CHARLESTON.

#### H. K. Cantrell *v.*Board of Education of Lee District *et als.*

(No. 6361)

Submitted May 7, 1929.

Decided May 14, 1929.

*E. A. Hansbarger,*for plaintiff in error.

*James Damron,*for defendant in error.

Maxwell, Judge:

Tbe plaintiff in error (relator) prosecutes tbis writ of error to an order of tbe circuit court of Mingo county refusing a *363peremptory writ of mandamus against tbe Board of Education of Lee District of said county, J. A. Maynard, President of said Board, Noah Stepp and E. T. Thompson, Commissioners, respondents.

On the 4th day of February, 1927, the Board of Education of Lee District, then composed of James A. Farley, W. A. Meyers and E. T. Thompson, employed relator for a term of twelve months beginning the first of July, 1927, as assistant supervisor of the Lee District public schools. Farley and Meyers were succeeded by Maynard and Stepp on the first day of July, 1927. Immediately following said date, the mat.ter of the employment of relator was given attention by the Board, and the same was continued from time to time until the 9th day of August, 1927, on which date, the Board en-, tered an order discontinuing both the offices of district supervisor of schools and assistant supervisor for said district, and dispensed with the services of both T. J. Perry, district supervisor, and relator as assistant supervisor. Relator then instituted this proceeding, and in his petition prayed that the respondents be commanded and required to recognize the employment of relator as assistant supervisor, and to turn over and deliver to him the papers, orders, and other effects rightly belonging to such office; to issue forthwith to relator an order or warrant in payment of all salary due relator by reason of his said office; and to lay a levy and tax upon the taxable property within the limits of said district to pay off and discharge the salary of relator as such assistant supervisor of schools. An alternative writ was awarded. A return was made in due time, and testimony was taken by both the relator and the respondents.' Following a hearing on pleadings and proof the circuit court, on the 21st day of December, 1927, denied the peremptory writ sought by the relator and awarded costs against him. On the 13th day of August, 1928, upon application to one of the Judges of this Court, in vacation, this writ of error was awarded.

On behalf of relator it is said: “True, the term of office for which he was employed has long been at end, and the plaintiff would not now be entitled to the delivery of the papers and other effects and paraphernalia of the office, yet, *364under tbis prayer, and under tbe prayer of tbe petition filed before tbis Honorable Court, asking tbat tbe Board of Education be required to recognize tbe employment of plaintiff as assistant supervisor of public schools, under and by reason of bis said contract, tbis, now, is what tbe plaintiff asks tbe court to do.” Tbe law does not sustain tbis position.

“Mandamus is very generally described as an extraordinary remedy in tbe sense tbat it can be used only in cases of necessity where the' usual forms of procedure are powerless to afford relief; where there is no other clear, adequate, effi-cinct and speedy remedy.” 38 C. J., page 544. In tbis.ease it is plain tbat by reason of tbe expiration of tbe year for which relator claims tbat be was employed as assistant supervisor, there remains only his claim for salary for tbe said period. He has full opportunity to test tbat claim in an action of assumpsit. Such remedy is full and complete, and tbe relator is not entitled to prosecute tbis proceeding as a preliminary to such action. “Tbe rule tbat title must first be established by direct proceedings does not apply when there is no *de facto*incumbent of tbe office.” 46 C. J., 1028. Tbe question of bis right to enter upon tbe discharge of tbe duties of tbe office has become moot. It would be a vain and useless thing for tbis Court to undertake to adjudicate tbat subject now. Tbis proceeding involves tbe assertion of a mere abstract right. Mandamus may not be so employed. Tbis principle has often been declared and employed by tbis Court.

“Tbe extraordinary writ of mandamus will never be issued in any case where it is unnecessary, or where, if used, it would prove unavailing, fruitless and nugatory.' Tbe court will not compel tbe doing of a vain thing. A mere abstract right, unattended by any substantial benefit to tbe party asking mandamus, will not be enforced by tbe writ.” *Hall*v. *Staunton,*55 W. Va. 684. Subsequent cases are.in accord: *Hawkins*v. *Bare Carter,*63 *W.*Va. 431; *Ice*v. *Board of Canvassers,*64 W. Va. 544; *Bank*v. *Dunkle,*65 W. Va. 210; *State ex rel. Ryan*v. *Miller,*82 W. Va. 490; *Johnson*v. *Board of Canvassers,*102 W. Va. 703.

*365“The matter involved must be substantial and of sufficient importance to justify the use of mandamus in cases where it would otherwise issue. "Where the right sought to be enforced is or has become a mere abstract right, the enforcement of which by reason of some change of circumstances since the commencement of the suit can be of no substantial or practical benefit to the petitioner, the writ will not be awarded, although otherwise the applicant would be entitled to the writ. Mandamus proceedings are not available for the purpose of obtaining a decision on mere moot questions.” 38 C. J., page 587.

The judgment of the circuit court is affirmed.

*Affirmed.*