of Evidence--How Questioned.
D. Joinder of Several Relators.
E. Revival or Continuation of Writ.
F. Appellate Practice--Necessity for Bill of Exceptions.
XII. Enforcement of Mandate.
I. DEFINITION.
" The modern writ of mandamus may be defined as a command issuing from a common-law court of competent jurisdiction, in the name of the state or sovereign, directed to some corporation, officer or inferior court, requiring the performance of a particular duty therein specified, which duty results from the official station of the party to whom the writ is directed, or from operation of law." High on Extraordinary Legal Remedies, § 1; Wise v. Bigger, 79 Va. 269.
II. ORIGIN AND NATURE OF WRIT.
In its origin a mandamus was not a judicial writ, but was simply a mandate issued directly by the king to his subject, ordering the performance of some specified act. Any such mandate was originally called a mandamus, but gradually a mandate ceased to be called a mandamus and this name was applied to a judicial writ issued by the king's bench in the name of the king. This writ was at first a prerogative writ and issued not of right but at the will of the sovereign and only in cases in which the king or the public at large was interested. But the writ has lost its prerogative character in this country generally and is regarded as a writ of right and in the nature of an ordinary suit between the parties, when the aggrieved party shows himself entitled to this kind of relief. Fisher v. City of Charleston, 17 W.Va. 595; State v. County Court, 47 W.Va. 672, 35 S.E. 959; Dew v. Judges of Sweet Springs, 3 Hen. & M. 1, 22, 3 Am. Dec. 639; Clay v. Ballard, 87 Va. 787, 13 S.E. 262.
It is an extraordinary remedy however, and issues only in cases where the usual and ordinary modes of proceeding are powerless to afford remedies to the party aggrieved, and when, without its aid, there would be a failure of justice. Wilder v. Kelley, 88 Va. 274, 13 S.E. 483; Lewis v. Whittle, 77 Va. 415; Clay v. Ballard, 87 Va. 787, 13 S.E. 262.
III. PRINCIPLES GOVERNING ISSUANCE OF WRIT.
A. GENERAL FUNCTIONS AND SCOPE OF WRIT.
The office of the writ of mandamus is to compel corporations, inferior courts and tribunals and public officers to perform some particular duty incumbent upon them by law, and which is imperative in its nature, and to the performance of which the relator has a clear legal right, without any other adequate specific legal remedy to enforce it. Page v. Clopton, 30 Gratt. 415; Thomas v. Town of Mason, 39 W.Va. 526, 20 S.E. 580; Welty v. Campbell, 37 W.Va. 797, 17 S.E. 312; Wilcox v. Hunter, 2 Va.Dec. 434; Parker v. Anderson, 2 Patton & H. 38; Milliner v. Harrison, 32 Gratt. 422; Tyler v. Taylor, 29 Gratt. 765; Ex parte Morris, 11 Gratt. 292; Eubank v. Boughton, 98 Va. 499, 36 S.E. 529; Wise v. Bigger, 79 Va. 269; Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775; Board v. Minturn, 4 W.Va. 300; Dew v. Judges of Sweet Springs, 3 Hen. & M. 1; Supervisors v. Powell, 95 Va. 635, 29 S.E. 682.
The tendency in West Virginia is to enlarge and advance the remedy of mandamus, rather than to restrict and limit it, to allow amendments to meet the justice of the case and to make it flexible to accomplish the relief to which the party shows himself entitled where there is no other adequate and complete legal remedy. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071; Com. v. Justices of Fairfax County Court, 2 Va.Cas. 9; Wolfe v. McCaull, 76 Va. 876.
B. MUST BE PRE-EXISTING RIGHT OR DUTY.
So mandamus only lies to enforce a pre-existing right or duty; if no such right or duty existed, it cannot be conferred, or imposed by mandamus. Tyler Taylor, 29 Gratt. 765; Chew v. Justices, 2 Va.Cas. 208; Amory v. Justices, 2 Va.Cas. 523; Richmond v. Epps, 98 Va. 233, 35 S.E. 723; Callahan v. Young, 90 Va. 574, 19 S.E. 163; Ohio Valley Iron Works v. Moundsville, 11 W.Va. 1; Wise v. Bigger, 79 Va. 269; Board v. Catlett, 86 Va. 158, 9 S.E. 999; Dent v. Board, 45 W.Va. 750, 32 S.E. 250; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628; Sights v. Yarnalls, 12 Gratt. 292; Mitchell v. Witt, 98 Va. 459, 36 S.E. 528; Glenn v. Christian, 96 Va. 679, 33 S.E. 1015; Taylor v. LaFollette, 49 W.Va. 478, 39 S.E. 276; Gleaves v. Terry, 93 Va. 491, 25 S.E. 552; Brander v. Justices, 5 Call 548; Norfolk, etc., R. Co. v. Clark, 92 Va. 118, 22 S.E. 867; Ratliffe v. County Court 36 W.Va. 202, 14 S.E. 1004; Supervisors v. Rule, 5 W.Va. 276; County Court of Gloucester v. County Court of Middlesex, 79 Va. 15; Gloucester Co. v. Middlesex Co., 88 Va. 843, 14 S.E. 660; McCullough v. Hunter, 90 Va. 699, 19 S.E. 776; Wilcox v. Hunter 2 Va.Dec. 434; Sherwood v. Atlantic, etc., R. Co., 94 Va. 291, 26 S.E. 943; Morgan v. Fleming, 24 W.Va. 186; Taylor v. Williams, 78 Va. 422; Welty v. Campbell, 37 W.Va. 797, 17 S.E. 312; Price v. Smith, 93 Va. 14, 24 S.E. 474; Parker v. Anderson, 2 Patton & H. 38; Bunting v. Willis, 27 Gratt. 144; Schmulbach v. Speidel, 50 W.Va. 553, 40 S.E. 424.
C. RIGHT OR DUTY MUST BE CLEAR.
The right or duty which is sought to be established must be clear; the writ is never granted in a doubtful case; to warrant the court in granting this writ such a state of facts must be presented as to show that the petitioner has a clear right to the performance of the thing demanded, and that a corresponding duty rests upon the officer to perform that particular thing. Milliner v. Harrison, 32 Gratt. 422; Tyler v. Taylor, 29 Gratt. 765; Wilder v. Kelley, 88 Va. 274, 13 S.E. 483; Wise v. Bigger, 79 Va. 269; Marcum v. Commissioners, 42 W.Va. 263, 26 S.E. 281; Page v. Clopton, 30 Gratt. 415; Supervisors v. Rule, 5 W.Va. 276; Wolfe v. McCaull, 76 Va. 876.
D. ACT MUST BE LAWFUL.
Generally. --Mandamus will not lie to compel the performance of an unlawful act. Tyler v. Taylor, 29 Gratt. 765; State v. County Court, 47 W.Va. 672, 35 S.E. 959; Ohio Valley Iron Works v. Moundsville, 11 W.Va. 1; Powell v. Dawson, 45 W.Va. 780, 32 S.E. 214; Wise v. Bigger, 79 Va. 269; Board v. Catlett, 86 Va. 158, 9 S.E. 999; Dempsey v. Board, 40 W.Va. 99, 20 S.E. 811; Woodford v. Hull, 31 W.Va. 470, 7 S.E. 450.
Act Which Has Been Enjoined.--So mandamus will not lie to compel the performance of an act, against the performance of which there is a preexisting injunction. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
E. ACTS MUST BE MINISTERIAL NOT DISCRETIONARY OR JUDICIAL IN CHARACTER.
1. Ministerial Acts.
Mandamus is the proper remedy where the act whose performance is sought to be compelled is ministerial. Wilder v. Kelley, 88 Va. 274, 13 S.E. 483; Richmond v. Epps, 98 Va. 233, 35 S.E. 723; Broaddus v. Essex City Supervisors, 99 Va. 370, 38 S.E. 177; Board v. Minturn, 4 W.Va. 300; State v. Herrald, 36 W.Va. 721, 15 S.E. 974; State v. County Court, 33 W.Va. 589, 11 S.E. 72; Dawson v. Thruston, 2 Hen. & M. 132; Satterlee v. Strider, 31 W.Va. 781, 8 S.E. 552; Thurston v. Hudgins, 93 Va. 780, 20 S.E. 966; Wise v. Bigger, 79 Va. 269; Delaney v. Goddin, 12 Gratt. 266; Robinson v. Rogers, 24 Gratt. 319; Doolittle v. County Court, 28 W.Va. 158; Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281; Summers Co. v. Monroe Co., 43 W.Va. 207. 27 S.E. 307; Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187; Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690.
When there is left to the inferior tribunal no discretion but to perform the duty in a particular way, by doing a certain specific act, then the inferior tribunal acts ministerially and may be compelled by mandamus not only to perform its duties, but to perform them by doing the certain specific act. Board v. Minturn, 4 W.Va. 300.
2. Matters of Discretion.
But where the act is of a discretionary or judicial nature mandamus will only lie to compel action generally, not to direct such action. The general rule on this subject is that if the inferior tribunal, corporate body or public officer has a discretion and exercises it, this discretion cannot be controlled by mandamus; but if the inferior tribunal, etc., refuse to act when the law requires them to act, and the party has no other adequate legal remedy, and when in justice there ought to be one, mandamus will lie to set them in motion and compel action, but without controlling such discretion. Wilder v. Kelley, 88 Va. 274, 13 S.E. 483; Page v. Clopton, 30 Gratt. 415; Richmond v. Epps, 98 Va. 233, 35 S.E. 723; Broaddus v. Essex City Supervisors, 99 Va. 370, 38 S.E. 177; Board v. Minturn, 4 W.Va. 300; State v. Buchanan, 24 W.Va. 362, 385; Eubank v. Boughton, 98 Va. 499, 36 S.E. 529; State v. Herrald, 36 W.Va. 721, 15 S.E. 974; State v. County Court, 33 W.Va. 589, 11 S.E. 72; Satterlee v. Strider, 31 W.Va. 781, 8 S.E. 552; Thurston v. Hudgins, 93 Va. 780, 20 S.E. 966; Wise v. Bigger, 79 Va. 269; Frisbie v. Justices, 2 Va.Cas. 92; Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281; Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187; Dent v. Board, 45 W.Va. 750, 32 S.E. 250; Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; Rowe v. Drisgell, 100 Va. 137, 40 S.E. 609; Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690; Poling v. Board of Education, 50 W.Va. 374, 40 S.E. 357; Goff v. Wilson, 32 W.Va. 393, 9 S.E. 26; Simons v. Military Board, 99 Va. 390, 39 S.E. 125; Wolfe v. McCaull, 76 Va. 876.
Nor where such judgment and discretion has been once exercised, will mandamus lie to compel the undoing of what has been done and the doing of a different thing. Thurston v. Hudgins, 93 Va. 780, 20 S.E. 966.
3. Criterion.
The question, however, whether certain duties are ministerial or judicial, depends upon the general nature of the duties to be performed, and if these duties be clearly ministerial in their character, the fact that the county court or other officers in the performance of such ministerial duty was necessarily compelled in declining to perform it, to decide disputed questions of law, would not render the duty judicial. Doolittle v. County Court, 28 W.Va. 158, 173.
4. Mere Preliminary Question of Discretion.
So where the matter involving judgment or discretion is a mere preliminary question of fact leading up to the main fact which is purely ministerial, mandamus will lie, notwithstanding the determination of such preliminary question calls for the exercise of judgment or discretion. Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281; Com. v. Justices of Fairfax County Court, 2 Va.Cas. 9.
Thus a writ of mandamus was granted to compel a county court to build a bridge, though it was necessary for them to exercise their discretion as to whether a necessity for such bridge had arisen and whether the surveyor or his assistants could not make or maintain the same. Com. v. Justices of Fairfax County Court, 2 Va.Cas. 9.
So in mandamus proceedings to compel the admission of a clerk, the amount of the security being fixed by law, the sufficiency or insufficiency of the security offered is a mere preliminary question of fact, a discretion in the determination of which will not bar the writ. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1, 3 Am. Dec. 639.
In Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281, the court disapproved of the laxness of the Virginia courts in allowing the writ whereever the general nature of the main act was ministerial, and refused the writ where it was sought to compel the ballot commissioners to put a different name upon the ballots as the democratic candidate, there being two persons claiming to be the regular candidate, on the ground that the commissioner had acted judicially in deciding which was the regular candidate; although the mere act of putting the name on the ballots was a ministerial act.
F. CONTRACTUAL DUTIES.
Mandamus will not lie to enforce contract rights of a private and personal nature. Miller v. State Board of Agriculture, 46 W.Va. 192, 32 S.E. 1007; Johnston v. State Board of Agriculture, 46 W.Va. 196, 32 S.E. 1039; Supervisors v. Rule, 5 W.Va. 276.
Though if a person has a right to have a public officer perform a purely ministerial act under the law, the fact that it grows out of contract would be no bar to mandamus. Miller v. State Board of Agriculture, 46 W.Va. 192, 32 S.E. 1007; Johnston v. State Board of Agriculture, 46 W.Va. 196, 32 S.E. 1039.
