State ex rel. Morrison v. Freeland , 139 W. Va. 327 ( 1954 )

Given, President:

These proceedings were instituted in the Circuit Court of Harrison County upon informations in the nature of quo warranto, pursuant to the provisions of Code, 53-2-4. The circuit court sustained demurrers to the informations and, respondents having declined to amend, dismissed the proceedings. Questions involved upon the writs of error granted by this Court are identical and are considered together.

At the municipal election held for the City of Clarks-burg on the third Tuesday in April, 1953, one of respondents, Andrew J. Freeland, was a candidate for the office of city councilman from the second ward and the other respondent, Fred Harbert. was a candidate for the office of city councilman from the fifth ward. The canvass of the election returns, made on April 24,1953, about which there exists no dispute, established that respondents in their respective wards had received a majority of the votes cast for such offices. Certificates of election were duly issued, on May 4, 1953, and on that day respondents took and subscribed the required oath of office, and immediately attempted performance of the duties of their respective offices.

The relators are members of the city council of Clarks-burg, and the basis of their contention, upon which they would try the right or title of respondents to the offices involved, rests upon the provision found in Section 12 of the charter of that city, enacted by the 1921 Legislature, which reads: “No person shall be elected or remain a member of the city council who does not reside in the ward from which he is elected and who is not a freeholder of record in the city of .Clarksburg”. Relators allege that respondents were not freeholders of record in the City of Clarksburg at the time of the election.

The first ground of the demurrers of respondents, the ground upon which the circuit court sustained the demurrers, relates to the right of relators to maintain these proceedings, the contention being that relators are not persons “interested” within the meaning of Code, 53-2-4, which, in so far as material, reads: “In any case in which a writ of quo warranto would lie, the attorney general or prosecuting attorney of any county, at his own instance or at the relation of any person interested, or any person interested, may, in the name of the State of West Virginia, apply to any such court or judge thereof in vacation as is mentioned in the second section of this article for leave to file an information in the nature of a writ of quo war-ranto * * * But if the leave to file such information be asked on the relation of any person, or by any person at his own instance, the summons thereof shall not be issued by the clerk until such relator or person shall give the bond and security required by the next preceding section * * *”.

It may be noticed that the statute contains no language attempting to ascribe to the word “interested” any special or limited meaning. It is a word of common use but of wide and varied meaning, as shown by Webster’s definitions thereof. This Court, however, and we believe in accord with the great weight of authority of other jurisdictions having similar statutes, has limited the meaning thereof in some respects. In State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994, it is held: “1. In a proceeding by way of an information in the nature of a writ of quo .warranto against a person who is claimed to have intruded into or usurped the office of sheriff of a county, such proceeding must be at the relation of some person interested, otherwise than as a citizen and taxpayer, unless such proceeding is instituted at the instance of the ATTORNEY GENERAL or the prosecuting attorney of the county.” This case is also authority for the proposition that a defeated candidate is not such an “interested person” within the meaning of the statute, where such defeated candidate has no claim to the office involved, such as the right to remain in office until a successor has been elected and qualified. In State ex rel. Scanes v. Babb, 124 W. Va. 428, 20 S. E. 2d 683, it is held that a de facto officer as such is not an “interested person” within the meaning of the statute. See Bryant v. Logan. 56 W. Va. 141, 49 S. E. 21.

It is contended that the decisions of this Court indicate that the “interest” required by the statute must be an interest in the office involved. We think, however, that the rule upon which the decisions rest, as indicated by the authorities cited therein, is that the Legislature could not have intended that an officeholder be subjected to litigation, as to his right or title to the office, at the hands of every citizen and taxpayer. This would not be in the public interest. It would not only tend to confuse and delay the exercise of the rights and functions of those elected or appointed to office, but would probably prevent the seeking or acceptance of public offices by many capable persons. The interest which we believe is necessary to maintain such an action under our statute must be some substantial interest, special or peculiar to the relator, either in his individual or official capacity, an interest not possessed by members of the general public as mere citizens and taxpayers. Authorities of other jurisdictions where statutes are similar to our own are at great variance. See Hammer v. Commonwealth ex rel. Hoover, 169 Va. 355, 193 S. E. 496; State ex rel. Gall v. Barnes, 136 Minn. 438, 162 N. W. 513; State ex rel. White v. Barker, 116 Iowa 96, 89 N. W. 204, 57 L.R.A. 244; Jones v. Riggs, 154 N. C. 281, 70 S. E. 465; Smith v. Reid, 60 S. D. 311, 244 N. W. 353; State ex rel. Murdock v. Ryan, 41 Utah 327, 125 P. 666; Vrooman v. Michie, 69 Mich. 42, 36 N. W. 749; People ex rel. Barton v. Londoner, 13 Colo. 303, 22 P. 764, 6 L.R.A. 444; People ex rel. Hiller v. Bevirt, 297 Ill. App. 335, 17 N. E. 2d 629; State ex rel. Pooser v. Wester, 126 Fla. 49, 170 So. 736; 44 Am. Jur., Quo Warranto, Section 74. It will be noticed that a number of these cases decided under statutes similar to our own go so far as to hold that the interest of a citizen and taxpayer is sufficient to enable a relator to maintain a proceeding upon information in the nature of quo warranto.

