Howard v. Ferguson , 116 W. Va. 362 ( 1935 )

We have before us in this proceeding two claimants to the office of judge of the circuit court of Mingo County. Judge B. F. Howard claims that office by virtue of having been elected thereto in the general election held in November, 1930, at which he was selected judge of the Eighth Judicial Circuit, comprising the counties of McDowell and Mingo, for an unexpired term ending the 31st day of December, 1936. Judge Charles W. Ferguson claims that office under an act of the legislature passed February 4, 1935, transferring the county of Mingo from the Eighth Judicial Circuit to the Twenty-fourth Judicial Circuit, of which he is the judge, effective the 1st day of March, 1935, "or as soon thereafter as this act shall take effect." If the act of the legislature is to be fully sustained as constitutional, then under its plain terms, Judge Ferguson became judge of the circuit court of Mingo County on the 1st day of March, 1935. If the act, or that part thereof making it effective on the 1st day of March, 1935, is to be overthrown as unconstitutional, then Judge Howard remains the judge of the circuit court of Mingo County until the expiration, on December 31, 1936, of the term for which he was elected. There is no other question to be decided in the case, and it is perfectly apparent to my mind that its sole object is to procure a decision that will settle the conflicting claims to the office of judge of the circuit court of Mingo County.

Prohibition is not a proper proceeding to settle conflicting claims to a public office, or, in other words, to try the title to a public office. Moore v. Holt, 55 W. Va. 507, 47 S.E. 251. This rule is so universally recognized and is so deeply imbedded in West Virginia precedent that it can be neither denied nor questioned, and extended citations are not needed to guide the inquirer to the many cases sustaining it. In my opinion, the theories advanced in the majority opinion effectively abrogate the time-honored and extremely practical distinction between the appropriate remedies of mandamus and quo warranto, and the entirely inappropriate remedy of prohibition, for settling the right, as between conflicting claims, to occupy a public office.

The majority opinion seeks to distinguish this case from a case the purpose of which is to try the right to occupy a public office, and thus to place this case outside the established rule, which the majority opinion recognizes, in the following manner: "Such, we conceive, however, is not the real object of the proceeding, although the right to the office of judge of the circuit court of Mingo County is necessarily involved. This is not a personal controversy between Judge Howard and Judge Ferguson. It is a broader matter, constituting basically an effort on the part of citizens of Mingo County to prohibit from presiding in the circuit court of that county a man who, they aver, is precluded by the constitution from assuming said duties under his present warrant of authority." It is perfectly true that, joined with Judge Howard as parties petitioner are J. Brooks Lawson, Fred Kopp and J. E. Wilkinson in their own right and as commissioners in chancery of the circuit court of Mingo County, and J. M. Jordan in his own right and as divorce commissioner of the circuit court of Mingo County. This circumstance, naturally, brings into the case interests other than the personal interest of Judge Howard in the office in controversy, but it does not remove the outstanding fact that the contest for the office itself is the meat and kernel of the case. I think the majority opinion confuses the question of parties with the question of jurisdiction of the subject matter. The subject matter of this proceeding would remain the same if all of the citizens of Mingo County were to become parties petitioner, as it would if they all became plaintiffs in an action of debt for the recovery of land. The subject matter does not change by the addition of parties who may have interests in that subject matter differing from that of the main petitioner. Of course, the citizens of Mingo County have an "inherent interest" in the office of circuit judge of that county, but it is perfectly apparent that they have the same interest in every other public office, from the highest to the lowest, in that county. If this "inherent interest" is all that needs to be set up in a prohibition proceeding in order to permit title to a public office to be tried by that means, then, of course, the time-honored distinction between prohibition on the one hand and mandamus and quo warranto on the other, may be defeated by the most superficial of expedients by simply joining in the proceeding a citizen or two possessed of this "inherent interest." There is no authority for permitting to be done by such obvious indirection the thing that may not be directly done.

