136 W. Va. 406 | W. Va. | 1951
Lead Opinion
The contestant, Clifford Slater, instituted this election contest against Riley Varney, the contestee, in the County Court of Mingo County within ten days after the county court, acting as the canvassing board to canvass the votes and to declare the results of the general election held in •that county on November 7, 1950, had declared the result of the election and that, upon the face of the election returns, Varney had been duly elected to the office of clerk of the Circuit Court of Mingo County for the regular term of six years from January 1, 1951.
Two written notices substantially similar in form and substance were given by the contestant to the contestee. One dated November 16, 1950, was served upon the con-testee on November 20, 1950, and service of the other, dated November 20, 1950, was accepted in writing by the contestee on November 21, 1950, on which day one of such notices was presented to and filed by the county court by order then entered of record, and the matters arising upon the notice were set for hearing at the next regular term of the court.
The notices given by the contestant disclose that he institutes this proceeding as nominee and candidate of the Republican Party against the contestee as nominee and
The notices charge, as the single ground upon which
In answer to the foregoing notices of the contestant, the contestee gave a written notice to the contestant dated November 25, 1950, served upon the contestant on November 27, 1950, in which the contestee denies the material allegations in the notices given by the contestant, protests the qualification of the contestant to hold the office of clerk of the Circuit Court of Mingo County for the reason that he had not been elected to that office as disclosed by the official declaration of the results of the election held November 7, 1950, and challenges the legal sufficiency of the notices given by the contestant. The grounds of demurrer set forth in the notice of the contestee are: (1) the contestant is not an interested party, has no rights to the office involved, and can not maintain this proceeding; (2) the County Court of Mingo County is without jurisdiction to hear and determine this proceeding; (3) the contestant has invoked the wrong remedy; and (4) no grounds exist on which to base an election contest and, for that reason, this proceeding is prematurely instituted.
On January 2, 1951, the first day of the next regular term of the county court following the general election held on November 7, 1950, the notices given by the contestant and the contestee were presented to the court and the proceeding was docketed and set for hearing on February 6, 1951. a later day of the same term of the court. In an original proceeding in mandamus entitled State of West Virginia ex rel. Slater v. The County Court
By his assignments of error the contestee seeks reversal of the judgment of the circuit court upon substantially these grounds: (1) the contestant, not having received the highest number of votes cast for the office of circuit clerk, is not entitled to hold that office, has no interest in such office and, in consequence, can not maintain- this proceeding; (2) the contestant has invoked the wrong remedy because the alleged disqualification or ineligibility of the contestee to hold the office of clerk of the circuit court can not be determined by the county court in this proceeding; and (3) this proceeding has been prematurely instituted because the alleged disqualification or ineligibility of. the contestee is removable and may be removed by him after the institution of this proceeding.
To resolve the first contention of the contestee the pertinent provisions of the statute which relate to an election contest involving an office to be filled by the voters of a county must be considered. Section 1, Article 9, Chapter 3 of the Code of 1931, based upon Article VIII, Section 24, of the Constitution of this State which confers jurisdic-
The above quoted provisions of Section 2 in substantially their present form have been in force and effect in this State for more than seventy one. years and since they were enacted on April 11, 1873, by Section 30, Chapter-118, Acts of the Legislature of 1872-73, and have been considered by this -Court in prior cases. In Dryden v. Swinburn, 15 W. Va. 234, an election contest decided by this Court in 1879, the contestant Dryden, a candidate' for the office of clerk of the Circuit Court of Kanawha County, who upon the face of the election returns had been defeated by the opposing candidate Swinburn, contested the election of his opponent Swinburn upon the ground that at the time of the election he was not entitled to vote in this State and that he was for that reason disqualified to hold the office of clerk of the circuit court. The alleged disqualification of the contestee to hold the office was the sole ground on which the contestant sought to maintain the contest. In opposing the right of the contestant to maintain the proceeding, the contestee contended that the notice of contest was insufficient because it failed to show that the contestant was entitled to the office. In rejecting this contention this Court held in point one of-the syllabus: “The notice was sufficient, it not being necessary, when the ground of the contest was only the want of qualification to hold the office by the party returned as elected, to furnish with it a list of votes to be disputed, nor to state facts showing that the person giving the notice was entitled to the office. It is sufficient that the notice should show he was a candidate for the office at the election, and set forth the facts on which he based his objections to his opponent holding the office.”' In the opinion in that case, delivered by Judge Green,, this Court said:
“The notice in this case shows on its face that John Dryden, who signed it, was a contestant for this office,
“He says that unless he shows facts which entitle him to the office, he does not show any ground for instituting this proceeding, as -it is intended to redress only a private wrong in depriving him of an office to which he is entitled. But obviously the purposes of this act are misunderstood; for if he can base this notice, as the statute says he may, on the illegality of the election, this very ground shows that he is not and can not be entitled to the office. But though the contestant neither objects to the admission of illegal votes, the rejection of legal votes nor
