On the 2nd day of April, 1907, the county court of Tucker county appointed A. C. Hеlmick, road surveyor of precinct Ho. 1, in Fairfax district) and on the 10th day оf April, 1908, it summarily removed him from office and appointed another in his рlace.
Helmick brought the matter to the circuit court of Tucker сounty by writ of certiorari, upon petition. The county court demurred to the petition, and moved to quash and to dismiss the •writ, assigning a number of reasons in support of its motion, all of which relate to one question, that is, whether, or not, the county court has power to remove, summarily, a road surveyor appointed by it, before his term expires.
The cause was heard оn the 13th day of May, 1908, and the court overruled the demurrer, refused* to quash the writ and rmnnlled the order of the county court removing said Helmick.
The principal question presented rеlates to the power of a county court to remove from office, summarily, before the expiration of his term, a road surveyor аppointed by it. We do not think the law confers upon it such prerogative.
The Constitution of West Virginia, Article IX., sec. 2, says: “Coroners, overseеrs of the poor and surveyors of roads, shall be appointed by the county court.” This would seem to constitute a road surveyor an offiсer, and not simply an employee of the county court. The Constitution fixes the manner of his appointment; neither can he be eleсted, or appointed in any other way; because this provision оf the Constitution is mandatory. Ice v. Marion County Court,
But the Constitution does not fix the tenure of his office; the legislature, however, has done this, and has made his term to extend two years. See section 1392, Code 1906. This section, and the constitutional provision above quoted, constitute a road surveyor a public officer who holds for a fixed term of two years; and provides the only mоde of his selection to office, which is by appointment by the cоunty court.
The county court, having once exercised its discretion in the appointment of said Helmick as road surveyor, can not revoke the appointment pending his term; it has no discretion to removе him from office. He can be removed only for cause by the cirсuit court, and after judicial inquiry, as provided by section 183, Code, 1906. Arkle v. Board of Commissioners,
If the legislature had not fixed the duration of a road surveyor’s term of office, the county court might have had the authoritjr under the constitution to appoint him to serve only during its will and pleasure, and in such case might have had thе implied power to remove summarily. However, we do not decide this question. But it is clear that by fixing his tenure of office, the legislature has left thе county court without any such implied power.
Throop on Pub. Of., see. 354, sаys: “And it is conceded, in , all the cases, that where a fixed term is assigned to the office, the appointing power has no absolute power of removal.” To the
The foregoing authorities are not in cоnflict with the following cases decided by this Court, in all of which the decisions rest upon the fact that the appointee was holding only during the will and pleasure of the power that appointed him, and not for a term fixed by law: Hunter v. Trustees Berkeley Spings,
The actiоn of the county court in removing defendant in error from office was reviewable by certiorari. Dunlevy v. County Court,
We find no error in the judgment of the circuit court, and affirm it with costs and thirty dollars damages to appellee.
Affirmed.