15 W. Va. 311 | W. Va. | 1879
delivered the opinion of the Court:
It was contended in argument, that this Court has no jurisdiction to review the judgment of the circuit court rendered in this causq. That question»was settled by this Court at the last special term, in the contested- election case of Dryden v. Swinburn, where it was held that “the judgment of a county-court may be brought up for review to the circuit court, in a proper case, by writ of certiorari, but under our statutes the proper mode of bringing up any judgment or order of a circuit court, in controversy between parties, for review by the Supreme Court of Appeals, when such judgment or order is not in a chancery proceeding, is by writ of error.” The subject was so elaborately considered by Judge Green in delivering the opinion in that case, that it renders it unnecessary to discuss t-lie question farther than to refer to that case.
The plaintiff in error insists that the circuit court erred in quashing the notice of contest.
Section 30 of ch. 118, Acts 1872-3, declares: “In all contested cases the county-court shall be the judge of the election, qualification and returns of its own members, and of all county and district officers. Any person intending to contest the election of any officer enumerated above, shall within ten days after the result of such election is declared, give him notice in writing and a list of the votes he will dispute, with his objection to each, and of the votes rejected for which he will contend. If the contestant object to the legality of the election, or the qualification of the persons returned, the notice shall set forth the facts on which such objection is founded, &c.”
In the case of Dryden v. Swinburn, this court substantially held, that, where the ground of the contest was only the want of qualification to hold the office by the party returned as elected, it is sufficient that the notice should show that the person giving the notice was a candidate for the office at the election, and set forth the facts on which he based his objections to his opponent
Waiving any question about the manner in which the facts are set forth in this notice, or as to the precision with which they are stated, we will 'en-quire whether they are within themselves, if true, sufficient either to vacate the election, or to render it the duty of the court to declare the contestant as duly elected. The only facts stated in the notice to show that the defendant in error was ineligible to hold the office to which he had been elected on the second Tuesday of October, 1878, were “that he had held said office and discharged its duties as sheriff for an entire full term of four years ending December 31, 1876, at which time the present full term began.” The notice showing that the election contested was held on the second Tuesday of October, 1878, this court will take judicial notice of the fact, that this was not the election to fill the full term next succeeding the full term which ended December 31, 1876, but must have been an election to fill a vacancy of about the last half of said full term. The first clause of article IX, §3, Constitution, ordains that: • “The same person shall not be elected sheriff for two consecutive full terms.” This is the provision of the Constitution that the contestant insists rendered the defendant in error ineligible to the office at the election in October, 1878, to fill the vacancy. It is inferred from'the argument of the contestant’s counsel by the stress he seems to put upon the word “for” that he interprets that word as meaning, or equivalent to, “during”, and interprets this clause of the Constitution as rendering the sheriff ineligible to re-election to the office during the period of four years next succeeding the termination of a full term of the office to which he had been elected. Had such been the intention of the framers of the Constitution, they Would have used
The construction sought to be put upon the 3d section of Article IX, by the learned counsel for plaintiff in error, destroys all force intended to be given to the emphatic words “consecutive” and “full.” The defendant in error has not been elected to two “consecutive” terms, a period of two years having elapsed since the. termination of his full term before his second election; neither has he, in the language of the Constitution been elected now for a “full” term, but only to fill a vacancy of the last half of a term, the first half having been filled by others. The apparent object of the provision was to prevent the sheriff from holding the office continuously, by compelling him to go out of office at the end of a full term, the probable object of which was to prevent him from prostituting the office for the purposes of a re-election. The facts as stated in the notice therefore, do not, in my judgment, either in the letter or spirit of the Constitution, present a case of disqualification to holding the office; on the contrary the facts as alleged in the notice, show that Bier was qualified to hold the office by being elected to fill a vacancy occur-ing two years after he had ceased to be sheriff for a full term.
The only other facts stated in the notice, are that in the year 1876, Bier induced certain persons to vote for R. T. Parker, then a candidate for the office of sheriff, by representing to them that said Parker if elected would not qualify, and he, Bier, would continue to hold the office after the expiration of his full term; and Parker having in fact failed after his election to qualify, it became necessary to fill said vacancy by the election held in October 1878. There is no allegation in the notice that Bier held over in office until October, 1878, the
Therefore the judgment of the circuit courtofNovember 28, 1878, must be affirmed and the defendant in error, Bier, must recover from the plaintiff in error, Gorrell, his costs in this Court expended.
Judgment Appirmed.