In addition to the foregoing quotation, the opinion contains these statements: “It is said by appellant’s counsel that a writ quo warranto is the only mode by which the public can oust a usurper from office; and that this statute only provides the manner in which a person, who is entitled to the office, may claim his right; and that as he in this proceeding is suing for the office, he must show a complete right to it in himself as in ejectment; and that it cannot be that any voter can institute this proceeding, as the statute shows it must be instituted by a candidate for the office, a contestant, and from this the inference is drawn that the party instituting this proceeding must in his notice allege facts that show, if true, that he is entitled to the office. The falsity of this position is shown by the absurdity to which it leads. For as the statute permits the contestant to allege the illegality of the election as the ground of the controversy, and in such case requires that the facts, which show the election to have been illegally held, shall be stated in the notice, it is obvious that so far from it being required- to state facts showing that the contestant is entitled to the office, it may show facts that show it is impossible for him or any one else to be entitled to the office under this election. All that can possibly be required is that the party giving the notice should be a candidate for the office. I do not say that this is necessary, but it may be, and if so, this notice complies with this requisite as it says: ‘that he will claim to be himself, duly and legally elected to said office at said election.’ ”
The holding of this Court in the Dryden case, that in an election contest when the sole ground of contest is the disqualification of the party returned as elected to hold the office the contestant is not required to show that he is entitled to the office, has not been departed from, but has been adhered to and approved by this Court in sub
By the language of Section 2, Article 9, Chapter 3, Code, 1931, which expressly provides that the contestant in an election contest máy object to the qualification of the person returned as elected, and under the authority of the above cited cases, it is clear that the contestant Slater is entitled to institute this proceeding upon the ground that the contestee is disqualified to hold the office of clerk of the Circuit Court of Mingo County and that the contestant is not required to show that he is entitled to hold that office.
In as much as the contestee cites and relies upon the case of State ex rel. Depue v. Matthews, 44 W. Va. 372, 29 S. E. 994, to support his contention that the contestant can not maintain this proceeding because he has no interest in or is not entitled to the office of clerk of the circuit court, it is pertinent to observe that there is a well established difference between an election contest based upon the illegality of the election or the qualification of the person returned as elected, in which, in either instance, the contestant is not required to show that he is entitled to the office, and a quo warranto proceeding, or a proceeding upon an information in the nature of a writ of quo warranto, to determine the right of a person to
The assignment of error by the contestee that the contestant has invoked the wrong remedy because the alleged disqualification of the contestee to hold the office of clerk of the circuit court can not be determined by the county court in an election contest is not well founded. As already pointed out, in disposing of the first assignment of error presented by the contestee, the provision of Section 2, Article 9, Chapter 3, Code, 1931, that if the contestant object to the legality of the election, or the qualification, of the person returned as elected, the notice, shall set forth the facts upon which such objection is founded, unquestionably makes the qualification of the
The contestee vigorously asserts that the alleged disqualification of the contestee involved in Dryden v. Swinburn, 15 W. Va. 234, Gorrell v. Bier, 15 W. Va. 311, Dryden v. Swinburne, 20 W.Va. 89, Orndorff v. Potter, 125 W. Va. 785, 25 S. E. 2d 911, and Irons v. Fry, 129 W. Va. 284, 40
In support of the contention of the contestee that an election contest is not the proper proceeding or remedy to challenge his election as shown by the election returns because of his disqualification, under Article VI, Section 14, of the Constitution, to hold the office of clerk of the circuit court, the contestee argues that instead of this proceeding, quo warranto, an information in the nature of a writ of quo warranto, and a proceeding under the provisions of Section 7, Article 6, Chapter 6, Code, 1931, are the only proper methods to determine the right of the contestee, Varney, to hold the office to which, according to the election returns, he was elected by a large majority of the votes. This argument is wholly untenable. It
It should be emphasized that Section 2, Article 9, Chapter 3, Code, 1931, the statute upon which this proceeding is based, which expressly provides that the contestant may “object to * * * the qualification of the person returned as elected” to a county office, does not specify or limit the character of the qualification to which objection may be made or restrict the qualification of the candidate returned as elected to his eligibility or his qualification to be elected. The term is used without limitation or restriction and in its broad and comprehensive sense. The language of the statute plainly and necessarily implies that, whether the candidate returned as elected is ineligible or disqualified to be elected or to hold the office voted for, or whether his ineligibility or disqualification is permanent, or temporary and removable by action on
It follows that the notices filed by the contestant are good on demurrer and motion to quash and that the demurrer of the contestee should have been overruled by the county court. In view of that' situation it is important to determine when the disqualification or the ineligibility, which is removable by the payment by the con-testee of the public moneys collected by him, may be removed and the contestee by such removal rendered qualified to hold the office to which he claims to have been elected.