Mandamus does not lie to enforce mere contractual duties. Its proper employment is to enforce the performance of duties incumbent by law upon the person or body against whom the coercive power of the court is invoked; rights of a private or personal nature, and obligations resting entirely upon contract, not involving any question of trust or of official duty, cannot be enforce by mandamus. In other words, the writ of mandamus cannot be substituted for a decree for specific performance of duties other than those growing out of public relations, or such as are clearly imposed by statute, or in some respects involving a trust. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
A duty imposed upon a street railway corporation to transfer its passengers free of charge, by order of the judge of the county court in pursuance of a stipulation in the charter that the corporation might build its road upon the highways of the county upon such terms as said judge should prescribe, is not a duty arising out of contract any more than if it were a part of the charter itself but a duty enforced by law, hence mandamus is the proper remedy to enforce it. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
G. VAIN OR USELESS ACT.
A writ of mandamus will not be granted to compel the performance of a vain or useless act. Satterlee v. Strider, 31 W.Va. 781, 8 S.E. 552; Mitchell v. Witt, 98 Va. 459, 36 S.E. 528; State v. County Court, 47 W.Va. 672, 35 S.E. 959.
" It is well settled as a fundamental principle in the law of mandamus," says an able text writer, " that courts will not grant this extraordinary remedy where to do so would be fruitless and unavailing. If it appear that the writ would be ineffectual to accomplish the object in view, either from the want of power of the respondent to perform the act required, or on the part of the court granting the writ to compel its performance, the court will refuse to interfere. 2 Spelling on Extraordinary Relief, sec. 1377." Town of Strasburg v. Winchester & S. R. Co., 94 Va. 647, 27 S.E. 493.
So where there is no money to perform the act desired. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
Thus a mandamus will not be issued to compel a railroad which had leased its road to another road which is in the hands of a receiver, to extend its road, where the road is financially unable to make such extension, and the court has no power to compel the receiver to operate such extension if made. Town of Strasburg v. Winchester, etc., R. Co., 94 Va. 647, 27 S.E. 493.
So a writ of mandamus will not lie to compel the signing of a bill of exceptions in a case where no appeal lies from the decision of the judge refusing to sign such bill, since it would be futile. Poteet v. County Comm'rs, 30 W.Va. 58, 3 S.E. 97.
So mandamus will not lie to compel the register of the land office to endorse a land-grant, where, at the time the right to such grant accrued, the necessity for such endorsement no longer existed and the grant was as valid without as with such endorsement. Parker v. Anderson, 2 Patton & H. 38.
So mandamus will not lie to compel the judge of a corporation court to hear a contest as to the election of city councilmen, since any decision he might render would be unvailing, the council being the judge of the election, qualification and returns of its members and also having the power to fill a vacancy by an election. Mitchell v. Witt, 98 Va. 459. 36 S.E. 528.
So where a person holding one office accepts an incompatible office, mandamus will not lie to compel his admission to his old office, whether the acceptance of the incompatible office vacates the old office or only renders his tenure voidable, since in either case it would be unavailing to compel his admission. Amory v. Justices, 2 Va.Cas. 523.
So where a justice has removed from the county and his office is thereby rendered void or voidable. Chew v. Justices, 2 Va.Cas. 208.
So mandamus will not lie to compel the performance of an unnecessary act. So where the corporation court has decided that an additional survey of a lot need not be made because a sufficient description of the lot can be obtained from the records, there is no necessity for a report by the city engineer, and the making of such a report will not be compelled by mandamus. Glenn v. Cutshaw, 96 Va. 677, 33 S.E. 1015.
H. ACTS IMPOSSIBLE OF PERFORMANCE.
So the writ will not be granted where compliance with the mandate of the writ is impossible. Wise v. Bigger, 79 Va. 269.
As where it is sought to compel the county court to build a court house and there is no money with which to do it. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
I. OTHER ADEQUATE REMEDY.
1. Generally.
Mandamus is not available where another specific and adequate remedy exists. State v. County Court, 33 W.Va. 589, 11 S.E. 72; King William Justices v. Munday, 2 Leigh 165, 21 Am. Dec. 604; Ex parte Goolsby, 2 Gratt. 575; Moon v. Wellford, 84 Va. 34, 4 S.E. 572; Dew v. Judges of Sweet Springs, 3 Hen. & M. 1; Supervisors v. Powell, 95 Va. 635, 29 S.E. 682; Page v. Clopton, 30 Gratt. 415; Clay v. Ballard, 87 Va. 787, 13 S.E. 262; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; Wolfe v. McCaull, 76 Va. 876.
In order that the existence of another remedy shall constitute a bar to relief by mandamus, such other remedy must not only be adequate in the general sense of the term, but it must be specific and appropriate to the circumstances of the particular case. The remedy at law which will operate as a bar to mandamus must generally be such a remedy as will enforce a right, or the performance of a duty. A remedy cannot be said to be fully adequate to meet the justice and necessities of a case, unless it reaches the end intended, and actually compels a performance of the duty in question. Such other remedy, in order to constitute a bar to mandamus, must be adequate to place the injured party, as nearly as the circumstances of the case will permit, in the position which he occupied before the injury or omission of duty complained of. The controlling question is not, " Has the party a remedy at law?" but " Is that remedy fully commensurate with the necessities and rights of the party under all the circumstances of the particular case?" Or, as was said in one case, " To supersede the remedy by mandamus the party must not only have a specific remedy, but one competent to afford relief upon the very subject-matter of his application, and one which is equally as convenient, beneficial, and effective as the proceeding by mandamus." 2 Spell. Ex. Relief, § 1375; Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
Where the other remedy is obsolete, inconvenient or incomplete the court exercises a sound discretion in granting or refusing the writ. King William Justices v. Munday, 2 Leigh 165, 21 Am. Dec. 604; Dew v. Judges of Sweet Springs, 3 Hen. & M. 1; Page v. Clopton, 30 Gratt. 415; Wolfe v. McCaull, 76 Va. 876.
But the mere fact that there is no other remedy, will not make mandamus available, if it is otherwise improper; thus mandamus will not lie to compel a judge to award costs merely because no writ lies in a mere matter of costs. Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470.
2. Appeal, Error or Certiorari.
Mandamus will never be allowed to usurp the functions of a writ of error, appeal or certiorari, it can never be employed in the absence of statute for the the correction of errors of inferior tribunals acting judicially or quasi judicially. State v. County Court, 33 W.Va. 589, 11 S.E. 72; Eubank v. Boughton, 98 Va. 499, 36 S.E. 529; Ex parte Goolsby, 2 Gratt. 575; Moon v. Wellford, 84 Va. 34, 4 S.E. 572; Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702.
Thus a writ of mandamus was refused to a petitioner whose child had been refused admission to a white school on the ground that he was a negro, where the statute gave him a right of appeal to the county superintendent of schools. Eubank v. Boughton, 98 Va. 499, 36 S.E. 529.
So the writ was refused where it was sought to compel a judge to allow a certain person to become a party to a suit. Moon v. Wellford, 84 Va. 34, 4 S.E. 572.
So where the district court refused to grant a supersedeas to the judgment of a county court, mandamus will not lie to compel the district court to grant it, but will itself grant the supersedeas. Mayo v. Clark, 2 Call 276.
So it was refused where it was sought to compel a court to remove a cause from the docket on the ground that an office judgment had been erroneously set aside after it had become final, and to award execution. Ex parte Goolsby, 2 Gratt. 575.
3. Action at Law.
A specific remedy by action at law to recover the sum due with costs is a bar to a writ of mandamus to compel the justices of the county court to make a county levy to pay the builders of a public bridge. King William Justices v. Munday, 2 Leigh 165, 21 Am. Dec. 604.
An action for damages is not such an adequate remedy as will bar a writ of mandamus to compel a street car company to transfer a passenger free of charge as required by its charter. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
So mandamus will not lie to compel a county treasurer to collect taxes from a town which claims to be exempt therefrom, there being an adequate remedy provided by action against the treasurer and his sureties for the amount of the tax. Supervisors v. Powell, 95 Va. 635, 29 S.E. 682.
J. DISCRETION OF COURT.
The writ of mandamus is no longer a prerogative writ, any more than an action of debt, but if the petition shows a right to the writ in the relator, he is entitled to it as a matter of right. State v. County Court, 47 W.Va. 672, 35 S.E. 959; Dew v. Judges of Sweet Springs, 3 Hen. & M. 1.
Mandamus, however, is so far a discretionary writ that where an assessor has refused to assess property exempt by a statute which the governor has decided to be unconstitutional under a decision of the supreme court, the court of appeals might decline to issue the writ if the decision of the governor were clearly wrong, not because the assessor could set up such a defence, but in order not to involve taxpayers in an expensive litigation. State v. Buchanan, 24 W.Va. 362, 384.
K. DEMAND AND REFUSAL.
Before mandamus will lie to compel the performance of public duty, it must be shown that the right to the performance of such duty has been denied. Gleaves v. Terry, 93 Va. 491, 25 S.E. 552; Welty v. County Court, 46 W.Va. 460, 33 S.E. 269.
Thus a mandamus was refused in Ex parte Goolsby, 2 Gratt. 575, where it was sought to compel a court to remove a cause from its docket and direct an execution to be issued, on the ground that there was an adequate remedy by application to the court to issue execution on the judgment, which was equivalent to saying such application should have been first made.
Yet where the thing required is the plain duty of the respondents no previous demand is necessary, as where the petitioner has recovered a judgment against a municipal corporation and execution has been returned " no property found," no previous demand and refusal of the municipal authorities to make a levy to pay the judgment is necessary, such being their plain duty. Hence of course it is unnecessary to allege such previous demand and refusal either in the petition or the alternative writ. Fisher v. City of Charleston, 17 W.Va. 595.
L. EXPIRATION OF TERM OF OFFICE.
Mandamus will not lie against an officer, in his official capacity, after the expiration of his term of office. The petition should be against the officer holding the office at the date of the petition. Dent v. Board, 45 W.Va. 750, 32 S.E. 250.
An unaccepted resignation will not relieve a public officer, e. g. a registrar, from the obligation to perform duties attached to his office. Coleman v. Sands, 87 Va. 689, 13 S.E. 148.
M. UNCONSTITUTIONALITY OF STATUTE AS DEFENCE.
In Danville v. Blackwell, 80 Va. 38, the court seems to have impliedly admitted that the unconstitutionality of a statute would be a defence to a mandamus to compel the performance of duties imposed by such statute, but the court held the statute constitutional in that case. See also, Cowan v. Fulton, 23 Gratt. 579; Bridges v. Shallcross, 6 W.Va. 562.
IV. INFERIOR COURTS AND JUDGES.
A. GENERALLY.
The general rule is that where the inferior court or judge is acting judicially, mandamus is not the proper remedy to control such action. Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470; State v. County Court, 33 W.Va. 589, 11 S.E. 72; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; Jones v. Justices of Stafford, 1 Leigh 584; Ex parte Goolsby, 2 Gratt. 575. But the party aggrieved must be left to his remedy by appeal, error or certiorari. Page v. Clopton, 30 Gratt. 415; State v. County Court, 33 W.Va. 589, 11 S.E. 72; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; Jones v. Justices of Stafford, 1 Leigh 584; Ex parte Goolsby, 2 Gratt. 575; Moon v. Wellford, 84 Va. 34, 4 S.E. 572.
But if the inferior court or judge refuses to take jurisdiction, mandamus is the proper remedy to compel him to do so and hear and determine the cause. Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470; Page v. Clopton, 30 Gratt. 415; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; Jones v. Justices of Stafford, 1 Leigh 584.
It often happens that duties are devolved upon courts or judges, either by operation of law or by express statute, which partake more of a ministerial, than a judicial, nature, and where the duty is so plain and imperative that no element of discretion can enter into its performance. While the courts uniformly refuse to interfere with the discretion of inferior tribunals in the performance of their duties, yet as to acts to be performed by a court or judge in a merely ministerial capacity, or as to duties which are imposed upon them by statute, and as to which there can be no dispute, and no element of discretion, mandamus, not writ of error, is the appropriate remedy. United States. etc., Co. v. Peebles, 100 Va. 585, 42 S.E. 310.
The fact that a court performs a ministerial act does not make its action any the less ministerial, it is the character of the act, not the tribunal performing it, that gives character to the act. Summers Co. v. Monroe Co., 43 W.Va. 207, 27 S.E. 307.
B. REMOVAL OF CAUSE.
From Corporation to Circuit Court.--Mandamus will lie to compel the judge of a corporation court to remove a cause pending in his court to the circuit court for that corporation, according to Acts 1883-4, p. 424, the duty imposed by such statute being absolute, and purely ministerial and there being no other adequate remedy. Town of Danville v. Blackwell, 80 Va. 38.
From State Court to Federal Court.--Mandamus from a higher state court is the proper remedy to compel a state court to remove a cause to the federal courts in pursuance of the Act of Congress, 1 Sess., ch. 26, § 12. Brown v. Crippin, 4 Hen. & M. 173.