If we can take jurisdiction in a prohibition proceeding to decide the right to occupy the office of judge of the circuit court of Mingo County when that right turns upon the validity or invalidity of an act of the legislature, why may we not do so in a case where that right would depend upon the validity or invalidity of an election? Why not where the right turns upon the validity or invalidity of votes cast in an election? Surely, the jurisdiction of the subject matter cannot depend upon the nature of the legal question involved in the particular controversy. If not, then I respectfully submit that the theory asserted in the majority opinion will make it possible to decide all matters affecting elections which relate to the title to the public office involved, in a prohibition proceeding by simply adding as parties petitioner certain citizens having an "inherent interest" in the office in controversy. This principle confers upon the courts the power to prevent persons duly elected to public office from entering upon the duties of those offices until after the courts have given leave. The right to prohibit a person from entering upon a public office before a full hearing is something to be distinguished from the right to remove from a public office after hearing. See the discussion in Moore v. Holt, 55 W. Va. 507,47 S.E. 251, which makes this case a nationally recognized authority.

It seems to me that this matter of the "inherent interest" of citizens in their public offices, as it affects the question of jurisdiction to try title to a public office in a prohibition proceeding, although not alluded to in the opinion, was much more strongly before the court in the case last mentioned than it is in this. An examination of the record upon which this court decided the case of Moore v. Holt, 55 W. Va. 507,47 S.E. 251, discloses that sixteen citizens of the Town of Montrose in Randolph County brought a proceeding in prohibition in the circuit court of that county alleging that by virtue of a void city election, one J. H. Moore was usurping the office of mayor, one C. B. Hyer the office of recorder, and O. B. Hyer, H. Moore and N. A. Moore offices of councilmen of that town. It was averred that the five persons alleged to be usurping the offices named were five of the seven members of the town council. The averments of the petition show that the sixteen petitioners comprised a clear majority of the 28 legal voters of the town, and were thus entitled to control, in a proper case, its municipal organization. The interest of the petitioners in the municipal organization of the town as citizens was set up. The petition thus made plain that not only one public office, but five public offices were at stake, and furthermore, that the right to occupy these offices would determine the entire government of the town. It would be difficult to imagine a more vital "inherent interest" in public offices on the part of citizens of a governmental sub-division than is displayed by this petition. On the strength of it, the judge of the circuit court of Randolph County issued a rule in prohibition. Then a prohibition proceeding was brought in this court, the purpose of which was to prevent the judge of the circuit court of Randolph County from proceeding further in the prohibition case before him because its purpose was to try the right to occupy public offices. The proceeding in the circuit court had been decided on demurrer overruled, so that the allegations of the petition filed in the circuit court, for the purpose of the proceeding here, were admitted. This Court issued a writ of prohibition, the opinion by Judge Poffenbarger quoting the language of Judge Dent in Board ofEducation v. Holt et al., 54 W. Va. 167, 46 S.E. 134 (which see for a discussion of the principle that prohibition cannot be used as a means of preventing a person from entering upon a public office), as follows: "Such use of prohibition is plain usurpation of and abuse of judicial function." In stating the reasons for the award of the writ, the court gave the first as follows: "The subject matter has not been brought within its cognizance by any process which the law has appointed for the purpose." Later in the opinion, the court further stated: "Hence, the court, by using it (referring to the writ of prohibition used as a means of trying title to a public office), obtained no jurisdiction of controversies of the kind presented, because the inevitable effect of its use is to do that which the court has no power to do."

I cannot further prolong these comments. It seems to me that the overwhelming weight of both reason and authority is contrary to the views expressed in the majority opinion on the question of jurisdiction. To discuss the merits of a controversy that I do not regard as being so much as before this Court, I think would be but begging a question that should prevent the merits from being considered in this proceeding. It is to be borne in mind, of course, that the views I express are not intended to minimize the importance of the right of these petitioners. However, there are other remedies, full, prompt, complete and designed for the very purpose of giving redress to the exact grievances complained of here. I submit, with all deference, that permitting petitioners to assert rights of the nature set up in their petition here, in a proceeding in prohibition, is to give to the courts a power they were never intended to exercise, and does vital injury to our system of jurisprudence. I would dismiss the petition for lack of jurisdiction.

Judge Hatcher authorizes me to say that he concurs in my observations on the procedure in this case.