In State ex rel. Clayton v. Neal, 122 W. Va. 501, 11 S. E. 2d 109, discussing the time at which to determine the eligibility of a candidate for a public office, this Court said that the eligibility of a candidate for the office of prosecuting attorney “must be determined as of the date when he would enter upon the duties of his office, if elected, to-wit, the 1st day of January, 1941.” In that case, a proceeding in mandamus, the writ sought by the petitioner to compel a county court sitting-as a board of canvassers to declare him to be the nominee of a political party for the office of prosecuting attorney of the county was denied on the ground that a board of canvassers was with
“The courts are frequently called upon to determine the question as to when the conditions of eligibility to office must exist, whether at the time of election, the commencement of the term, or the induction into office. In ascertaining this matter, the language used in, the constitutional or statutory provision declaring the qualifications is to be considered.- It may expressly or by necessary implication specify the time when the required eligibility must exist. Where such is the case, there can be no question but that the candidate must possess the necessary qualifications at that time. If it is specified that they must exist at the time of the election, a candidate who does not possess them at that time is not eligible although the disqualifications cease to exist before the beginning of the term, or later. * * *. If the Constitution or statutes do not specify the time when the conditions of eligibility must exist, it is necessary for the courts to have recourse to some other means of determining the matter. The terms employed in declaring the qualifications are to be taken into consideration. And since these are necessarily variant, it is not strange that the courts have reached different conclusions. Some of them, perhaps the majority, take the view that the word ‘eligible’ as used in Constitutions and statutes has reference to the capacity not of being elected to office, but of holding office, and that, therefore, if qualified at the time of commencement of the term or induction into office, disqualification of the
In dealing with the subject of default in the payment of public funds as affecting the eligibility for office of a candidate 67 C. J. S., Officers, Section 25, uses this language: “Under the provisions of some constitutions or statutes, a defaulting officer is disqualified from office, or shall be disqualified until the moneys for which he is in default are accounted for, or until he obtains a discharge therefor. * * *. Such a provision is generally held not to provide a permanent ineligibility and, on payment of all amounts for which the officer is delinquent, he is restored to the right to hold office; and it has been held that it is sufficient if the condition is complied with before the functions of the new office are to be taken up.”