C. HEARING AND DETERMINATION OF CAUSE.
Mandamus, not supersedeas, is the proper remedy to compel the judge of a circuit court, to hear and determine a cause, transferred to his court in pursuance of Acts 1869-70, ch. 182, § 29, which it has erroneously ordered to be stricken from the docket. Cowan v. Doddridge, 22 Gratt. 458; Cowan v. Fulton, 23 Gratt. 579; Kent, Paine & Co. v. Dickinson, 25 Gratt. 817. See also, Valley Turnpike Co. v. Moore, 100 Va. 702, 42 S.E. 675.
So mandamus will lie to compel the judge of a county court to hear and determine a contested election case under § 160 of the Code, where the requirements of that section have been complied with, but the judge has wrongfully dismissed the complaint for misjoinder of parties. Richardson v. Farrar, 88 Va. 760, 15 S.E. 117. Lacy, J., dissenting.
So where a circuit court declines to render a decree until further legislation on the subject, a mandamus will lie from the supreme court of appeals to compel it to determine the cause. Supervisors v. Alexandria, 95 Va. 469, 28 S.E. 882.
So where a state court has properly refused to allow a cause to be removed to a federal court, but refuses to try the case on the ground that a transcript of the record had nevertheless been filed, and the cause docketed in the federal court, mandamus will lie to compel the state court to take jurisdiction and proceed to try the case. White v. Holt, 20 W.Va. 792.
A federal court cannot enjoin the mandamus proceedings in the supreme court of the state in such a case. White v. Holt, 20 W.Va. 792.
In Webb v. Barbour, 4 Hen. & M. 462, the superior court of chancery awarded a rule against the county court to show cause why a mandamus should not issue commanding them to hear and decide a case, but the court declined to decide whether it would award the writ.
The statute of 1825-6, ch. 15, was intended to prevent unreasonable and causeless delays in suits in chancery; and, with that view, the 14th section authorizes the court of appeals to award a mandamus to the court of chancery, to compel them to hear causes at the first term at which they are prepared for hearing, when no special cause appears for the refusal of the court to hear them; but the statute does not authorize a mandamus to compel a hearing of a cause, which the court of chancery, in its discretion, for reasons satisfactory to it, thinks proper to continue. Ex parte Richardson, 3 Leigh 343.
But mandamus will not lie to compel a judge to hear and determine a cause over which he has no jurisdiction.
Thus the writ was refused where it was sought to compel a judge of a corporation court to decide a contest as to the election of a city councilman, the council being the sole judge of the election, qualification and returns of its own members, and having authority to order an election to fill a vacancy. Mitchell v. Witt, 98 Va. 459, 36 S.E. 528.
D. APPEALS.
1. Allowance and Determination. --Mandamus is the proper remedy to compel the circuit court to take jurisdiction of an appeal from an assessment made by the board of public works as provided by statute, that court erroneously refusing to exercise jurisdiction on the ground that the statute conferring the right of appeal was unconstitutional. Wheeling Bridge, etc., R. Co. v. Paull, 39 W.Va. 142, 19 S.E. 551.
Mandamus is the proper remedy to compel a mayor or justice to grant an appeal from his decision, where the party has aright to appeal. Ex parte Morris, 11 Gratt. 292; Woodford v. Hull, 31 W.Va. 470, 7 S.E. 450. Obiter where no appeal is provided. Woodford v. Hull, 31 W.Va. 470, 7 S.E. 450.
Mandamus will not lie to compel a justice to allow an appeal from his decision where the amount involved is below the jurisdictional amount. Norfolk, etc., R. Co. v. Clark, 92 Va. 118, 22 S.E. 867.
2. Perfecting Appeal.
a. Bills of Exception.
Mandamus is the proper remedy to compel a judge to sign a proper bill of exceptions, or to proceed and settle the matter of a bill objected to, and, when settled, to sign it. Page v. Clopton, 30 Gratt. 415; Poteet v. County of Cabell, 30 W.Va. 58, 3 S.E. 97; Code W. Va., ch. 39, § 48; Collins v. Christian, 92 Va. 731, 24 S.E. 472; Dryden v. Swinburne, 20 W.Va. 89, 113; Morgan v. Fleming, 24 W.Va. 186; Douglass v. Loomis, 5 W.Va. 542.
But he cannot be compelled to sign a particular bill, which does not contain the truth of the case. Page v. Clopton, 30 Gratt. 415; Cummings v. Armstrong, 34 W.Va. 1, 11 S.E. 742; State v. Cunningham, 33 W.Va. 607, 11 S.E. 76; Douglass v. Loomis, 5 W.Va. 542.
And the return of the respondent in mandamus proceedings to compel the signing of a bill of exceptions, that such bill does not truly state the facts, is conclusive. Collins v. Christian, 92 Va. 731, 24 S.E. 472; Cummings v. Armstrong, 34 W.Va. 1, 11 S.E. 742; State v. Cunningham, 33 W.Va. 607, 11 S.E. 76; Douglass v. Loomis, 5 W.Va. 542. Hence, of course, he is not liable to punishment for contempt for refusing to sign such a bill. State v. Cunningham, 33 W.Va. 607, 11 S.E. 76.
The law on this subject is well stated by Greene, J., in Poteet v. County of Cabell, 30 W.Va. 58, 3 S.E. 97: " A judge is required by the statute to sign a bill of exceptions only on condition that the truth of the case be fairly stated therein. The statement in the return, not traversed, that these bills do not contain the truth of the case, must be taken as conclusively true in this proceeding. But the duty of the judge is not ended and fully discharged when he merely refuses to sign a particular bill tendered, on the ground that the truth of the case is not fairly stated therein. He shall go further. He should proceed, with the aid of counsel, to settle the bill, and, when settled, to sign it. Originally it was supposed that the judge was only bound to sign the bill when a true one was presented to him, and, when there was any objection to it, that he was not to aid in its correction, and might therefore refuse to sign it. But the practice for a long time has been otherwise. If the bill presented is not truthful and fair, the judge should alter it and make it such, or suggest what alterations should be made, where such alteration can be made in the draft; or, when necessary, he may require it to be redrafted in accordance with such suggestions; for he is not bound to sign a bill that is not true. If a judge, therefore, refuse to sign a proper bill, or proceed to settle the matter of a bill objected to, he may, in either case, be compelled by mandamus to act. * * * * *
" If he states, in a return to a mandamus nisi, that the particular bill presented does not contain the truth of the case, and, therefore, he refused to sign it, such statement must be taken as conclusive in the proceeding by mandamus, as this court decided in Douglass v. Loomis, 5 W.Va. 542, 6th point of syllabus. I would say, however, though this case was correctly decided, there is one paragraph in the opinion of Berkshire, J., which I cannot concur in; for, if it be law, by writ of mandamus to compel a judge to sign a bill of exceptions, setting forth the truth, as he understands the facts, would be, in many cases, futile. What I object to is this language on page 546: 'And hence the rule is that the judge in the case, where the charge is that he refused to sign any bill of exceptions, is commanded in the conditional writ to sign and seal the bill of exceptions if it correctly set forth the facts.' If this were the rule it would be impossible for counsel, in many cases, to draw a bill of exceptions which would set forth every fact correctly as it was understood by the judge, or by any one else, as what were exactly the facts in every minutia would not in many complicated cases be agreed upon by any two persons. To say that the judge should be only compelled to sign the particular bill prepared by counsel, if it set forth the facts correctly, as in many cases it could not well set them forth correctly in every minute particular, would be to say that the judge, in almost every case, could not be compelled to sign a bill of exceptions setting forth the facts according to his own understanding. This was, as stated by Berkshire, J., in a portion of his opinion I have quoted, the old idea; but, as well stated by him, the practice has for a long time been otherwise. Such a practice would in most cases render useless the right of a party to take a bill of exceptions. For in most cases he could not present it so that the judge would be satisfied it stated the case correctly in every minute particular. The judge cannot refuse to sign any bill in such case, as Judge Berkshire thinks, 'but he should settle the bill, and, when settled, sign it.' Therefore, if the complaint is that a judge will not sign every bill of exceptions, the mandamus would not lie, as Judge Berkshire seems to think, and which might be justified by a practice long since abandoned, according to Judge Berkshire's opinion, that the judge should be commanded to sign the particular bill presented if it correctly set forth the facts. For such a command would in very many cases be futile. The command should be, as in the case of Page v. Clopton, 30 Gratt. 415, which commanded the judge, on tender by the relator of a bill of exceptions, if the truth of the case be fairly stated therein, to sign the same. But such command should not stop there, as Judge Berkshire seemed to think, but there should be added, as was done in this Virginia case, this provision: 'If the truth of the case be not fairly stated therein, to proceed, with the aid of counsel, to settle the same, and, when settled, to sign it.' When it is understood by the court below what is meant by settling a bill of exceptions, if the court below be not corrupt, such a mandamus would, when obeyed, present the case fairly; that is, there would then be in the record all the facts as they really occurred or were presented at the trial, as these facts were understood by the judge below, and no fact which the exceptor regarded as material would be omitted, though the court below might deem such fact immaterial or impertinent; and no fact would be omitted which the court below deemed material. By settling a bill of exceptions, when presented by counsel, I understand, is meant that the court below shall take the bill as presented, strike from it no facts or statements, however impertinent or immaterial the court may consider them, if such statements or facts are correctly stated; and, if any facts or statements are incorrectly stated, they must be altered by the court only by changing the bill of exceptions so far as to make the statements or facts correct, taking care to strike out of the bill no part of any statements or any facts further than is necessary to make it correspond accurately with the truth. And, if there be any statement in the bill, or any facts stated which are without any basis of truth, then, and then only, can they be properly stricken out entirely, and the court will, if necessary, modify such bill by adding to it any statement or fact which it regards as material, which has been omitted in such bill of exceptions. When the court has done this, it is its duty to sign such bill of exceptions, and make it a part of the record whereon the case, matter, or proceeding in the court can be reviewed, with a single exception, and that is: when a new trial is asked in a commonlaw suit, and the evidence is so conflicting on material points in the case that the appellate court would not even consider the statements of facts if they were certified, the court is not bound to sign any bill of exceptions setting out such conflicting evidence."
Mandamus will not lie to compel a judge to sign a bill of exceptions where there is no appeal from his decision. Poteet v. County of Cabell, 30 W.Va. 58, 3 S.E. 97.
Where a cause has been tried, resulting in a verdict for the defendant, and a motion to set aside the verdict has prevailed, a new trial has been awarded, and the record shows that the defendant excepted, and at a subsequent term of the court a new trial has taken place before another judge, resulting in a verdict for the plaintiff, and the defendant moves to set aside the verdict, and, his motion being unsuccessful, he excepts, and counsel agree that two bills of exception may be signed within 90 days, setting out the facts on both trials, and the court enters an order showing that said bills were signed, the judge who presided at the first trial cannot be compelled, within 90 days, or at any other time, by mandamus, to sign the bill of exceptions which pertains to said first trial. Welty v. Campbell, 37 W.Va. 797, 17 S.E. 312.
It is not necessary for the bill of exceptions to be set out in the alternative writ, in proceedings to compel a judge to sign such a bill. Poteet v. County of Cabell, 30 W.Va. 58, 3 S.E. 97.
A judge is not estopped from alleging in his return in mandamus proceedings that a bill of exceptions does not contain all the facts proved, by the fact that it contains all the facts contained in the notes of the official stenographer, where such notes are otherwise a part of the record. Cummings v. Armstrong, 34 W.Va. 1, 11 S.E. 742.
Where the writ directed the commissioners to settle and sign the bill " promptly, and with all convenient dispatch," and it was issued November 23d, and served November 26th, and respondent called the commissioners together the 29th, and they adjourned from time to time until December 23d, when respondent completed and signed the bill accompanying his answer, and on the 27th the court or board signed the bill on which the relator obtained a writ of certiorari, and in the meantime respondent had held the regular term of county court, and had been afflicted with personal indisposition and illness in his family; it was held, that considerable discretion should be allowed to inferior tribunals in the discharge of judicial functions, and that, looking to the only object of a bill of exceptions which this court can consider, --viz., to perfect the record for an appeal, --there was no such delay here as ought to subject the respondent to fine or imprisonment by this court. State v. Cunningham, 33 W.Va. 607, 11 S.E. 76.
b. Certification of Evidence.
Mandamus is a proper remedy to compel a judge to certify the evidence, when he refuses to do so. Powell v. Tarry, 77 Va. 250.
But mandamus will not lie to compel a judge to certify the evidence, where such evidence is conflicting, since there is no obligation upon him to do so. Morgan v. Fleming, 24 W.Va. 186.
c. Execution of Mandate of Appellate Court.
Mandamus is the proper remedy to compel a lower court to execute the mandate of a higher court; it is not necessary that such adjudication appear in the syllabus. Koonce v. Doolittle, 48 W.Va. 592, 37 S.E. 644.
E. COSTS.
Mandamus will not lie to compel a judge to award costs, since his action in awarding or refusing costs, in a case over which he has jurisdiction, is judicial. Roberts v. Paull, 50 W.Va. 528, 40 S.E. 470.
