State ex rel. Thompson v. McAllister

Dent, Judoe :

The following is the statement of facts taken from the brief of the counsel for the defendants in error, to wit:

“On the 5th day of January, in the year 1893, at an election in the town of Hurricane, Putnam couuty, W. Va., a town incorporated under chapter 47 of the Code, for municipal officers of said town, Joint M. Thompson and C. A. Smith, residents of said town, and entitled to vote for members of its common council, together with G. W. Dudding, J. P. Myues, and M. L. Dunfee, were elected to office of council men of said town for the year commencing on the 1st day of February, 1893 ; the number of couucilmen for said town being five, the town not being laid off" into wards.

“On the 16th day of January, 1893, at a meeting of the outgoing council, the returns of said election were canvassed, and it was declared that the above five persons received the largest number of votes at said election for the office of councilmen of said town ; and said council, at this meeting, further decided, among other things, that said Thompson and Smith were not duly elected officers of said town, because thev were not freeholders therein, and *487 further declared that "W. L. Losee and W. S. Turley, two members of the old council, but not elected to the new council, should hold over as eouncilmen until their successors were qualified — the said Smith, at that time, and at the time of said election, being in possession of a lot of land in said towir, which he owned by a title-bond, and said Thompson’s wife, at said dates, owning in fee land in said town. On the 17th day of January, 1893, the said Smith and J. M. Thompson each bought land in said town, which was conveyed to them, respectively, by deeds dated, respectively, on the 17th and 18th of January, 1893.

“On the 20th day of January, 1893, thcjsaid Thompson and Smith each duly took the oath of .office as councilmcn of said town, and duly filed the same with the recorder, or acting recorder. At the first meeting.of the new council, said Turley and Losee being present and acting, on the 6th day of February, 1893, the said Thompson and Smith presented themselves, and demanded that they be admitted to the office of eouneihnen, and permitted to perform their duties as such, but they were refused and deuied admittance to their office. On the 11th day of February, 1893, the said Smith and Thompson obtained from the judge of the Circuit Court of Putnam county a mandamus nisi to ¥m. II. McAllister, mayor; R. V. Dorsey, claiming to be and acting as recorder; G. \V. Dudding, J. IL Mynes, and M. L. Dunfee, eouncilmen; and W. L. Losse and W. S. Turley, claiming tobe and acting as eouncilmen ofsaidtown — commanding the first five to admit said Thompson and Smith into the office of eouncilmen of said town, and commanding said Losee and Turley to surrender and turn over to said Thompson and Smith the office of councilmcn of said town. The defendants Dudding and Mynes made return to said mandamus nid that they were willing, and had always been, to admit said plaintiffs to the office of councilmen, and had made and seconded a motion to admit them, but that the majority, including said Losee and Turley, had voted against the motion. The defendants McAllister, Dorsey, Dunfee, Losee, and Turley moved to quash the writ of mandamus inti, which motion the Court overruled; and, the said defendants not desiring to make return to said writ, *488 the court gave judgment for a peremptory writ of mandamus to issue, from wliicb judgment the last five of defendants have obtained this writ of error and supersedeas.”

Appellants assign three grounds of error in theirpetition for writ of error, viz : First, it was error in the Circuit Court to hold the statute, which requires- councilmen to be freeholders, unconstitutional; second, the Circuit Court should have sustained the motion to quash tlie alternative writ of mandamus because, among other defects upon the face thereof, the plaintiffs claiming sevefal rights could not obtain a joint writ of mandamus; third, said motion to quash should also have been sustained because the alternative writ of mandamus failed to make a case for the plaintiffs, or either of them, to obtain the relief prayed for.

In my opinion there tire only two questions suggested by the facts in this ca.se ns proper, at the present time, for the consideration of this Court: (1) Is the law containing the free-hohl requirement constitutional V (2) Tf so, have the, relators miistaken their remedy ¡is to all other questions raised by them?

1. In determining this constitutional question, we find the rule plainly laid down in the case of State v. Dent, 25 W. Va. 19, in these words, to wit: “Article 6, § 1, of our constitution provides : ‘The legislative power shall be vested in a senate and a house of delegates.’ This obviously confers on them all legislative power, except such as they are prohibited by the constitution in other provisions from exercising.” And the person claiming that au act of the legislature is an infringement of the restrictions of the constitution must point out the provision plainly forbidding, either by express words or by inevitable implication, the passage of such act; and, if none such exists, the act, however unjust or unreasonable it may seem, is valid, and must be sustained by this Court. Judge Cooley, as’ quoted approvingly in the above case, lays down the rule that “any legislative act which does not encroach upon the powers apportioned to other departments of the government, being prima, facie valid, must be enforced unless restrictions upon the legislative authority can be pointed out in the constituítion, and the case shown to come within them.”