Courts in several jurisdictions hold that the eligibility of a candidate for office, under a constitutional or statutory provision dealing with the qualification of public officers, relates to the time of the election and means capacity to be elected rather than capacity to hold office, that a candidate for a public office must be qualified at the time of the election, and that if he is not then quali
A majority of the courts in other jurisdictions, whose decisions appear to constitute the weight of judicial authority, hold that the eligibility of a candidate for office under constitutional and statutory provisions affects the right to hold an office instead of the right to be elected to the office and that, if his disqualification has been removed at the time of the commencement of the term or at the time of his induction into office, his disqualification at the time of the election is immaterial. Neelley v. Farr, 61 Colo. 485, 158 P. 458, Ann. Cas. 1918A, 23; Bradfield v. Avery, 16 Idaho 769, 102 P. 687, 23 L. R. A. (N. S.) 1228; People v. Hamilton, 24 Ill. App. 609; Smith v. Moore, 90 Ind. 294; Vogel v. State, 107 Ind. 374, 8 N. E. 164; Brown v. Gohen, 122 Ind. 113, 23 N. E. 519; Shuck v. State, 136 Ind. 63, 35 N. E. 993; Hoy v. State, 168 Ind. 506, 81 N. E. 509, 11 Ann. Cas. 944; Demaree v. Scates, 50 Kan. 275, 32 P. 1123, 20 L. R. A. (N.S.) 97, 34 Am. St. Rep. 113; Privett v. Bickford, 26 Kan. 52, 40 Am. Rep. 301; Kirkpatrick v. Brownfield, 97 Ky. 558, 31 S. W. 137, 29 L. R. A. 703, 53 Am. St. Rep. 422; Jones v. Williams, 153 Ky. 822, 156 S. W. 876; State ex inf. Major, ex rel. Ryors v. Breuer, 235 Mo. 240, 138 S. W. 515; In re Kilburn, 157 Misc. 761, 284 N. Y. Supp. 748; State ex rel. West v. Breckinridge, 34 Okla. 649,
The statement in the opinion in State ex rel. Clayton v. Neal, 122 W. Va. 501, 11 S. E. 2d 109, that the eligibility of a candidate to perform the duties of the office which he seeks “must be determined as of the date when he would enter upon the duties of his office, if elected,” which in that instance was the- first day of January, 1941, is in accord with and is supported by the above cited cases in other jurisdictions which apparently constitute the weight of judicial authority, and expresses the sound and correct principle of law to be applied in determining the eligibility of a candidate to hold the office to which he claims to have been elected. Application of this rule in this jurisdiction means that a candidate, who is ineligible or disqualified to hold the office at the time of the election, in order to occupy it, must remove his disqualification at or before the commencement of the term of office to which he was elected according to the election returns.
Article VIII, Section 18, of the Constitution of this State relates to the office of clerk of the circuit court and provides that the voters of each county shall elect a clerk of the circuit court whose term of office shall be six years, that his duties and compensation and the manner of removing him from office shall be prescribed by law, and that when a vacancy shall occur in that office, the circuit court or the judge in vacation shall fill it by appointment until the next general election. Article IV, Section 7, of the Constitution of this State 'declares that the general elections of State and county officers, and of members of the Legislature, shall be held on the Tuesday next after the first Monday in November, until otherwise provided by law, and that the terms of such officers, not elected or appointed to fill a vacancy, shall, unless otherwise provided in the Constitution, begin, on the first day of January, and of the members of the Legislature, on the first
Consideration and application of the constitutional and statutory provisions just referred to impel the conclusion that the contestee, being ineligible to hold the office of clerk of the Circuit Court of Mingo County at the time of the. general election in 1950 and at the time of the in
It may be urged, in support of the contention of the contestee that this proceeding is prematurely instituted, that, in the event an election contest involving the ineligibility or the disqualification of a contestee, which exists at the time of the election but 'which, as here, is
Affirmed.
Dissenting Opinion
dissenting:
In all deference to the majority members of this Court, I dissent from that part of the majority opinion in this case which holds that the contest before the County Court of Mingo County is not premature.
West Virginia Constitution, Article VI, Section 14, provides that: “* * * No person who may have collected or been entrusted with public money, whether State, county, township, district, or other municipal organization, shall be eligible to the Legislature, or to any office of honor, trust or profit in this State, until he shall have duly accounted for and paid over such money according to law.” This provision, in my opinion, does not deal with the right of a person delinquent as to public money to be elected to office. Clearly it provides only a conditional ineligibility of a contestee, who has received a majority of the votes cast in an election, to hold office. Such provision is found at no other place in either the Constitution or the statutory law of this State.
None of the cases cited in the majority opinion is in point with the instant case, nor sustains the position that the instant proceeding is not premature. Dryden v. Swinburn, 15 W. Va. 234; Swinburn v. Smith and Dryden, 15 W. Va. 483, and Dryden v. Swinburne, 20 W. Va. 89, involve a contest before the County Court of Kanawha County of Swinburn’s election as Clerk of the Circuit Court of that County. The contest was predicated upon
Likewise the cases of Irons v. Fry, 129 W. Va. 284, 40 S. E. 2d 340; Orndorff v. Potter, 125 W. Va. 785, 25 S. E. 2d 911; State of West Virginia ex rel. Miller v. Board of Education of Mason County, 126 W. Va. 248, 27 S. E. 2d 599; and Gorrell v. Bier, 15 W. Va. 311, should be distinguished from the instant case.