F. REMOVAL OF CAUSE FROM DOCKET AND ISSUANCE OF EXECUTION.
Mandamus will not lie to compel the circuit court to remove a cause from its docket and direct an execution to be issued, on the ground that the court erroneously set aside an office judgment after it had become final, since if such action was competent, the judicial discretion of the court will not be interfered with, and if the court was without authority to set it aside, still the petitioner had an adequate remedy either by appellate process or by motion to the circuit court to award him execution on the office judgment which he affirms to be final. Ex parte Goolsby, 2 Gratt. 575.
G. COMPELLING COURT TO ALLOW A PERSON TO BECOME A PARTY TO A SUIT.
So the action of the court in refusing to allow a person to become a party to a suit will not be interfered with by mandamus, there being an adequate remedy by appeal. Moon v. Wellford, 84 Va. 34, 4 S.E. 572.
H. ENFORCEMENT OF INJUNCTION.
Where upon the refusal of a circuit judge to award an injunction, application is made to a judge of the supreme court who awards it, but the judge of the circuit court refuses to enter and enforce it, mandamus will lie from the supreme court to compel him to do so. Wilder v. Kelley, 88 Va. 274, 13 S.E. 483.
I. ISSUE OF PLURIES ATTACHMENT.
Where an attachment has been issued against a garnishee and he has been discharged by habeas corpus, mandamus will not lie to compel the county court to issue a pluries attachment. Jackson v. Justices of Harrison Co., 1 Va.Cas. 314.
J. RELEASE OF SURETY.
So mandamus, not writ of error, is the proper remedy to compel a court to release a surety company on an official bond, in accordance with § 2887 and Acts 1895-6, p. 284. United States Fidelity & Guaranty Co. v. Peebles, 100 Va. 585, 42 S.E. 310.
K. APPOINTMENT OF COMMISSIONERS TO DETERMINE DISPUTED BOUNDARY LINE.
Mandamus, not writ of error, is the proper remedy to compel the circuit court to appoint commissioners to determine a disputed boundary line between counties, under Code W.Va. 1891, ch. 39, § 18, such action being purely ministerial. Summers Co. v. Monroe Co., 43 W.Va. 207, 27 S.E. 307.
L. ADMINISTERING OATH OF INSOLVENCY.
Mandamus was the proper remedy to compel the justices of a county to administer the oath of insolvency under 1 Rev. Code, ch. 134, and discharge the insolvent, the justices having no discretion in the matter. Harrison v. Emmerson, 2 Leigh 764.
M. NOMINATION OF PARTICULAR JUSTICE FOR SHERIFF.
Mandamus will not lie to the county court to compel it to nominate a particular justice for sheriff. Frisbie v. Justices, 2 Va.Cas. 92.
N. ROADS AND BRIDGES.
Roads.--Mandamus will not lie to compel a county court to open a road, such a matter lying within the judicial discretion of the court, and its judgment being conclusive until reversed by an appellate court. Jones v. Justices of Stafford, 1 Leigh 584.
Bridges.--Mandamus is the proper remedy to compel the justices of a county court to build or repair a bridge or causeway, under 2 Rev. Code 1819, ch. 249, § 9, when such bridge or causeway is necessary and the surveyor or his assistants cannot make or maintain the same. Com. v. Justices of Kanawha Co., 2 Va.Cas. 499; Com. v. Justices of Fairfax Co., 2 Va.Cas. 9.
Mandamus is the proper remedy to compel the county court to repair a public bridge in accordance with the statute, but a proper case must be shown, hence if it appears that the bridge was a mere private bridge, the writ will not be granted. Brander v. Justices, 5 Call 548.
Under the West Virginia statute the county court, in discontinuing, repairing or altering the location of a county bridge, acts judicially, hence mandamus will not lie to compel the county court to repair or rebuild such a bridge. State v. County Court, 33 W.Va. 589, 11 S.E. 72.
V. PUBLIC OFFICERS AND BOARD.
A. GENERALLY.
Where the public officer or board is acting ministerially, mandamus is the proper remedy. Tyler v. Taylor, 29 Gratt. 765.
But where the officer or board is invested with a discretion, such discretion cannot be controlled or reviewed by mandamus in the absence of statute, but only by certiorari or other appellate process, Board v. Minturn, 4 W.Va. 300; State v. McAllister, 38 W.Va. 485, 18 S.E. 770; State v. County Court, 33 W.Va. 589, 11 S.E. 72; Miller v. County Court, 34 W.Va. 285, 12 S.E. 702; Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281. Though if the officer or board refuse to exercise its discretion it may be compelled to do so by mandamus, without controlling the manner of its exercise. Miller v. County Court, 34 W.Va. 285, 12 S.E. 702.
B. AUDITING AND FISCAL OFFICERS AND BOARDS.
1. Allowance of Claims by County Court.
Mandamus will not lie to compel a county court to allow certain claims in a sheriff's report, since in such a matter it is vested with discretion and this discretion cannot be controlled by mandamus. Miller v. County Court, 34 W.Va. 285, 12 S.E. 702.
2. Transfer and Funding of State Bonds by Auditor.
Mandamus is a proper remedy to compel the state auditor to transfer and fund state bonds in accordance with an act of the legislature. Robinson v. Rogers, 24 Gratt. 319.
3. Signing and Delivery of County Bonds by President of County Court.
So a writ of mandamus will not be granted to compel the president of a county court to countersign and deliver county bonds, where such bonds are to be issued subject to his approval, a discretion being thereby conferred upon him, which cannot be controlled by mandamus. Satterlee v. Strider, 31 W.Va. 781, 8 S.E. 552.
4. Delivery by Auditor of Land and Property Books to Commissioner of Revenue.
Mandamus will lie to compel the auditor of public accounts to deliver the necessary blank land and property books to a commissioner of the revenue. Peters v. Auditor, 33 Gratt. 368.
5. Payment of Salary by Auditor.
Mandamus is the proper remedy to compel the auditor to pay the salary of the attorney general, when he unlawfully withholds it. Blair v. Marye, 80 Va. 485.
Mandamus is the proper remedy to compel the auditor to pay a judge his salary as fixed by law, there being no other adequate remedy. Neal v. Allen, 76 Va. 437.
6. Payment of Interest Coupons by County Court.
Mandamus is the proper remedy to compel a county court to pay interest coupons on county bonds. State v. County Court, 37 W.Va. 808, 17 S.E. 379.
7. Payment Out of Unappropriated Funds.
Mandamus will not lie against the treasurer of a city to compel him to pay a judgment out of unappropriated funds in his hands, since it is not his duty to pay out such funds until they have been appropriated. Fisher v. City of Charleston, 17 W.Va. 595.
So mandamus will not lie to compel the state treasurer to pay out money without the authority of a warrant of the auditor. Taylor v. Williams, 78 Va. 422.
Hence an alternative mandamus requiring the treasurer of a city to do so, is erroneous, and should be quashed, since it is not his duty to pay over such moneys until they have been specifically applied to the payment of such judgment. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
But, while an alternative writ of mandamus cannot properly issue against the treasurer of a municipal corporation commanding him to pay over the unappropriated moneys in his hands not exceeding the plaintiff's demand, but only against the mayor, recorder and councilmen requiring them to make the requisite levy or show cause against it, such a prayer in the petition is no ground for objections, the petition and rule being merely preliminary proceedings and not to be tested by the ordinary rules of pleading. Fisher v. City of Charleston, 17 W.Va. 595.
8. Payment of Uncertain Compensation.
Mandamus will not lie against a municipality to compel the city auditor to issue a warrant to the sergeant of the city for money claimed by him as jailor for the support of prisoners for violation of city ordinances, where there is no statute prescribing or fixing the compensation in such case. Richmond v. Epps, 98 Va. 233, 35 S.E. 723.
9. Payment of Unauthorized Claim.
So mandamus will not lie to compel the auditor of a city to draw a warrant in favor of the sergeant of the city as jailor for fuel furnished the city jail, though such account has been allowed by the corporation court, there being no authority of law for any such allowance. Price v. Smith, 93 Va. 14, 24 S.E. 474.
C. SECRETARY OF STATE.
So a writ of mandamus was refused where it was sought to compel the secretary of state to issue a certificate of incorporation to a religious denomination. Powell v. Dawson, 45 W.Va. 780, 32 S.E. 214.
D. BOARD OF SCHOOL TRUSTEES.
So the discretion of the board of school trustees in deciding whether a child is a white person or a negro with reference to his admission to a white school, will not be interfered with by mandamus. Eubank v. Boughton, 98 Va. 499, 36 S.E. 529.
E. BOARD OF EDUCATION.
Mandamus will not lie to compel the board of education of a school district to approve a contract made by the trustees of a subdistrict with a teacher. Wintz v. Board, 28 W.Va. 227.
Mandamus is the proper remedy to compel a board of education to exercise its discretion in allowing or disallowing a claim, but it will not lie to compel the payment of such a claim until it has been reduced to judgment or put in the form of an order. If the board disallows the claim assumpsit is the proper remedy to test the validity of the claim. Poling v. Board of Education, 50 W.Va. 374, 40 S.E. 357.
But if the board allows the claim and issues an order on the sheriff, which he refuses to pay, then the remedy is by mandamus against the board, if the sheriff has no funds, or has funds, but refuses to pay and he and his sureties are insolvent without remissness on the part of the plaintiff. If the sheriff has funds applicable, but refuses to pay the order, then the remedy is by motion against the sheriff and his sureties, if solvent. If in such case the sheriff and his sureties become insolvent after the claimant has had opportunity to recover by motion but has neglected it, of course he is without remedy. Canby v. Board of Education, 19 W.Va. 93; Poling v. Board of Education, 50 W.Va. 374, 40 S.E. 357.
Mandamus will not lie to compel the board of education to levy a tax to pay orders issued by it on the sheriff, where such orders were issued when there were no funds in the hands of the sheriff, and hence were in violation of the Code, ch. 45, § 45. Dempsey v. Board, 40 W.Va. 99, 20 S.E. 811.
F. MILITARY BOARD.
Mandamus will not lie to compel the " military board" to approve a claim for services rendered on a court martial and direct the auditor to issue his warrant therefor, since the board is invested with discretion in such matter. Simons v. Military Board, 99 Va. 390, 39 S.E. 125.
G. SUPERINTENDENT OF INSANE ASYLUM.
Mandamus is the proper remedy to compel the superintendent of an insane asylum to give a certificate of discharge to a person who has been confined in a lunatic asylum, but who has recovered while on a furlough, without compelling her to return to the asylum for examination. Habeas corpus is not proper since there is no actual custody of the person. In such a case the circuit court of the residence of the lunatic has jurisdiction. Statham v. Blackford, 89 Va. 771, 17 S.E. 233.
H. FLOUR INSPECTOR.
Mandamus is the proper remedy to compel the public inspector of flour to inspect flour by boring through the head with an auger of a certain diameter as required by statute. Delaplane v. Crenshaw, 15 Gratt. 457.
I. OYSTER INSPECTOR.
So an oyster inspector, who has assigned territory as a reservation for planting oysters cannot be compelled by mandamus to give notice to the assignee to remove the stakes marking such reservation, or have them removed at the expense of such assignee, since the action of the oyster inspector in thus assigning a location for oyster planting, under the provisions of the statute, involves the exercise of his discretion as to whether such location contains any natural oyster bed or conflicted with the superior rights of other riparian proprietors. Thurston v. Hudgins, 93 Va. 780, 20 S.E. 966; Rowe v. Drisgell, 100 Va. 137, 40 S.E. 609.
J. INSPECTIONS AND COPY OF RECORDS.
While those facts of the record of the electoral board, as to which secrecy is not enjoined by law, are public records and any citizen and voter has a right to inspect and make copies therefrom, which right may be enforced by mandamus, the portions of such records as to which secrecy is enjoined by law are not public and no such right of inspection, etc., exists, hence mandamus will not lie to compel the inspection or copying of the whole record indiscriminately. Gleaves v. Terry, 93 Va. 491, 25 S.E. 552.
Mandamus will lie to compel the registrar of elections to allow a registered voter to make copies of the registration books under § 84 of the Code, providing that such books " shall at all times be open to public inspection." Clay v. Ballard, 87 Va. 787, 13 S.E. 262. Lacy, J., dissenting.
K. RECORDATION OF INSTRUMENTS.
Recordation of Deeds. --The county court, under the old law, in admitting a deed to record, acted merely as a court of registry, its function was merely to examine the witnesses as to the execution of the deed or to receive the acknowledgment by the maker as a matter of right and duty; the contents of the deed, further than to know whether it ought to be proved by one, two or three witnesses, in order to be admitted to record, are not a subject for their inquiry, much less the operation or effect of it, hence their duties as to proof and recordation being merely ministerial, their performance may be compelled by mandamus. Dawson v. Thruston, 2 Hen. & M. 132.
Mandamus is the proper remedy to compel the county court, acting as a court of probate, to admit to record a deed of emancipation, where the evidence offered is admissible and sufficient, such an act being purely ministerial. Manns v. Givens, 7 Leigh 689.
Surveyor's Report.--The action of the county court in recording the surveyor's report of land sold for nonpayment of taxes, under § 15, ch. 37, Code 1849, is purely ministerial, hence mandamus is the proper remedy to enforce such duty, not writ of error or supersedeas. Delaney v. Goddin, 12 Gratt. 266; Randolph Justices v. Stalnaker, 13 Gratt. 523.