*489 The defendants in error recognizing tire binding force of this rule point out three sections of the constitution, all and each of which, they claim, are violated by the act in question :

First. Section 4, art. IV, which provides that “No person except a citizen entitled to vote shall be elected or appointed to any office, state, county or municipal.” Defendants in error agree that because this section forbids any persons except qualified electors to hold office; by just implication, the converse of the proposition is also included in the meaning of the section; that is to say, that all electors are duly qualified to hold office. Such reasoning is very fallacious. This provision was simply intended to limit the number from whom the various officers of this state might be chosen to those having a voice in the selection of such officers, and m>t in any sense intended to determine the qualifications necessary to properly discharge the duties of any office. For the electors to say in the constitution adopted by them that “no one but ourselves shall ever be elected or appointed to any office in this .state” does not, by implication, say to the legislature, further, “You shall pass no law that will prevent any of us from holding office,” for such an important matter as this would not be left to implication, if the electors had considered such a provision desirable.

While we have no decision in this state touching this question, the highest tribunals of other states have construed similar provisions in their state constitutions as above indicated. In the case of Darrow v People, 8 Col. 420 (8 Pac. 661) the Supreme Court of that state, in passing on the same question here raised, says: “Counsel argue that-section 6, art. VII, of the constitution provides that ‘no person except a qualified elector shall be elected to any civil or military office in the state,’ by implication, inhibits the legislature from adding the property qualification under consideration. There is nothing in the constitution which expressly designates the qualifications of councilmon in a city or town, and this section contains the only language that can possibly be construed as applicable thereto. But it will be observed that the language used is negative in *490 form; that it simply prohibits tlie election or appointment to office of one not a qualifier! elector. There is no conflict between it and the statute. By providing that a supervisor or an alderman shall be a taxpayer, the legislature does not declare that he need not be an elector. Nor is the provision at all unreasonable. On the contrary, it is a safeguard of the highest importance to property owners within the corporation. The right to vote and the right to hold office must not bo confused. Citizenship and the requisite sex, age and residence, constitute the individual a legal voter, but other qualifications are absolutely essential to the efficient performance of the duties connected with almost every office; and certainly no doubtful implication should be favored, for the purpose of denying the right to demand such additional qualifications as the nature of the partial-. lar office may reasonably require. We do not believe that the framers of tlie constitution, by this provision, intended to say that the right to vote should be the sole and exclusive test of eligibility to all civil offices, except as otherwise provided in the instrument itself; that no additional qualifications should ever be demanded, and no other disqualifi-' cations should be imposed. If, as has been well said, they ‘had intended to take away from the legislature the power to name disqualifications for office, other than the one named in the constitution, it would not have been left to the very doubtful implication which is claimed from the provision under consideration.’ State v. Covington, 29 Ohio St. 102.” In the latter decision the court laid down thp law in a syllabus as follows, to wit: “The provision in the constitution (section 4, art. 15) that no person shall be elected or appointed to. any office in this state unless he possesses the qualifications of an elector does not by implication forbid the legislature to -require other reasonable qualifications for office.”

Second. The next claim of the counsel is that the latter clause of section 5, art. IV, is violated, which is in these words: “And no other oath, declaration, or test shall be required as a qualification unless herein otherwise provided;” his argument being that the freehold requirement is a test, within the meaning of the constitution. 1 The asser *491 tion is so unfounded, as to liardly need refutation. This clause is simply an application of section 11, art. Ill, to the case of officeholders, which is in these words; “Sec. 11, Political tests, requiring persons as a pre-requisite to the enjoyment of their civil and political rights, to purge themselves by their own oaths of past alleged offences, are repugnant to the principles of free government and are cruel and oppressive. No religious or political test oath shall be required as a pre-requisite or qualification to vote, serve as a juror, sue, plead, appeal or pursue any profession or employment. Nor shall any person be deprived by law, of any right, or privilege, because of any act done prior to the passage of such law.”

As will be seen at a glance, nothing is said about holding office, in this section, but it is made to apply alone to the right “to vote, serve as a juror, sue, plead, appeal or pursue any profession or employment.” To remedy the omission here, the constitution makers added the clause to section ,5, art. IV, which refers alone to religious and political tests as a pre-requisite or qualification for office, and has nothing whatever to do with any just qualification that the legislature may deem necessary to a proper discharge of the functions of the office.

