State v. Jones

81 W. Va. 182 | W. Va. | 1917

Ritz, Judge:

In November, 1912, the defendant was elected to the office of justice of the peace of Fairfax District, in Tucker county, for the term of four years beginning on the first day of January, 1913. ( On the 11th day of March, 1915, he was indicted under the provisions of §4 of article 9 of the Constitution for malfeasance, misfeasance and neglect of official -duty, was tried upon said indictment, found guilty, and removed from office. From the judgment ousting him from, office he prosecutes this writ of error.

The defendant’s term of office expired on the 31st day of December, 1916. Is there a live question presented here for determination? It will be observed that the only punishment provided upon conviction of the charge contained in the indictment is removal from office. By the expiration of the defendant’s term there is nothing left upon which the judgment of the court can operate. The defendant can be deprived of nothing in this proceeding, and the questions presented are entirely moot. 3 C. J. 364-365; State v. Lambert, 52 W. Va. 248; Elbon v. Hamrick, 55 W. Va. 236; Hamilton v. Ammons, 56 W. Va. 190; State v. Carter, 63 W. Va. 684; Barbee v. Howard, 66 W. Va. 631; Hamer v. Commonwealth, 107 Va. 636.

But it is said the parties are interested in the question of costs. Costs are merely incident to the trial of the contro- ' versy between the parties. Courts do not award costs except as a result of the decision of a real controversy. There being none such here, this court will not determine the moot questions presented in order that it, may be advised as to who should pay costs. Sec authorities above cited.

It is argued that the term of office of the defendant continues until his successor is elected and qualified by virtue of the provisions of §2 of ch. 7 of the Code, and inasmuch as it does not appear that his successor has been elected and qualified it will be presumed that he is still in office. This position is untenable. The law provides for the election of justices of the peace, and for their qualification, so that they may enter upon the discharge of their duties at the time fixed for the commencement of their terms, and nothing appearing to the contrary it will be presumed that the law in this regard has been complied with.

The suggestion that this writ of error should be dismissed as presenting only a moot question comes from the plaintiff in error, and the State cannot be injuriously affected by its dismissal, for even though it be true that the plaintiff in error is holding over, the dismissal of the writ of error leaves the judgment below in full force, and it will be as effectual to remove him as though this writ of error had never been awarded.

The writ of error will bo dismissed without costs.

Writ of error dismissed.