Memorandum of Conditional Sale.--So in Callahan v. Young, 90 Va. 574, 19 S.E. 163, it was held that mandamus would not lie to the clerk of a court to compel him to record a memorandum of a conditional sale under Acts 1889-90, p. 108, where the contract had not been acknowledged by either party, or proved by witnesses as required by the former statute, the court holding that the statute authorizing the recordation of a memorandum instead of the contract itself, did not do away with the necessity for acknowledgment or proof of the contract by witnesses before such memorandum could be recorded.
L. GRANTING OF LICENSES. --Mandamus will not lie to compel the clerk of a municipality to issue a license to keep an ordinary before the 1st of May of any year, that being the date fixed by law for their issuance, even in pursuance of an order for its issuance passed prior to that date, since such an order is repealable at any time prior to that date; nor will the pendency of an application for a mandamus affect the right of the council to repeal such an order prior to the 1st of May. Sights v. Yarnalls, 12 Gratt. 292.
M. ELECTIONS.
1. Filling Vacancy on Electoral Board. --Mandamus is the proper remedy to compel the members of an electoral board to fill a vacancy on such board, and to appoint a secretary and judges of election. Cromwell v. Com., 95 Va. 254, 28 S.E. 1023.
2. Registration. --Mandamus is the proper remedy to compel a registrar to transmit to the judge of the county court a written statement of his reasons for refusing to register the petitioner, in accordance with § 83 of the Va. Code. Coleman v. Sands, 87 Va. 689, 13 S.E. 148.
3. Holding Election. --Mandamus will lie to compel the county court to submit to the voters of the county the question whether the county seat should be removed. Doolittle v. County Court, 28 W.Va. 158.
4. Placing Names on Ballots. --In the absence of statute mandamus will not lie to compel the ballot commissioner to change the name of the democratic candidate on the ballots, where there are two persons claiming to be the regular candidate, since the decision as to who was the regular candidate was a quasi judicial function, although if there had been only one claimant, the act of placing his name on the ballots would have been purely ministerial. The court held that the question involving judgment was not a mere preliminary question, but was the very question at issue. Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281.
5. Recount of Ballots. --Mandamus is the proper remedy to compel a recount of ballots by the county commissioners sitting on a board of canvassers, such action being purely ministerial. Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187; Dent v. Board, 45 W.Va. 750, 32 S.E. 250.
Even though one recount has been completed, and the board has declared the result and issued a certificate of election and finally adjourned, mandamus will lie to compel the board to reconvene and correct any error committed by them in the discharge of their duties. Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690.
But while mandamus will lie to compel a recount of ballots, yet where there has been a recount, but one of the commissioners of the county court, acting as a board of canvassers is dissatisfied with the recount, he has a right to demand a new count, and mandamus will not lie to compel him to sign the certificate of election, since he exercises a discretion in deciding as to the sufficiency and accuracy of the recount, and while under ch. 25, Acts 1893, mandamus is available to the same extent as certiorari in reviewing the actions of officers under the election laws, even where such officers exercise a discretion, yet the statute has no application where the writ is sought, or in this case, not to review the exercise of discretion and determine whether it was properly exercised, but to compel its exercise in a certain manner, i. e., to declare a certain person elected. Dent v. Board, 45 W.Va. 750, 32 S.E. 250, English, J., dissenting.
6. Issuing Certificate of Election. --Mandamus is the proper remedy to compel the clerk of a county court to issue a certificate of election, when the result of an election has been ascertained from the returns, and has been signed by the commissioners, and attested by the clerk and been annexed to the abstract of the votes cast, since the duties of the board are then completed. It makes no difference if they afterwards reconvene and reconsider their actions, throw out a precinct and declare another candidate elected, since they have no authority to do so. McKinney v. Peers, 91 Va. 684, 22 S.E. 506.
Mandamus is the proper remedy to compel the board of supervisors of a county to issue certificates of election to the candidates entitled thereto. Burke v. Supervisors, 4 W.Va. 371.
7. Statutory Provisions. --Under § 89, ch. 3, Code 1891, and the Amending Acts 1893, ch. 25, providing that " any officer upon whom any duty is devolved by this chapter may be compelled to perform the same by mandamus," the remedy by mandamus is given the appellate function of certiorari, so that it makes no difference whether the action sought to be reviewed is ministerial or judicial, it is reviewable by mandamus. Marcum v. Commissioners, 42 W.Va. 263, 26 S.E. 281; Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187.
So whether the action of the board of canvassers in ascertaining and declaring the result of an election, from the returns upon a recount, is ministerial or judicial under this section, mandamus is a proper remedy to review such action.
In such case it is immaterial what office is the subject of contest, and the writ lies from the circuit court or the judge in vacation as well as from the supreme court of appeals. Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690.
But even under the statute mandamus will not lie to direct the discretion of election officers. Dent v. Board, 45 W.Va. 750, 32 S.E. 250. See supra, " Issuing Certificates of Election."
N. TAXATION.
1. Assessment of Property.
Mandamus is the proper remedy to compel assessors to enter and assess property on their books in accordance with the instructions of the auditor, and it is no defence that in the opinion of the assessors such property has been constitutionally exempted from taxation. State v. Buchanan, 24 W.Va. 362.
Mandamus is the proper remedy to compel commissioners to reassess land which has been laid off on the land books in town lots as lots and not by the acre as farm land, although, of course, the amount at which he assesses is a matter within his discretion. State v. Herrald, 36 W.Va. 721, 15 S.E. 974.
2. Collection of Taxes.
Mandamus will not lie to compel a county treasurer to collect taxes from a town which claims to be exempt therefrom, there being an adequate remedy provided by action against him and his sureties. Supervisors v. Powell, 95 Va. 635, 29 S.E. 682.
3. Reception of Coupons for Taxes.
Mandamus was the proper remedy to compel a treasurer to receive coupons, etc., from the state bonds issued under the funding bill of 1879; the act of Jan. 14, 1882, limiting the scope of mandamus in such a case, applying only to bonds issued under the act of 1871. Com. v. Smith, 76 Va. 477; Com. v. Guggenheimer, 78 Va. 71.
Nor did the act of Jan. 26, 1882, abolishing the writ of mandamus in such cases, as to coupons cut from bonds issued under the act of 1879, affect the remedy by mandamus, as to coupons cut from such bonds and tendered prior to Dec. 1, 1882, at which date the act went into effect. Com. v. Guggenheimer, 78 Va. 71.
But under the act of May 12, 1887, mandamus will not lie to compel a treasurer to receive coupons cut from state bonds issued under acts of 1871, and 1879 in payment of taxes and issue a certificate thereof, since there is no obligation resting upon him to do so, it being his duty, on the contrary, to proceed by motion for the amount of the taxes in spite of such tender and then the other party may plead the tender of the coupons in payment of the taxes and file with his plea, the coupons tendered, and then if the tender and genuineness of the coupons are established, judgment shall go for defendant. Wilcox v. Hunter, 2 Va.Dec. 434.
Sess. Acts 1881-2, p. 342, taking away the remedy by mandamus in such cases is constitutional and valid, another adequate remedy having been given. Poindexter v. Greenhow, 84 Va. 441, 4 S.E. 742.
4. Execution of Tax Deed.
Granting that the duty of a city treasurer in executing a tax deed is purely ministerial and may be compelled by mandamus, yet such a writ will be refused where it appears from the certificate of sale that the sale was made by an ex-city collector, whose authority to make such sale had expired. McCullough v. Hunter, 90 Va. 699, 19 S.E. 776.
5. Accounting with Sheriff.
Mandamus will not lie to compel the auditor to account to a sheriff for taxes paid over to the auditor by his defaulting predecessor, with special direction as to their application. Taylor v. LaFollette, 49 W.Va. 478, 39 S.E. 276.
6. Against Municipal Corporation to Compel Levy to Pay Claim.
a. General Rule.
When a judgment has been obtained against a municipal corporation, and an execution has been issued thereon, and it has been returned " no property found," the creditor has a right to enforce the payment of his judgment by a mandamus issued against the proper municipal authorities compelling them to make a sufficient levy to pay this debt. Fisher v. City of Charleston, 17 W.Va. 595; Wells v. Town of Mason, 23 W.Va. 456.
But the writ will not be granted to compel the payment of void bonds. Ohio Valley Iron Works v. Moundsville, 11 W.Va. 1.
b. Conclusiveness of Judgment.
The correctness of the judgment rendered against a municipal corporation within the jurisdiction of the court rendering it, cannot be inquired into in mandamus proceedings to compel a levy to pay such judgment, since that is the function of a writ of error. Wells v. Town of Mason, 23 W.Va. 456.
c. Necessity for Reduction of Claim to Judgment.
Where the common council of a municipal corporation has given its creditor an order on its treasurer for the payment of his claim, and then refuses to pay it or provide for its payment, mandamus is the creditor's proper remedy, and he is not required to first reduce his claim to judgment by one of the ordinary actions at law. Thomas v. Town of Mason, 39 W.Va. 526, 20 S.E. 580.
d. Demand and Refusal.
Where a judgment has been recovered against a municipal corporation and execution has been returned " no property found," no previous demand on and refusal of the municipal authorities to make the requisite levy is necessary. Fisher v. City of Charleston, 17 W.Va. 595.
e. Allegations.
(1) Generally.
A petition for a mandamus to compel the mayor, recorder, and councilmen of a city to levy a tax to satisfy a judgment against the city is sufficient, which alleges the recovery of the judgment and return of the execution thereon, " no property found," and that the plaintiff knew of no property out of which he could make his judgment, since such facts state a prima facie case, and this is all that is necessary in the petition. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
(2) Nonpayment of Claim.
It is not necessary in a petition for a mandamus to compel a municipal corporation to make a levy to pay a judgment against the city, to allege nonpayment of the debt, since the petition does not constitute part of the pleadings, so that the strict rules of pleading do not apply to it, and it is only necessary to make a prima facie case by the petition, and that is made by alleging the procurement of the judgment, and the return of an execution unsatisfied, without alleging the nonpayment of the judgment. Such an allegation however, is necessary in the alternative writ, since that is one of the pleadings, and the ordinary rules of pleading, which require such an allegation, govern. Fisher v. City of Charleston, 17 W.Va. 595; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
(3) Authority of Respondents.
It is not necessary to allege in a petition for a mandamus against the mayor, recorder, and councilmen " constituting under the laws of West Virginia the corporation of the city of Charleston" to compel them to make a levy to satisfy petitioner's judgment, that these officers have the power to make the levy asked for, since the general law, Code, ch. 47, § § 13, 14, provides that corporate powers shall be exercised by the council, and that these officers constitute the council, and it is unnecessary to allege the existence of a power conferred by general law. Fisher v. City of Charleston, 17 W.Va. 595.
(4) Command of Writ.
So an alternative mandamus requiring the mayor, recorder, and councilmen of a city not only to levy a tax to pay a judgment against the city, but also to pay it over, is erroneous, since it is not their duty to pay such tax over, but only to levy it. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
f. Respondents.
(1) Proper Parties.
Where a municipal corporation is not composed of distinct bodies, the better mode is to address the writ to the corporation by its corporate name, commanding it by its mayor, etc., not naming them, to do the required act since this saves the trouble of reviving the proceedings, where the persons comprising the corporation are changed pending the proceedings. In such case, though the alternative writ is addressed to the corporation by its corporate name, yet the peremptory writ, if finally issued, would be against its then mayor, recorder, and aldermen of the said city, whoever they might then be, commanding them to do the act required. Fisher v. City of Charleston, 17 W.Va. 595.
(2) Expiration of Term of Office.
If the parties against whom the peremptory writ was awarded, have ceased to be the officers of the municipality, the case will have to be revived against their successors and another writ awarded against them. Wells v. Town of Mason, 23 W.Va. 456.
(3) Revival--Notice.
So an order reviving mandamus proceedings in the name of the council elected since the institution of the proceedings, without notice to them, is irregular. Fisher v. City of Charleston, 17 W.Va. 595; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
g. Defences.
(1) Prior Levy of Adequate Tax.
An answer to a rule that the tax required had already been levied, and set apart to satisfy plaintiff's demand, is a sufficient answer, if true, to justify the overruling of a motion for a peremptory mandamus. Fisher v. City of Charleston, 17 W.Va. 595.
So where one levy has already been made to pay interest coupons on county bonds, mandamus will not lie to compel the county court to make a second levy to pay the same coupons, the holder of the coupons must look to the sheriff for payment. Welty v. County Court, 46 W.Va. 460, 33 S.E. 269.
But it is not a sufficient defence that the corporation has already levied a sufficient tax to pay all the indebtedness of the corporation, if such tax has not been paid within the time required by law, since the creditor is not bound to wait until the property of delinquent taxpayers has been sold. If sufficient money has not been collected within the time allowed by law, the levy was insufficient and the creditor has a right to demand an additional levy. Fisher v. City of Charleston, 17 W.Va. 595.
(2) Statutory Limitation on Indebtedness.