In the case of Rogers v. Common Council, 123 N. Y. 173 (25 N. E. Rep. 274) the court of appeals construing the same provisions in New York constitution, says : “Still another ground of invalidity is alleged by the appellant. He says that the statute conflicts with article 12, which provides for the taking of an oath of otLice by members of the legislature and all officers, executive and judicial, before they enter on the duties of their respective offices, which oath is therein set forth ; and it is there stated that ‘no other oath, declaration or test shall be required as a qualification for any for office of public, trust.’ The statute by which an applicant appointment to a position in a public office is made to show his fitness therefor is claimed to constitute an illegal test, within the meaning of this section. * * *

“We do not think that the provision above cited was over intended to have any such broad construction. Looking at it as a matter of common sense, we are quite sure *492 tbattbo framers of our organic law never intended to oppose a constitutional barrier to the right of the people,, through their legislature, to enact laws which should have for their sole object the possession of fit and proper qualifications for the performance of the duties of a public office on the part of him who desired to bo appointed to such office. So long as the means adopted to accomplish such end are appropriate therefor, they must be within the legislative power. The idea can not bo entertained for one moment that any intelligent people would ever consent to so bind themselves with constitutional restrictions on the power of their own representatives as to prevent the adoption of any means by which to secure, if possible, honest and intelligent service in public office. No law involving any test other than fitness and ability to discharge the duties of the office could be legally enacted under cover of a purpose to ascertain or prescribe such fitness.

“Statutes looking only to the purpose of ascertaining whether candidates for an appointive office are possessed of those qualifications which are necessary for a fit and intelligent discharge of the duties pertaining to such office are not dangerous in their nature-, and in their execution they are not liable to abuse, in any manner involving tlio liberties of the people * * * En this case, we simply hold that the imposing of .a test, by means of which to secure the qualifications of a candidate for an appointive office, of a nature to enable him to properly and intelligently perform the duties of such office, violates no provision of the constitution.”

The same reasoning would hold good in an elective office, so far as the section under discussion is concerned.

Third. The last claim of the counsel is that the provision complained of is in violation of section 8, art. IV of the constitution, in which the legislature is empowered to “prescribe by general laws the terms of office, powers, duties and compensation of all public officers and agents, and the manner in which they shall be elected, appointed and removed.” This section includes all municipal officers, and was only intended to require the legislature to enact gen- *493 oral, and not special, laws in relation to the matters included in the section. .But the counsel argue that “by granting the- legislature the authority to establish offices, and provide the term of office, powers, duties, compensation and manner of election and removal, the power -to add a qualification, not being given, is excluded by implication.” The learned counsel appear to forget the difference so often defined between the federal and state constitutions; the former being strictly a grant of powers, while the latter is a limitation or restriction on the powers of the state legislature, which otherwise would be supreme in all legislative matters, as it is now in all cases wherein not restricted by the constitution — that instrument itself so declaring, as heretofore mentioned. And for the very reason that the power to prescribe qualifications is not mentioned in this section, the legislature has unrestricted control of that power. And it has been held by the court of appeals of another state that the same kind of provision gave the legislature entire control over all such officers ; that the power to prescribe the manner in which they shall be elected and appointed included within it, necessarily, the power to prescribe civil-service examinations, or to,prescribe that they should be chosen from a class of citizens who possess some qualifications that specially, fit them for office or render them efficient officers.

In the case of People v. Clute, 50 N. Y. 459, the court of appeals, construing this same provision, says : “There is no right bestowed by the constitution upon the elector to choose by vote to that office. But there is a gift from the legislature to the elector so to do, or rather a power thereby intrusted to him by the statute, which may be taken back again. Now, the authority which confers a power, and may take it away, may, in bestowing it, limit and restrict its exercise, as it sees fit, so far as it is not specially prohibited therefrom, and may, within that limit, say for how long, in what manner, and upon what objects it shall be exerted. Certainly, if the legislature may say to the voter, ‘You shall not vote for any oue for this office, but it shall be appointive,5 it may say, ‘You shall not vote for any one for this office wdio is not free from this disqualification *494 which we now declare.’ The legislature may not put upon any elector a personal restriction from voting for any officer who may be elective, or whom it may declare elective, save such restriction as is imposed by the constitution, for from that it is especially prohibited. But it may, in the exercise of its judgment, for the public good, limit the uum-ber from whom the elector may select, for thus to legislate is within the general, and sovereign power of legislation, which it constitutionally posesses.” And in the syllabus the court lays down the law as'follows, to wit: “Where the power is reserved to the legislature to direct the method of filling an office, whether by election or appointment, it may, in its discretion, when conferring upon the elector the, power to elect, limit the number from whom he may select.”