The case of Irons v. Fry, involved Article VIII, Section 23, of the West Virginia Constitution, which reads, in part: “* * * But no two of said commissioners shall be elected from the same magisterial district.” (Italics supplied.) And Chapter 48, Article 4, Section 5, Acts of the Legislature, 1943, amending and reenacting Code,
As stated in the majority opinion: “A majority of the courts in other jurisdictions, -whose decisions appear to constitute the weight of judicial authority, hold that the eligibility of a candidate for office under constitutional and statutory provisions affects the right to hold an office instead of the right to be elected to the office and that, if his disqualification has been removed at the time of the commencement of the term or at the time of his induction into office, his disqualification at the time of the election is immaterial.” The majority opinion cites many cases in support of the foregoing statement, and, in all deference, I am of opinion that the majority opinion is contrary to the decisions constituting the weight of authority.
As to whether this proceeding was prematurely instituted, the majority opinion poses a serious question: Would a contestee be erroneously deprived of his right to hold office, if an election contest, involving a conditional ineligibility is determined finally against the con-testee prior to the beginning of the term for which the contestee was elected, and thereafter, but before the beginning of the term of office, the conditional ineligibility is removed? The majority opinion inaptly answers this
Where, may it be asked, is there anything in these statutes which provides for a contest involving a conditional ineligibility to hold office? The very language of Section 2, which provides that the contestee’s notice shall set forth a list of the votes which he will dispute, with the objections “to each, and of the votes rejected for which he will contend,” is not consonant with the language of West Virginia Constitution, Article VI, Section 14, which provides: “No person who may have collected or been entrusted with public money, whether State, county, township, district, or other municipal organization, shall be eligible * * * to any office of honor, trust or profit in this State,, until he shall have duly accounted for and paid over such money according to law.”
Nor, in my opinion, is there any merit in the second position taken in the majority opinion, which involves the question as to what would happen if the election contest is completed before the term of office is over. I simply
As hereinbefore quoted, Article VI, Section 14, of the Constitution of this State renders a person ineligible to be a member of the Legislature or to hold an office of public trust until he shall have duly accounted for and paid over public moneys which may have come into his hands according to law. Though not carried into the syllabus, the opinion of the Court in this proceeding by ignoring the words “until he shall have duly accounted for and paid over”, contained in said Section 14, in effect,, has vitiated the constitutional provision by holding that, the ineligibility of the contestee must be removed at or before the commencement of the term of office to which such person may have been elected; It has always been my understanding that an amendment to the Constitution of this State must be submitted to the citizens and voters of the State, and that neither this Court, nor any other body or official, has the power to perform- that function by reading into it words that do not appear therein.
It is my considered view that the ineligibility of the contestee who has collected public moneys and has not paid over and accounted for the same becomes nonexistent by force of the plain words of the constitutional provision when such person accounts for and pays over such public moneys in accordance with law. The constitutional provision fixes no time for the removal of such ineligibility, and I think it could be done at any time before the term of office commences, after the term of office commences, or at any other time during such term. This position gives effect to the plain words of the Constitution according to their tenor and meaning. There is no ambiguity in the language contained in Article VI, Section 14, and, therefore, no logical or legal basis for the construction adopted in the Court’s opinion.
I am authorized to say that Judge Lovins concurs in this dissent.
Rehearing
On Rehearing
On the rehearing of this proceeding, heretofore granted upon the petition of the contestee, full consideration has been given to the reasons presented in the written brief and in the oral argument in behalf of the contestee to support his contention that the original decision of this Court, with two judges dissenting, should be modified or reversed. Careful review and reexamination of that decision and of the reasons upon which it was based justify the conclusion that it was correct and free from error and that it should not be departed from or altered in any particular. In consequence, the original opinion and the pre
Affirmed.
Dissenting Opinion
dissenting:
For the reasons stated in the dissenting opinion heretofore filed in this case, Judge Lovins and I dissent from the majority opinion on the rehearing of this proceeding and adhere to and adopt without change or modification the dissenting opinion heretofore reported.