To defeat recovery of a claim against a municipal corporation by mandamus to compel a levy, the return must show clearly that the municipality had created indebtedness to the full extent of its authority to levy before making the contract with the plaintiff, or, if its prior indebtedness had not reached the full limit allowed by law, it must show that it had actually paid on account of such contract the amount that the plaintiff could be entitled to recover out of the levy. Roe v. Town of Philippi, 45 W.Va. 785, 32 S.E. 224.
h. Appeal.
Where a judgment is rendered awarding a peremptory writ of mandamus to the members of a city council commanding them to levy a tax to pay coupons on city bonds, the members of such council can only obtain a writ of error to such judgment in their corporate capacity, not as individuals, nor as the representatives of any ward of the city. Osborne v. Kammer, 96 Va. 228, 31 S.E. 19.
7. To Compel County Levy.
Mandamus will not lie on behalf of the builder of a public bridge to compel the justices of the county court to raise the sum due by a county levy, where there is a specific remedy given by statute, 2 Rev. Code, ch. 236, § 9, to recover such sum with costs by action of debt against such justices, on their refusal to make the levy. King William Justices v. Munday, 2 Leigh 165, 21 Am. Dec. 604.
Mandamus is the proper remedy to compel the board of supervisors of a county to levy a tax to pay coupons of the county, and it is not necessary for such coupons to be reduced to judgment. Supervisors v. Randolph, 89 Va. 614, 16 S.E. 722.
Mandamus does not lie to compel a board of supervisors to levy a tax for the payment of a claim which it has no authority to pay, even though the claim may have been allowed. In such a case there is no estoppel by the judgment, and a fortiori there is none where the claim is of a class, payment of which is prohibited by law. Board of Supervisors v. Catlett, 86 Va. 158, 9 S.E. 999.
So mandamus will not lie against the mayor, recorder, and city council, to compel the admission of persons elected councilmen, but whom the council has decided to be disqualified because they are not freeholders, the council being invested with quasi judicial powers to judge of the election and qualification of its members. § 23, ch. 47, Code W. Va.; State v. McAllister, 38 W.Va. 485, 18 S.E. 770, Brannon, J., dissenting.
VI. ADMISSION OR RESTORATION TO OFFICE.
A. GENERAL RULE.
Mandamus is the proper remedy to compel the admission as well as restoration of the party applying to any office or franchise of a public nature. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1; Lewis v. Whittle, 77 Va. 415.
B. OTHER REMEDY.
It is no bar to mandamus in such case that the applicant may have another remedy, if such remedy is obsolete like assise. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1. Or less convenient and effective as quo warranto. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1; Lewis v. Whittle, 77 Va. 415.
Chapter 145 of the Code in relation to quo warranto does not take away the right to try the title to a public office by mandamus. Sinclair v. Young, 100 Va. 284, 40 S.E. 907.
C. OFFICE FULL DE FACTO.
It is no bar to the remedy by mandamus in such case that the office is already full de facto. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1; Lewis v. Whittle, 77 Va. 415; Schmulbach v. Speidel, 50 W.Va. 553, 40 S.E. 424.
D. EXAMPLES.
So mandamus is the proper remedy to restore a clerk of the county court to his office, from which he has been ousted by the appointment of another person. Smith v. Dyer, 1 Call 562.
So mandamus is the proper remedy to compel the occupant of an office, whose term has expired, to surrender the office to his successor, and turn over to him all the property pertaining to such office. Bridges v. Shallcross, 6 W.Va. 562.
So in Fitzpatrick v. Kirby, 81 Va. 467, a mandamus was awarded to compel a judge of a county court to surrender the office to his successor.
So mandamus, not quo warranto, is the proper remedy to compel admission to office of a director of a railroad company, where such office is wrongfully withheld. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
So mandamus is the proper remedy to compel the directors of a bank to admit the petitioner to the office of president. Booker v. Young, 12 Gratt. 303.
So, in Schmulbach v. Speidel, 50 W.Va. 553, 40 S.E. 424, it was said that mandamus was the proper remedy to restore the members of the board of public works to their offices, where they have been wrongfully deprived thereof, though it is necessary to enquire into the legality of the election of their successors, but in this case the writ was denied on the ground that the respondents had been lawfully elected.
While mandamus is the proper remedy to compel the admission to the office of governor of a person who is entitled thereto, yet where the result of an election for governor has not been declared by the speaker of the house of delegates or by the joint assembly of both houses, mandamus will not lie on behalf of any of the candidates to compel the incumbent to deliver to him the office and its insignia. Goff v. Wilson, 32 W.Va. 393, 9 S.E. 26.
But mandamus will not lie to compel the board of supervisors to allow a certain person to qualify and give bond as treasurer of the county, said board having a discretion and having exercised it adversely to the petitioner. In such case, in the absence of statute, certiorari is the proper mode of review. Board v. Minturn, 4 W.Va. 300.
In State v. McAllister, 38 W.Va. 485, 18 S.E. 770, the writ was refused where it was sought to compel the admission of members elect of a city council, on the ground that the council was acting judicially in determining the election and qualification of its members and the council having decided that the petitioners were not qualified, such action could not be controlled by mandamus, certiorari being the proper mode of review.
So mandamus will not lie to compel the county court to permit a justice to resume his seat when he has accepted the incompatible office of deputy clerk, since the writ would be unavailing, the old office being either vacated or his tenure rendered voidable. Amory v. Justices, 2 Va.Cas. 523.
So where a justice has removed from the county. Chew v. Justices, 2 Va.Cas. 208. See also, Poulson v. Justices, 2 Leigh 743.
So where the applicant for the office of sheriff is disqualified by reason of holding an incompatible office under the United States government. Bunting v. Willis, 27 Gratt. 144.
E. DELIVERY OF BOOKS, RECORDS, AND INSIGNIA OF OFFICE.
Mandamus, not detinue, is the proper remedy to compel a former electoral board to deliver to their successors the books, seal and papers pertaining to such board. Sinclair v. Young, 100 Va. 284, 40 S.E. 907; Goff v. Wilson, 32 W.Va. 393, 9 S.E. 26; Bridges v. Shallcross, 6 W.Va. 562.
VII. CORPORATIONS.
A. PRIVATE ELEEMOSYNARY CORPORATIONS.
Mandamus will not lie in the case of a private eleemosynary institution where there are visitors, to restore a petitioner to the position of grammar master and professor of humanity. Bracken v. Visitors of William and Mary College, 3 Call 573.
B. QUASI PUBLIC CORPORATIONS.
1. Transfer of Passengers.
Mandamus is the proper remedy to compel a street railway company to transfer a passenger free of charge in accordance with the provisions of its charter. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
2. Operation of Road.
Where the charter of a railroad company does not require it to construct a branch road, the fact that it has constructed and operated it does not impose a duty upon it to continue to operate it, hence mandamus will not lie to compel it to do so. Sherwood v. Atlantic, etc., R. Co. 94 Va. 291, 26 S.E. 943.
3. Compliance with City Ordinance.
Mandamus will lie to compel a street railroad company to replace its rails with rails of an improved pattern, in pursuance of a city ordinance to that effect, where such ordinance is reasonable. Washington, etc., R. Co. v. Alexandria, 98 Va. 344, 36 S.E. 385.
4. To Restore Street to Practicable Condition.
Mandamus will lie to compel a railroad company occupying a street with both main track and siding, to remove the siding where such siding interferes with the use of the street by the public, and to prevent the railroad from unnecessarily blocking crossings by stopping cars upon them, and generally to restore the street to such a condition as not to hinder travel unnecessarily. Town of Mason v. Ohio River R. Co., 51 W.Va. 183, 41 S.E. 418.
C. MUNICIPAL CORPORATIONS.
See supra, " Taxation."
D. RIGHT TO OFFICE.
So mandamus is the proper remedy to compel the directors of a bank to admit petitioner to the office of president. Booker v. Young, 12 Gratt. 303.
Or to compel admission to the office of director of a railroad company, where such office is wrongfully withheld. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
VIII. LEGISLATIVE BODIES AND OFFICERS.
A. PUBLICATION OF ACT OF LEGISLATURE.
Where a bill has passed both houses of the legislature and is sent to the governor, but was returned by him, without specifying objections, to the senate, merely in response to a joint resolution, and more than five days elapsed after the bill was sent to the governor before the legislature adjourned, mandamus is the proper remedy to compel the clerk of the house of delegates and keeper of the rolls, to furnish petitioners with a copy of such act, and to have it printed with other acts of the legislature. Wolfe v. McCaull, 76 Va. 876.
B. STRIKING ACT FROM ROLLS.
A mandamus will not be granted commanding the clerk of the house of delegates to strike from the rolls an act of assembly on the ground that it was not lawfully passed, where the legislative journal shows that it was lawfully passed, the evidence of such journal being conclusive. Wise v. Bigger, 79 Va. 269.
IX. JURISDICTION OF COURTS.
A. SUPREME COURT OF APPEALS.
1. Generally.
The clauses of the constitution providing for the jurisdiction of the supreme court in mandamus cases, whether original or appellate, are not self-executing but require to be carried into effect by act of the legislature. Price v. Smith, 93 Va. 14, 24 S.E. 474.
2. Original Jurisdiction.
a. Virginia.
Original jurisdiction to issue writs of mandamus and prohibition to the circuit and corporation courts, and the hustings court and chancery court of the city of Richmond, and in all other causes in which it may be necessary to prevent a failure of justice, in which a mandamus may issue according to the principles of the common law, is conferred upon the court of appeals by statute enacted pursuant to the constitution of the state; and it is provided that " the practice and proceedings upon such writs shall be governed and regulated in in all cases by the principles and practice now prevailing in respect to writs of mandamus and prohibition, respectively." Code of 1873, ch. 156, § 4; Va. Const. art. 6, § 2; Page v. Clopton, 30 Gratt. 415; Clay v. Ballard, 87 Va. 787, 13 S.E. 262; Kent v. Dickinson, 25 Gratt. 817.
The jurisdiction of the supreme court of appeals in mandamus cases is co-extensive with the scope of the writ at common law.
The language of the Code, giving the supreme court original jurisdiction to issue writs of mandamus in all cases in which it is necessary to prevent a failure of justice, is merely a definition of the remedy as it exists at common law, and is not a restriction on the jurisdiction of the supreme court. Clay v. Ballard, 87 Va. 787, 13 S.E. 262.
The fact that a lower court is open to the petitioner does not oust the supreme court of appeals of jurisdiction. Clay v. Ballard, 87 Va. 787, 13 S.E. 262.
The granting of the writ is no more discretionary with the court of appeals than with any other court. Clay v. Ballard, 87 Va. 787, 13 S.E. 262.
Under the Va. Code § 3094, providing that " writs of prohibition and mandamus from the court of appeals to any court shall issue and be tried at the place of session of said court of appeals, at which writs of error to such court are tried," an application to the original jurisdiction of the court of appeals for a mandamus to the judge of the hustings court of the city of Staunton, to compel them to issue a writ for a special election on the question of granting or not granting liquor license in said city, must be filed at Staunton; nor will the fact that the respondent has filed an answer amount to a waiver of such requirement, where the answer was filed subject to the opinion of the court on the construction of such statute. Hotchkiss v. Grattan, 90 Va. 642, 19 S.E. 165.
Under the constitution of 1850, in the absence of statute conferring such jurisdiction, the supreme court of appeals had no original jurisdiction to award a writ of mandamus to compel a judge of the circuit court to try a cause depending in his court. Barnett v. Meredith, 10 Gratt. 650.
b. West Virginia.
By art. 5, W.Va. Const., original jurisdiction is conferred on the supreme court of appeals in cases of mandamus. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071; Morgan v. Fleming, 24 W.Va. 186; Doolittle v. County Court, 28 W.Va. 158.
But by rule of court No. 13, 23 W.Va. 805, 829, application is not to be made to that court in the first instance unless special cause be shown. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
Where petitioner is seeking to be admitted to the office of director of a railroad company, the fact that it is not likely that he can get the case finally determined within the year, in the ordinary course of business, if the proceeding is commenced in the circuit court, is a sufficient reason for applying immediately to the supreme court, the duration of such office being only one year. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
3. Appellate Jurisdiction.
The supreme court of appeals has jurisdiction to review by supersedeas, the action of the circuit court in refusing to award a writ of mandamus. Ex parte Morris, 11 Gratt. 292. See also, Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
So also, in Virginia appellate jurisdiction is conferred on the supreme court of appeals, irrespective of pecuniary amount by § 2, art. 6, of the Constitution and § § 3454-5 of the Code, such proceeding being " a matter not merely pecuniary." Price v. Smith, 93 Va. 14, 24 S.E. 474; Taylor v. Williams, 78 Va. 422.
B. CIRCUIT COURTS.
1. Local Jurisdiction.
The circuit court of the city of Richmond has jurisdiction of a writ of mandamus to compel a street railway company of that city to transfer a passenger, the alleged breach of duty occurring in that city. It is of no importance that the obligation to perform said duty appears from a record of the county court of Henrico. Section 3218 of the Code, providing that the jurisdiction of writs of mandamus shall be in the circuit court of the county wherein the record or proceeding is, to which the right relates, has no application. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
Under Code 1873, ch. 155, requiring all suits in which it is necessary to make certain public officers, as representing the commonwealth, parties, to be prosecuted in the circuit court of the city of Richmond, mandamus proceedings against the acting treasurer of the state must be brought in that court and not in the hustings court and a judgment rendered by the hustings court will be void. Taylor v. Williams, 78 Va. 422.
