69 W. Va. 211 | W. Va. | 1911
M. M. Eeppard was elected president of the board of education for Ellsworth district, Tyler county, at the general election in 1902, for the full term of four years beginning on the 1st of July, 1903, but for some reason did not qualify. He was then appointed by the county superintendent of free schools to fill said office and qualified by taking the oath required by law; and was in office claiming the right to hold it at the institution of this proceeding. At the general election in 1906, F. E. Hickman was elected president of said board of education, for the term of four years beginning on the 1st of July, 1907; but Hickman failed to qualifjq and on the 11th of October, 1907, G. W. Smith was appointed by the county superintendent for the unexpired term for which F. E. Hickman had been elected. Eeppard refused to surrender the office to Smith, and claims that, under the law, section 2, chapter 45, Code (1906), he had a right to hold the office until his successor was elected and qualified; that, although Hickman was elected, his failure to qualify did not create a vacancy, because he (Eeppard) was rightfully in office, and that the county superintendent had no right to appoint as for a vacancy. On application by Smith to the circuit court of Tyler county a peremptory writ of mandamus was awarded on the 27th of February, 1908, placing him in the office, and Eeppard obtained this writ of error.
The sole question jnesented is, had the county superintendent the power to appoint'relator as for a vacancy? A majority of the court are of opinion that he had such power and that his appointment of Smith conferred upon him the right to the office. They hold that the law of this case is settled in Kline v. McKelvey, 57 W. Va. 29, construing section 2, chapter 45, Code (1906). They still adhere to that decision as a correct construction of the statute.
If the statute had not been so construed in that case, I would have been of the opinion that the county superintendent had no power to appoint, so long as there was an incumbent rightfully holding. Section 5, chapter 45, authorizes the county superintendent to appoint only in case of a vacancy; and I do not see how there could be a vacancy if one was in office who lilac! a right to it. The office of president of the board of education is created by the legislature, not by the constitution, and
The judgment of the lower court will be affirmed.
Affirmed.