The precise question to be determined here is whether members of a city council elected from certain wards have such an interest within the meaning of the statute to enable them to prosecute a proceeding in the nature of quo warranto, to have determined the right of another person to hold office as a member of that body from a different ward. We are cited no authority, and have found none, which seems directly in point. The charter of the City of Clarksburg provides for a city council of nine members. It also provides that five members thereof shall constitute a quorum, and that a majority vote of.the members shall be necessary for the transaction of business, including the enactment of ordinances under which the municipality will be operated. Thus it will be seen that the vote of any member may often determine the success or failure of any motion before that body. This being true, can it be said, by any process of reasoning, that each member of the council is not interested, as an individual and as an officer, in having only properly elected officers participate in the transaction of the business of that body? Is not such interest of such dignity as to make it the duty of each member, either as an individual or as a member of that body, to prevent illegal or unauthorized participation in the voting on the important issues which must be settled by that body? Is not the interest of each member, because of the duties imposed, and the privileges granted, different and far more substantial than the interest of a mere citizen and taxpayer? We think it must be held"that each member of the council is possessed of such an “interest” as entitles him to prosecute such an action. We think it can not be argued with much force that one in such position has no interest in seeing that the business of the council is not controlled by a mere usurper of office. To so construe the statute does not unduly extend or broaden the field of potential relators in such proceedings as to make possible undue harassment of those willing to accept office. It is more likely to cause only those who are in fact qualified to hold office to seek office. To hold otherwise would so limit the use of the proceeding as to render it practically useless.

In 44 Am. Jur., Quo Warranto, Section 76, we find this statement: “Where quo warranto is an available remedy to test the right to act as a director or other officer of a private corporation or association, the proceedings may be brought upon the relation of anyone having the necessary interest, such as a director, a trustee, or a stockholder.” The interest of a member of a city council would, it seems to us, be as substantial as that of a director of a private corporation, considered either from an individual or a public viewpoint. Undoubtedly, the Legislature, in making available a remedy upon an information in the nature of quo warranto, in addition to the statutory remedy of quo warranto provided by Code, 53-2-1, intended to create a more liberal method of determining the right or title to an office rather than to restrict such procedure. Although not controlling, we think it of some significance that the Legislature, in the creation of the method for removal of municipal officers disqualified from holding such offices, whether disqualification arose before or after induction into office, specifically provided by Code, 6-6-7, that proceedings may be presecuted by “any other officer of the municipality”. If “any other officer” may maintain the proceeding in the one case, is there any sound reason for preventing him from doing so in a different proceeding prosecuted for the identical purpose?

Another ground of the demurrer is based on the contention that the informations are fatally defective, for the reason they do not allege that respondents were not freeholders of record in the City of Clarksburg at the time of the institution of these actions, the theory on which the contention is based being that respondents are entitled to hold their respective offices notwithstanding they were not freeholders at the time of their election if they had become such freeholders at the time of the institution of the actions. It may be noticed that the provision of Section 12 of the charter, quoted above, provides that no person shall be “elected” who is not a freeholder. The freeholder requirement has been held to be constitutional. See McMillin v. Neeley, 66 W. Va. 496, 66 S. E. 635; Kahle v. Peters, 64 W. Va. 400, 62 S. E. 691; State ex rel. Thompson v. McAllister, 38 W. Va. 485, 18 S. E. 770. In Daugherty v. Town of Mabscott, 131 W. Va. 500, 48 S. E. 2d 342, this Court held: “2. Under the provisions of Code, 8-3-11, a municipal officer is to be regarded as elected when the returns of the election have been duly canvassed to that effect and the result declared by order of the body authorized by law to do so, and not before.”

In Dryden v. Swinburne, 20 W. Va. 89, the person receiving the majority vote for the office involved was an alien and ineligible to hold the office. The Court, in its ■opinion, stated at page 137: “It follows, therefore, as the plurality of votes in this election were cast for Thomas Swinburne, and he was ineligible, because he was an alien, that the election must be held to be a failure, and the office of clerk of the circuit court of Kanawha declared vacant * *