2. Judge in Vacation.
The petition for a writ of mandamus to compel another county to contribute to the expense of building a bridge between the counties, may be presented to the judge of the circuit court in vacation, as well as to the court in term under § 3012 of the Va. Code. Gloucester Co. v. Middlesex Co., 88 Va. 843, 14 S.E. 660.
X. PARTIES.
A. RELATOR.
A petition for mandamus may be brought in the name of a private individual, it is not necessary that it be brought in the name of an officer authorized to represent the commonwealth. Richmond Ry., etc., Co. v. Brown, 97 Va. 26, 32 S.E. 775.
Where the duty, whose performance is sought to be compelled, is a public duty, the relator need not show any special interest in the result; his interest as a citizen is sufficient. Clay v. Ballard, 87 Va. 787, 13 S.E. 262.
In West Virginia a writ of mandamus may be either in the name of the state at the relation of a named individual or merely in the name of that individual as plaintiff. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
Citizens and taxpayers, merely by virtue of their interest as such, may maintain the writ of mandamus to enforce a public right. State v. County Court. 47 W.Va. 672, 35 S.E. 959.
The county court is properly made the relator in mandamus proceedings to compel a commissioner to reassess certain land as town lots instead of by the acre as farming land. State v. Herrald, 36 W.Va. 721, 15 S.E. 974.
B. RESPONDENT.
1. Persons Subject to Writ.
a. Officer or Department of State.
The state being exempt from suit by Const. art. VI., § 35, mandamus will not be against the state or any officer or department of the state, such as the board of agriculture. Miller v. State Board of Agriculture, 46 W.Va. 192, 32 S.E. 1007; Johnson v. State Board of Agriculture, 46 W.Va. 196, 32 S.E. 1039.
b. Private Persons.
Mandamus lies only to a public officer, not to a private person, or the mere employee of a public officer. Heath v. Johnson. 36 W.Va. 782, 15 S.E. 980.
Hence it will not lie to compel a school teacher to use a particular text-book, the use of which was prescribed by statute, the remedy, if any, would be against the county superintendent of schools. Heath v. Johnson, 36 W.Va. 782, 15 S.E. 980.
XI. PROCEEDINGS IN MANDAMUS.
A. GENERAL OUTLINE.
1. At Common Law.
The mode of proceedings in this early day to obtain a writ of mandamus was by a motion based upon an affidavit for a rule to show cause, why a writ of mandamus to perform a specified act should not be issued. The hearing of this motion was usually ex parte, no notice thereof being given to the other party. If the motion was sustained, an order was made directing the rule to show cause to be issued. It was provided in the order, that the rule should be served by delivering to the defendant a copy of the order, which required him to appear at a certain time and show cause against the issuing of the writ of mandamus described, and on the return day the defendant was heard, and any counter-affidavits filed by him were considered. The affidavits in support of the motion should according to this old practice contain a precise statement of the facts constituting the relator's right to the writ, and the allegations were required to be stated in this affidavit so positively, that if false, the relator could be successfully prosecuted for perjury. Such affidavits should also show, that the relator was entitled to the relief he asked; that he had complied with all the necessary forms to constitute his right; and that he had applied to the defendant to do that which he asked, and that he had refused or neglected to do it. If by the counter-affidavits of the defendant it was perfectly apparent that the relator was not entitled to the writ, the rule was discharged; but if the relator's right to the writ after the receiving of the counter-affidavits was doubtful, the rule was made absolute, in order that the right might be formally tried, and an order was entered directing an alternative writ, or mandamus nisi, to be issued.
In this writ it was absolutely necessary to set forth the facts, which entitled the prosecutor to the relief prayed for. It was addressed to the person or persons, whose duty it was to perform the act, and it commanded him or them to do the thing required, which was accurately specified, or show some cause why he or they should not do it. To this writ the defendant was required to make a written return either denying the facts stated in the writ or setting forth other facts sufficient to defeat the relator's claim. If the alternative writ or mandamus nisi was defective in form merely, the defendant could move to quash it, before he made his return; but for such defect he could not move to quash, after he made his return; but for a defect of substance the writ of mandamus nisi would be quashed at any time, before a peremptory mandamus was awarded. If the return of the defendant was adjudged as insufficient answer or if he made no return, a peremptory mandamus was awarded commanding absolutely the defendant to do the thing required; and if this writ was disobeyed, an attachment issued against the defendant. If the return was sufficient in law but false in fact, the relator could not traverse it but was forced to resort to his action against the defendant for a false return. Fisher v. City of Charleston, 17 W.Va. 595.
If in such action the return was falsified, a peremptory mandamus issued. Supervisors v. Randolph, 89 Va. 614, 16 S.E. 722.
2. The Present Practice.
The proceedings in mandamus have been generally modified by statutory provisions. The statute of 9 Anne, ch. 20, conforming the proceedings in mandamus to to those in ordinary actions at law, is the most important. Both Virginia and West Virginia have enacted similar statutes. Fisher v. City of Charleston, 17 W.Va. 595.
But these statutes are simply declaratory of the common law, in relation to the scope of the remedy. Clay v. Ballard, 87 Va. 787, 13 S.E. 262; Douglass v. Loomis, 5 W.Va. 542.
The usual practice in West Virginia, and the most usual practice in this country, is to begin the proceedings by presenting to the court an application in the form of a petition setting forth in detail the grounds, upon which the petitioner asks a writ of mandamus. This petition in this state is usually ex parte, no notice that it will be filed being given to the defendants, and it is always supported by affidavit, when presented by a private person. If a prima facie case is presented by this petition warranting the relief sought, the court frequently issues a rule, which is served on the opposite party, requiring him to show cause, why a mandamus should not issue. But in this state the issuing of this rule is frequently dispensed with; and the most usual practice is to issue the alternative writ immediately on the filing of a proper petition supported by affidavit. Where the court thinks proper to issue a rule, and it has been served, if the defendant fails to answer it or files an insufficient answer, the court either issues a peremptory writ of mandamus, enlarges the rule or compels an answer, as may be proper in the particular case But if the answer denies the facts stated in the petition or shows sufficient cause, why the rule should not issue, so that it appears, that there is a dispute of fact between the parties, an alternative writ of mandamus is ordered to be issued, in order that by the return to such alternative writ of mandamus a formal issue may be made up and tried. This alternative writ of mandamus, whether issued immediately on the filing of the petition or after the return of such a rule, here as elsewhere stands in lieu of a declaration in an ordinary suit. The facts, however, alleged in this alternative writ, may be alleged by way of recital; but it being in the nature of a declaration as well as of a writ, the sufficiency of these facts to entitle the plaintiff to the redress he seeks is called in question by a motion to quash the alternative writ or by a demurrer to it, and any defect in the recitals or allegations of this alternative writ cannot be aided by the petition or affidavit thereto, for though they be the foundation, on which the writ was issued, they constitute no part of the pleadings in the case. If the petition does not state the necessary facts to justify the issuing of an alternative writ or a rule, neither ought to be issued, and if issued, on the return day this fatal defect should be taken advantage of not by demurrer but by a motion to quash the alternative writ or to discharge the rule as improvidently awarded. The petition and affidavit bear to the mandamus nisi a relation similar to that which an affidavit bears to an attachment.
When the alternative writ of mandamus has been issued, if the defendant does not do the act required, and the writ be not quashed on motion or dismissed on demurrer, the defendants, to whom it is addressed, and none others must make a return thereto. This return under our statute is in the nature of a plea in an ordinary action at law, and it must be tested by the ordinary rules of pleading both as to its form and substance. It must there fore be in the nature of a traverse or a plea in confession and avoidance; and if insufficient in law, it may be demurred to by the complainant, or he may reply thereto; and so the pleadings proceed as in an ordinary common-law suit, till the parties are at issue in fact or law, which issues are tried as in an ordinary action at law. Fisher v. City of Charleston, 17 W.Va. 595; Com. v. Justices of Fairfax Co., 2 Va.Cas. 9; Doolittle v. County Court, 28 W.Va. 158; Morgan v. Fleming, 24 W.Va. 186.
B. PROCEEDINGS IN DETAIL.
1. The Petition.
a. Allegations.
The petition must set forth a prima facie case, if it does not, no alternative writ should issue. Wintz v. Board, 28 W.Va. 227.
But it is only necessary for the petition to set forth a prima facie case. The petition not being a part of the pleadings, the strict rules of pleading do not apply to it. Fisher v. City of Charleston, 17 W.Va. 595; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628; Welty v. County Court, 46 W.Va. 460, 33 S.E. 269.
b. Verification.
Though the petition for mandamus is not verified by oath, or affidavit, if the respondents appear and move the court to dismiss the rule, on the ground that the court was without jurisdiction, this amounts to a waiver of the want of an affidavit to the petition. Board v. Minturn, 4 W.Va. 300.
2. Rule to Show Cause.
a. Necessity.
Although in the older cases, it is laid down that a rule to show cause is necessary (Dinwiddie Justices v. Chesterfield Justices, 5 Call 556; Com. v. Fairfax Justices, 2 Va.Cas. 9), the modern practice seems to be to issue the alternative writ immediately upon the filing of the petition, without any rule to show cause, as was said in a late West Virginia case.
" The better practice is, when a petition for a mandamus is filed, to award an alternative writ of mandamus, stating all the facts therein calling for a mandamus, as would be stated in a declaration; for this alternative writ is treated as a declaration in the action called mandamus. It is not necessary to issue a rule, for, where matters of fact come in an answer to it, it necessitates an alternative mandamus, and after that a peremptory mandamus, making three processes or awards instead of two. There is no use of a rule. The alternative writ should be resorted to in the first instance." Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628; Doolittle v. County Court, 28 W.Va. 158; Sights v. Yarnalls, 12 Gratt. 292.
" Though doubtless the court may, if it deem it proper, in a particular case to decline to issue an alternative writ of mandamus, until a rule to show cause has been first issued and returned." Fisher v. Mayor, 17 W.Va. 628; Doolittle v. County Court, 28 W.Va. 158.
Even where such a rule is held necessary, it is admitted that the respondents may waive it, and a voluntary appearance and return to the alternative writ amount to such a waiver, though an insufficient return, e. g. a return by attorney, being equivalent to no return, will not constitute such waiver. Dinwiddie Justices v. Chesterfield Justices, 5 Call 556.
3. Answer to Rule.
a. Sufficiency.
The sufficiency in law of an answer to a rule should be tested by motion for a peremptory mandamus, not by demurrer, while its truth in fact should be tested by the issuance of an alternative writ. Fisher v. City of Charleston, 17 W.Va. 595; Wells v. Town of Mason, 23 W.Va. 456.
But if the court sustains the demurrer and orders the peremptory writ to issue, the respondents cannot complain of such irregularity. Wells v. Town of Mason, 23 W.Va. 456.
Whether it be proper or not to treat the answer to the rule to show cause as if it were the return to the mandamus nisi, by demurring and filing a replication thereto, the propriety of such pleading cannot be enquired into, where the respondent does not complain, the petitioner not being in a position to object to his own pleading. Cummings v. Armstrong, 34 W.Va. 1, 11 S.E. 742.
4. The Alternative Writ.
a. Necessity.
Where upon the answer to the rule to show cause the applicant's right to the writ appears doubtful or disputed, the writ should not be refused, but an alternative writ should be issued, in order that upon the return to such writ, the right may be tried. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1.
Where there is no answer to the rule raising an issue of fact, and the rule and the petition state facts warranting a peremptory mandamus, a peremptory mandamus issues at once without an alternative mandamus. Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187.
So where the answer to the rule to show cause is insufficient in law, the peremptory writ should issue at once, such answer being equivalent to no answer. There is no necessity in such case for an alternative writ, this being necessary only when there is a dispute about material facts. Wells v. Town of Mason, 23 W.Va. 456.
As a matter of convenience it is sometimes stipulated, that the petition may stand for the alternative writ, or that the rule for a mandamus nisi shall stand for the alternative writ, and then, of course, by consent of parties and with the assent of the court this petition or rule, as the case may be, is regarded as in lieu of a declaration, and the ordinary rules of pleading are applied to them, which without such stipulation would not be the case. Regularly this stipulation or agreement should be entered or noticed on the record. But without any such formal stipulation, cases occur, where the court has treated the petition or the rule, as though it has been the alternative writ, but in these cases no objection appears to have been made to this informal mode of proceeding, and it may be inferred, that though no assent was entered of record, yet there was really an assent thereto by the parties. But such precedents should be avoided as tending to confusion and difficulty. Fisher v. City of Charleston, 17 W.Va. 595; The Dinwiddie Justices v. The Chesterfield Justices, 5 Call 556; Goff v. Wilson, 32 W.Va. 393, 9 S.E. 26; Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
Without an agreement to that effect, however, express or implied, the petition or the rule to show cause why a mandamus should not issue cannot be treated as an alternative writ, hence the action of a court in allowing the plaintiff to reply generally to the answer to such rule, where there is a dispute of fact between the parties, as if it were the return to an alternative writ, instead of issuing an alternative writ, and all subsequent proceedings are irregular, and will be set aside, and the cause remanded, with direction to issue an alternative writ. Fisher v. City of Charleston, 17 W.Va. 595.
b. Form and Allegations.