In this case the freehold requirement is not, technically speaking, a qualification, but it is a limitation by the legislature in conferring the right to vote, as to the number from whom the elector may select. It is the same as if the legislature had provided that the officers of the municipality must be chosen from among the freeholders thereof, the same as grand jurors are selected. This is not class legislation, because it is in the power of any one to become a freeholder, the same as it is in the power of any one to educate himself under civil-service rules. But it is clearly within the power of the legislature, even if, as the counsel claim, “there is no good reason for such law.” Kxperience in municipal matters, and a wise consideration of the question will convince any unbiased mind that such a law has under it the very best of reasons

The fact that a man owns real estate has little bearing on the question as to whether he is capable of filling an office, but the real-estate owners are the substantial people of any communty — its bone and its sinew — and there are hut few among them that do not have some property pride, and an interest in the welfare and prosperity of their permanent dwelling ¡dace. On the other hand, among those not owning real estate belong the floating population— those who are too trifling and unthrifty to want property, and those who, having wasted their substance in riotous *495 living, and spent their days in idleness are jealous of their neighbors’ prosperity, and are ready to tear down, destroy, and scatter broadcast, the results of hard earnings, frugal management, and careful savings. To them, although electors, the prosperity and welfare of the municipality amouut to nothing, for like the Bedouins of the plains, ‘neath the shadows of night they can fold their tents, and silently steal away, while, if there are any among the unfortunate but deserving poor who would make capable officers, their more successful neighbors are ever ready and willing to lend a helping hand, and see that they own the necessary “ten feet of ground.” Ft was no trouble for the relators to become freeholders, when they found a necessity for so doing.

A municipal corporation is the legislative grant of local self-government to the inhabitants within a certain designated territory, which is known as the “city,” “town,” or “village,” and corporate powers granted are exercised by its inhabitants in its corporate name. The freeholders of such municipality own every foot thereof, and the benefits derived therefrom are enjoyed, and the burdens borne, almost entirely by them. The loss or gain of the municipality is their loss or gain. They favor just aud reasonable taxation, because it increases the general welfare, and thereby is beneficial to their private interests. They oppose excessive and injudicious expenditures of public levies, because the waste must fall heaviest on them. They therefore have an interest that makes them efficient and reliable municipal officers. While the office of councilman is the most important office, within its limited jurisdiction, of any in the State — combining, as it does, legislative, judicial, executive, and ministerial powers — there is usually no pay, and but little honor, attached to such office, and the burden and annoyance are exceedingly heavy.

A competent man, who has no sufficient interest in the community to become a freeholder, does not care to give his time, endure the labors, and suffer the annoyance of the office, simply to improve the property of others; and sometimes it is almost impossible to induce competent freeholders to undertake it, however great their interests may *496 be. .By making it exclusive, the office is rendered more important, and it devolves upon the freeholder, as a duty to accept. Under our system of government, all officers are but the servants of the people, and it is but just that the people should have the best service possible; and in endeavoring to secure this, for the public weal, the legislature has wisely incorporated this provision in the general law relating to the incorporation of cities, towns, and villages, and it is now in the special charter of nearly every city and town of over two thousand inhabitants. It is further plain, under our statutory law, the candidate must he a freeholder at the time lie is voted for, because the voter has a right to presume that the candidate is eligible to the office at the time he asks his suffrage; otherwise, the election is void. The election law especially requires that, in nominating candidates for office, they shall be certified to be legally qualified to bold the office for which nominated. But it is not necessary to decide this question at the present time, except as a mere dictum.

The constitutional question being out of the way, the only other question that presents itself is whether mandamus is the proper remedy to review the action of a municipal council in determining, under the law, that a candidate is not legally qualified to hold the office. This entirely depends on the fact as to whether the council, in so determining, was acting within the limits of its authority, or assuming a jurisdiction it did not possess. Manda.nius is not a proper remedy to control the action of a municipal body, when acting within the scope of its legal powers, but only Avlien it refuses to act at all, oris acting without legislative authority. Supervisors v. Minturn, 4 W. Va. 300.

Section 23, c. 47, Code, provides: “All contested elections shall be heard and decided by the council.” This constitutes the council a special tribunal to judge of the election and qualification of its own members. The counsel, in argument, places the question of contest on too narrow grounds, lie -would limit if to the case where two persons are claiming the same office by election. Where there are substantial doubts as to whether a candidate elected to office is eligible or not, any citizen interested, as tax *497 payer or elector, would have tlie right to raise the objection audit would then become the duty of the council, as the only tribunal in which the authority is vested, to promptly hear and determine the matter. This gives a quick and speedy hearing, while the office might expire before a determination was reached, if left to the courts. In the case of a miscarriage of justice before the council, chapter 110, § 2, provides for a review of the decision of the council by means of certiorari; and in case of reversal, and disobedience on the part of the council, which is not at all probable, a way would be found to compel respect to the ordei’s of superior judicial tribunals.

The judgment of the Circuit Court is reversed, the mandamus nisi is quashed, and these proceedings are dismissed, at the costs of the relators.