In the recent case of Slater v. Varney, 136 W. Va., 406, 68 S. E. 2d 757, this Court, after discussing the Dryden and other cases, as related to the question here involved, stated: “* * * Though the constitutional and statutory provisions dealt with in those cases related to the election or the nomination of the contestee, the difference between disqualification to be elected to or nominated for an office and the constitutional disqualification here involved of the contestee to hold an office until he accounts for and pays the public moneys which were collected by him, though apparent, is not controlling so long as the disqualification continues to exist. The election or the appointment of a person to public office is merely the means provided by law by which such person is enabled to obtain and discharge the duties of the office and it is manifest that an election to an office of a person who, by reason of a permanent disqualification or ineligibility, cannot legally hold or occupy the office is not a valid election. This is necessarily so. It would be absurd to say that a person who receives the highest number of votes for an office voted for at an election, but who cannot legally hold or occupy such office is or can be legally elected to the office merely because he received the greatest number of votes. That a valid election to a public office impliedly contemplates and embraces the right to hold the office is indicated by the decision of this court in Dryden v. Swinburne, 20 W. Va. 89 * *

We think the rule deducible from the authorities cited is clearly stated in 67 C. J. S., Officers, Section 26: “Where the legislature has fixed the qualifications for an office pursuant to its authority so to do, the electors may not select one not possessing the qualifications prescribed, and one who is not eligible is not regraded as elected to office, although he may receive the highest number of votes cast and is in possession of a certificate of election, although it has been held that his election is not affected but merely his right to hold the office. One who has been elected to an office, but who is ineligible, cannot recover the office from another.”

It being clear that the freehold requirement of the statute under consideration prohibited the “election” to the offices involved, it was unnecessary for the relators to allege that respondents were not freeholders at any time subsequent to the ascertainment of the results of the election. As to respondents, the election was a nullity.

We have not failed to consider the contention that respondents may have qualified as freeholders between the time of the ascertainment of the results of the election and the time for the taking and subscribing of the oath of office, thereby making themselves qualified to hold the office at the commencement of their respective terms. That right, however, is clearly denied by the statute. It may be, and probably is, true that respondents could have become freeholders before the time for the taking of the oath, but it is just as true that other persons similarly elected probably would not be able to so qualify. One of the purposes of the Legislature in requiring the qualification to exist at the time of “election”, and not at some later time, no doubt, was to prevent abortive elections, as in this very case. The purpose would not necessarily be attained in many cases if the opportunity for qualification was left open after election.

Another contention of respondents, raised by their demurrers, relates to the failure of relators to allege that respondents, at the time of their election, were not honorably discharged veterans of World War II, or that they were such veterans but had been discharged from service more than two years prior to the date of the election. Chapter 120 of the Acts of the 1947 Legislature provides, in effect, that the eligibility of veterans of World War II to hold office in any municipality for two years after honorable discharge from service “shall not be affected or impaired by reason of his not having been assessed with or paid taxes.” The question attempted to be raised can not be considered on demurrer. It is in reality an affirmative defense to be established by respondents. It is nowhere made a condition to the right of relators to prosecute an action upon an information in the nature of quo warranto.

Respondents further contend that the circuit court was without original jurisdiction of these proceedings for the reason that the city council of Clarksburg was vested with exclusive original jurisdiction to judge of the qualifications and eligibility of its own members. They rely on cases like Evans v. Charles, 133 W. Va. 463, 56 S. E. 2d 880; Price v. Fitzpatrick, 85 W. Va. 76, 100 S. E. 872; Martin v. White, 74 W. Va. 628, 82 S. E. 505; State ex rel. Thompson v. McAllister, 38 W. Va. 485, 18 S. E. 770. In the Evans case it was held that “The jurisdiction of the common council of a municipality * * * to hear and decide a contested election involving the selection of municipal officers is original and exclusive”, and that “A court of equity does not have inherent jurisdiction of a suit to determine the legality of an election involving the selection of officers of a municipality”. In. the Price case a contest of an election was determined by action of a tribunal attempted to be created by the old city council. The procedure was removed to the circuit court upon certiorari, where it was tried de novo. This Court held that the new council was the proper forum to try the contest. Therefore, the action of the old council being void, the circuit court was without jurisdiction upon, certiorari. In the Martin case plaintiffs attempted to have action of a city council reviewed by the circuit court upon mandamus. This Court stated that “Mandamus will not be allowed to usurp the function of appellate process. It can never be employed in the absence of statute for the correction of errors of inferior tribunals acting judicially”. In the McAllister case the holding is: “2. Certiorari and not mandamus, is the proper remedy to review the proceedings of a municipal council, under section 23 of chapter 47 of the Code.” Nothing in either of these cases, it appears to us, tends to support the position of respondents. Nowhere is it indicated that circuit courts can not exercise original jurisdiction of proceedings upon informations in the nature of quo warranto. The statutes seem to make any extended consideration of the question unnecessary. Code, 53-2-2, specifically requires that a petition in quo warranto be presented “to the circuit court, or the judge thereof in vacation”. The section governing a proceeding upon information in the nature of quo warranto, Code, 53-2-4, requires that the information be presented “to any such court or judge thereof in vacation as is mentioned in the second section of this árticle * * *”.

What has been said, we think, sufficiently answers other . questions raised by the demurrers of respondents, and requires that the judgment of the Circuit Court of Harrison County, in each proceeding, be reversed, and the proceedings remanded to that court.

Judgments reversed; proceedings remanded.