An alternative writ of mandamus answers two distinct ends: First, it is a writ; and secondly it is the plaintiff's declaration. In form it is a writ, but is distinguishable from an ordinary writ of any other sort in this, that the inducement must set out all the facts on which plaintiff's demand rests, as clearly as it must be done in a declaration, with this difference, however, that in the alternative writ of mandamus these facts are set out as a preamble to the writ, and therefore by way of recital; whereas in a declaration they cannot generally be set out by way of recital. Fisher v. Mayor, 17 W.Va. 628; Doolittle v. County Court, 28 W.Va. 158.
At common law, the case being determined entirely upon the alternative writ, and the return thereto, such return not being traversable, the utmost certainty and accuracy was required in these, even greater than in the pleadings in an ordinary suit at law, but by the statute of Anne, 9 Anne, ch. 20, and ch. 109, Code W. Va., which are practically identical, the return to the alternative writ being traversable, the same rules of pleading applicable to an ordinary action at law apply to the pleadings in mandamus, neither greater nor less strictness being required. Fisher v. City of Charleston, 17 W.Va. 595; Doolittle v. County Court, 28 W.Va. 158.
Where the alternative writ does not state a necessary fact it should be quashed. Wintz v. Board, 28 W.Va. 227.
But the mandamus nisi will not be quashed for a mere formal defect, which the court would have allowed to be amended at the bar and which could have been amended truthfully. Doolittle v. County Court, 28 W.Va. 158.
The alternative writ must set forth by distinct recital and not by reference to the petition all the facts necessary to show the plaintiff's right to the writ, since no reference can be made to the petition to eke out the allegations of the writ. Doolittle v. County Court, 28 W.Va. 158.
So where the alternative writ fails in its inducement to state any of the facts on which the plaintiff bases his demand, and simply states, that, whereas the plaintiff had filed a petition for a mandamus and the judge had ordered it to be issued, therefore we command you, etc., no issue can possibly be made on such an alternative writ, no facts are stated, it is simply a writ and cannot serve, as it must, the further purposes of a declaration and should be quashed.
Such error, however, may be corrected by amendment, if the proper facts are stated therein. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
But in Welty v. County Court, 46 W.Va. 460, 33 S.E. 269, it was held that though the petition and rule constitute no part of the pleadings in mandamus, and to these the strict rules of pleading are not applied, yet the allegations of the petition may be resorted to for the purpose of showing that the relator has made a prima facie case, such as would entitle him to the alternative writ. Welty v. County Court, 46 W.Va. 460, 33 S.E. 269. See also, Doolittle v. County Court, 28 W.Va. 158; Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187.
c. Command.
The alternative mandamus must require only that to be done which the petitioner has a right to have done, since the peremptory writ must follow the alternative strictly, and cannot be varied, or modified, hence if all that is acquired in the alternative cannot be compelled, nothing can be compelled and the writ should be quashed. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
So the alternative writ must command the doing of everything necessary to give the desired relief, since the peremptory writ cannot command anything additional to be done. So where the alternative writ merely commands the county court to allow a petition for the relocation of a county seat to be filed, instead of ordering the said court to make an order for the submission of the question to the voters of the county, it is defective, since the peremptory writ would have to follow the alternative writ and would be entirely inadequate. Doolittle v. County Court, 28 W.Va. 158.
Since the petition forms no part of the pleadings in a mandamus case, but is merely the basis on which the alternative writ is issued, though the petition asks for an alternative writ to which the petition is not entitled, yet if the facts disclosed in the petition show that he is entitled to some writ, though different from the one asked for, the court will award him such an alternative writ as he is really entitled to. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
It is not necessary for the writ of mandamus to conform strictly to the terms of the rule to show cause; if the return to the rule shows that the circumstances of the case require, in order to do strict justice between the parties, that the terms of the writ vary somewhat from those of the rule, such change may be made. Dew v. Judges of Sweet Springs, 3 Hen. & M. 1, 3 Am. Dec. 639.
d. Sufficiency--Motion to Quash and Demurrer.
A motion to quash puts in issue not only the sufficiency of the alternative writ, but also the sufficiency of the petition on which such writ is based; and, therefore, if the defect, which the defendant seeks to take advantage of, is in the alternative writ itself, and not in the petition, the formal mode of pleading is to demur, and not move to quash, and vice versa, if the defect is in the petition; but, while this is the technical and formal mode of proceeding, the court will nevertheless treat a motion to quash the alternative writ as the equivalent of a demurrer to such writ. The motion to quash in such case is not only the equivalent of a demurrer, but it reaches defects in the petition in like manner as such motion does the affidavit in an attachment. The motion to quash in this case, therefore, having all the effect of a demurrer and more, it is wholly immaterial whether there was or not, in fact, a demurrer in the record. State v. County Court, 33 W.Va. 589, 11 S.E. 72.
A motion to quash the alternative writ in mandamus proceedings should be made before a return is made to the writ, but such an irregularity will not prevent the court from quashing the writ if it is defective in substance. Poteet v. County of Cabell, 30 W.Va. 58, 3 S.E. 97.
e. Service of Writ.
It is not necessary for all the justices composing the county court to be served with a mandamus nisi, it is sufficient if it be served upon those sitting. Smith v. Dyer, 1 Call 562.
The alternative writ may be served on nonresidents by publication, just as well as the process in any other suit. Cross v. West Virginia, etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
The court may order that the service of a copy of the order for the issuance of the writ of mandamus nisi on the respondent, shall have the same effect as the service of the writ itself. Cowan v. Doddridge, 22 Gratt. 458; State v. Cunningham, 33 W.Va. 607, 11 S.E. 76.
f. Amendment.
The alternative writ may be amended, and it is not necessary for the amended writ to be served upon the respondents, since the alternative writ serves the double purpose of process and declaration, and an amended declaration does not have to be served. Town of Mason v. Ohio River R. Co., 51 W.Va. 183, 41 S.E. 418. See also, Fisher v. Mayor of Charleston, 17 W.Va. 628.
5. Return to Alternative Writ.
a. By Whom Made.
The return to a writ of mandamus must be by the person or persons to whom it is directed, not by an attorney, otherwise the return in insufficient. Dinwiddie Justices v. Chesterfield Justices, 5 Call 556.
b. Insufficient Return or No Return.
Where no return is made to the alternative writ, if sufficient cause is not shown or not properly shown, a peremptory writ will issue. Dinwiddie Justices v. Chesterfield Justices, 5 Call 556.
Where no return is made to an alternative writ of mandamus, the court may, in its discretion, order a peremptory writ to issue without compelling a return and extending the time for such return, where the respondents have already had a sufficient time to make their return and the proceedings indicate clearly that they have no substantial defence to make. Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
All the material averments of the alternative writ, not denied by the return, are to be taken as true. Cross v. W. Va., etc., R. Co., 35 W.Va. 174, 12 S.E. 1071.
c. Purging Return.
A motion to purge the return to a rule nisi from, alleged " unfit, impertinent, and scandalous matter," will not be granted, where it seems that such matter was provoked and warranted by allegations and insinuations of the petition. Moon v. Wellford, 84 Va. 34, 4 S.E. 572.
6. Replication--Necessity. --So far as the return to the alternative writ merely denies the allegations of the writ, no replication is necessary. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
But where the return sets up new matter in bar of the writ, if such matter constitutes a good defence to the writ, as where a demurrer has been filed and overruled, a replication is necessary, since in the absence of such replication denying the truth of the new allegations, they must be taken as true, and the writ should be dismissed. State v. County Court, 47 W.Va. 672, 35 S.E. 959; Page v. Clopton, 30 Gratt. 415.
To submit the truth of such new allegations to a jury is error, there being no issue as to them; so that if they find a verdict contrary to the admitted allegations, the verdict must be set aside by the higher court and the writ dismissed. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
While the allegations of a sufficient return may be traversed, no traverse should be tendered to an insufficient return. Com. v. Justices of Fairfax Co., 2 Va.Cas. 9.
7. Demurrers--Effect. --Upon a demurrer to the return to a mandamus nisi, the court will go back to the first error committed in the pleading, according to the general rule of pleading, and will give judgment against the party making the first error, hence a motion to quash the writ in such case is unnecessary. Doolittle v. County Court, 28 W.Va. 158; Morgan v. Fleming, 24 W.Va. 186.
A demurrer to an answer in mandamus proceedings, as in other cases, admits the truth of all facts sufficiently pleaded. Cummings v. Armstrong, 34 W.Va. 1, 11 S.E. 742; Morgan v. Fleming, 24 W.Va. 186.
8. Peremptory Writ. --The peremptory writ must follow strictly the command contained in the alternative writ. Doolittle v. County Court, 28 W.Va. 158; Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
But while the command in the alternative writ must be strictly followed in the peremptory writ, still, the mere fact that the alternative writ commands the ballot commissioners to assemble and recount the votes, while the peremptory writ, in addition, commands them to declare the true result according to the recount, and issue a proper certificate of election, is no ground of objection, since this addition does not modify the rule in a legal view, since it only requires the respondents to do that which would follow as a necessary consequence, from the command in the alternative writ. Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187.
Though the peremptory writ uses the expression " county clerk" instead of " clerk of the county court" this is not a fatal defect where the meaning can be plainly gathered from the rest of the record. Hebb v. Cayton, 45 W.Va. 578, 32 S.E. 187.
C. COMPETENCY OF EVIDENCE--HOW QUESTIONED. --A motion for a peremptory writ of mandamus, notwithstanding the answer, is the proper method of raising the question of the competency of evidence. Roe v. Town of Philippi, 45 W.Va. 785, 32 S.E. 224.
D. JOINDER OF SEVERAL RELATORS. --In State v. McAllister, 38 W.Va. 485, 18 S.E. 770, Brannon, J., in his dissenting opinion, said that although the rule was that where the interest of several relators were separate and independent, they cannot join in one writ of mandamus, he was of opinion that two councilmen could join in such a writ to compel their admission to the council. The other judges did not pass upon the point.
E. REVIVAL OR CONTINUATION OF WRIT. --Where the parties against whom a peremptory writ of mandamus has been awarded, have ceased to occupy their official positions, the case must be revived against their successors in office, and another writ awarded against them. Wells v. Town of Mason, 23 W.Va. 456.
In State v. County Court, 47 W.Va. 672, 35 S.E. 959, where the prosecuting attorney sued out a writ of mandamus in the name of the state on behalf of himself as such, and as a citizen and taxpayer, and also in behalf of other citizens and taxpayers, to compel the county court to build a new courthouse, and afterwards dismissed the writ, he being the only person named as plaintiff, the court was of opinion that other citizens and taxpayers had no right to have the suit continued in their names, the state in such case being a mere nominal party, the relator being the real plaintiff, but the writ was quashed because the writ was continued without notice to the respondent.
Notice.--Where a writ of mandamus abates, in order to revive or continue the suit in the name of another party, it is necessary to give notice to the respondent, in order that he may contest the right of such party to maintain the writ, and in the absence of notice the writ should be quashed. State v. County Court, 47 W.Va. 672, 35 S.E. 959.
So, where the proceedings are revived against a city council, elected since the institution of the proceedings, such new respondents must have notice. Fisher v. City of Charleston, 17 W.Va. 595; Fisher v. Mayor, etc., of Charleston, 17 W.Va. 628.
F. APPELLATE PRACTICE--NECESSITY FOR BILL OF EXCEPTIONS. --It is not necessary to except to the action of the lower court in awarding a writ of mandamus, in order to make the pleadings and exhibits part of the record and so available in the supreme court of appeals, they being already a part of the record. Board v. Catlett, 86 Va. 158, 9 S.E. 999.
XII. ENFORCEMENT OF MANDATE.
Where the respondent refuses to obey a peremptory writ of mandamus, he is guilty of a contempt, and obedience may be enforced by attachment. Fisher v. City of Charleston, 17 W.Va. 595.
In contempt proceedings for refusal to obey a peremptory writ of mandamus, the jurisdiction of the court to issue the writ is res adjudicata, and cannot be questioned. State v. Cunningham, 33 W.Va. 607, 11 S.E. 76.
Contempt proceedings for refusal to obey a peremptory writ of mandamus cannot be reviewed on an application for a writ of habeas corpus by the party in contempt, where the court acted within its jurisdiction, in awarding the writ of mandamus. Cromwell v. Com., 95 Va. 254, 28 S.E. 1023.
A contempt of court is a criminal offense, and the imposition of a fine for contempt is a judgment in a criminal case. Therefore the same principles of evidence apply as in other criminal trials, and the guilt of the respondent must be proved beyond a reasonable doubt. State v. Cunningham, 33 W.Va. 607, 11 S.E. 76.
[*]For monographic note on Mandamus, see end of case.