Carr v. *(Green
| Decision Date | 14 March 1889 |
| Parties | Carr v. Wilson*(Green, Judge, Absent.) |
| Court | West Virginia Supreme Court |
Where persons are voted for for governor at a regular election for the office of governor, but there has been no declaration of the result of the election by either the Speaker of the House of Delegates or the joint assembly of the two branches of the Legislature, and a contest for that office is pend ing before such joint assembly, and the declaration of the result has been by such assembly postponed until the decision of such contest, that does not create such condition of things, within the meaning of section 16, art. VII, of the coustitution, as will entitle the President of the Senate to act as Governor.
In such case the governor elected for the next preceeding term has the right and is under duty, by virtue of section 6, art. IV, of the constitution, to continue to discharge the duties of his office until a successor shall be declared elected.
The act of taking the official oath prescribed for governor by a candidate voted for for governor at such election, before a declaration of his election, under section 3, art. VII of the constitution, would not entitle him to take office, and his inability to take office for want of such declaration of election, whether he attempts to qualify or not, would not entitle the President of the Senate to act as Governor.
A declaration of election to the office of governor, as provided for by sec. 3, art. VII, of the constitution, is indispensible to perfect and consummate the title to that office.
The provisions of the constitution limiting the term of office of governer to four years, and making him ineligible to re-election, do not prevent him from continuing to discharge the duties of his office after his term, under sec. 6, art. IV, of the constitution, in cases where the president of the senate can not act as governor, under section 16, art. VII, of the constitution.
Statement of the case by Judge Brannon:
Rebort S. Carr is president of the Senate. He filed his petition in this court, averring that on the 4th of March, 1889, the office of Governor of the State had become and remains vacant, and that under see. 16, art. VII, of the constitution it is his right and duty to act as Governor; that at the election last held for Governor Nathan Goff and A. B. Fleming were the two candidates receiving the highest number of votes for that office; that Goff claiming to have received a greater number than Fleming, on 4th of March, 1889, took the oath of office and demanded possession of the office, but that E. Willis Wilson, a private citizen found in its possession, refused to admit Goff; that Goff asked this Court for a mandamus to compel Wilson to surrender the office to him, but that the Court held, that he was not entitled to the Avrit for reasons stated in the opinion and decision of the conrt; and that the act of Goff in taking the oath was void and of no effect.
He farther states in said petition that either Goffor Fleming was elected, hut that both were and still are under such disability, as prevents their acting; that Fleming failed to qualify and for that reason and others is disabled from entering on the duties of the office; and that Goff for reasons stated in said opinion of this Court is disabled from so doing; also that he, Carr, demanded the office from Wilson and was refused admission, and he alleges in said petition, that Wilson had no right to the office. Carr asked a mandamus to compel Wilson to yield the possession of the office to him. By consent the petition stands as an alternative mandamas.
Wilson filed a return. It denies that any vacancy in the office exists, and that Carr has under the constitution any right to act as governor; and avers, that he under the constitution had the right and was under duty to continue in the discharge of the powers of the office, until his successor should be declared elected and should qualify. He admits, that said Goff and Fleming were candidates for Governor, each claiming to have received the highest number of votes. It avers, that, whether either received a majority of legal votes, or both an equal number, neither said Carr nor he could possibly know, as the returns of the election were sealed and transmitted to the Secretary of State, to be disposed of as directed by sec. 3, art. VII, of the constitution; that under the constitution said returns cannot be published, declared or made known except as by it provided; that in fact they had never been published and made known; that there is no law whereby they can be legally published except as set forth in said section 3; and therefore any averment of the petition that either Goff or Fleming had received a majority or had been elected, or did not receive an equal number of votes, is beyond the possibility of the petitioner's knowledge and therefore untrue. It avers, that neither Goff nor Fleming, nor any one else, had been declared elected, and therefore it was untrue, that either a failure to qualify or any disability or any condition of facts whatever had occurred concerning the governor which entitled Carr to act. It avers that Wilson was elected in October, 1884, governor for four years, beginning March 4, 1885, and that he was eligible to be so elected and was declared elected and served as such governor for such term, and is still in the office performing its duties, his successor not having been declared elected and qualified, within the meaning, intent and requirement of the constitution. It avers that Goff and Fleming were candidates for governor at the election on the Tuesday after the first Monday in November, 1888, for the term commencing March 4, 1889, and both of them and no other person claimed to have been elected. It also avers that said Fleming instituted proceedings contesting the election of said Goff before the legislature in joint assembly at its session commencing on second Wednesday in January, 1889; that the petition and notice of contest of Fleming and the counter-petition and notice of Goff were presented, received and entered on the journals of both houses of the legislature and also in the joint assembly, and that the necessary steps were taken by the joint assembly and the houses for the trial of the contest. Copies of the journal are filed with the return.
It appears therefrom, that the joint assembly adopted a resolution referring to said contest and suspending the declaration of the result as to governor until the decision of said contest; and that it was the opinion and decision of said assembly, that the mere reading of the returns already opened (those from a few counties had been opened) should not be construed to give either Goff or Fleming any claim or right to the office, and that all the returns should be referred without reading any of them not yet opened to the joint committee provided by law relating to contests for the office of governor and be considered, as if none of said returns had been read. Such a committee was appointed to examine and report on the contest between Fleming and Goff, and all returns and papers relating to it were referred to the committee. It appears also, that on the 4th January, 1889, an order was made by the Circuit Court of Kanawha suspending the delivery of the certificates of the commissioners of that county as to the election for Governor. A resolution was passed extending the time for taking depositions in the contest until day of May, 1889. Plaintiff, Carr, demurred to the return of said Wilson. The case was fully argued, and submitted to the decision of the court.
J. H. Ferguson for petitioner.
J. W. St. Clair and E. W. Wilson for respondent.
President Carr bases his claim for the office of Governor on section 16, art VII, of the constitution, which reads as follows:
"In case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the president of the senate shall act as governor until the vacancy is filled or the disability removed." Gov. Wilson denies the application of that provision to the present circumstances, and, though his term of four years as governor has expired, he claims to hold over until his successor shall be declared elected and qualified, under sec. 6. art. IV, of the constitution, which reads as follows: "All officers elected or appointed under this constitution may, unless in cases herein otherwise provided for, be removed from office for official misconduct, incompetence, neglect of duty, or gross immorality, in such manner as may be prescribed by general laws, and unless so removed they shall continue to discharge the duties of their respective offices until their successors are elected or appointed and qualified."
Carr contends that, while it is true, that under section 6, art. IV, officers hold over beyond their term, until their successors are qualified, yet that that section itself says: "unless in cases herein otherwise provided for;" and that, if we turn to said section 16, art. VII, it is therein otherwise provided for, as follows: "That in case of the death, conviction on impeachment, failure to qualify, resignation, or other disability of the governor, the president of the senate shall act as governor."
Wilson maintains, that the words, "unless in cases herein otherwise provided for," apply only to removals of officers, not to the clause providing for holding over, as if it read, "all officers may be...
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