GORRELL v. BlER.

• Decision Date: 09 July 1879
• Citation: 15 W.Va. 311
• Parties: GORRELL v. BlER.
• Court: West Virginia Supreme Court

15 W.Va. 311

GORRELL

v.BlER.

Supreme Court of Appeals of West Virginia.

Decided July 9, 1879.

December 31, 1876.

A sheriff whose full term of office expired December 31, 1876. is eligible to fill a vacancy in the sheriffalty at an election held the second Tuesday of October, 1878; the third section of Art. IX of the Constitution only renders him ineligible to fill the full term of the sheriffalty beginning January 1, 1877.

Writ of error and supersedeas to a judgment of the circuit court of Pleasants county, rendered on the 28th day of November, 1878, in a proceeding on a writ of certiorari, in said court then pending, wherein Oliver Gorrell was plaintiff, and William E. Bier was defendant, granted on the petition of said Gorrell.

Hon. James M. Jackson, judge of the fifth judicial circuit, rendered the judgmentcomplained of.

Moore, Judge, furnishes the following statement of the case:

Oliver Gorrell, before the county-court of Pleasants county, at the November term, 1878, thereof, contested the right of William E. Bier to hold the office of sheriff for said county, to which said Bier claimed to have been elected, to fill a vacancy, at the general election held in said county on the 8th day of October, 1878. For the purpose of such contest, said Gorrell filed the following notice of contest:

" To W. E. Bier, Esq.:

" Sir: You are hereby notified that before the countycourt of Pleasants county, at the November term., 1878, I shall contest your election to the office of sheriff of the county of Pleasants, in the State of West Virginia, which election was held on the second Tuesday of October, 1878. The grounds and specifications of contest are as follows:

"Ground First. You were not qualified to be voted for by the voters of said Pleasants county at said election, on account of your being ineligible to hold said office if elected to fill it.

" Specification First. You were ineligible to hold said office at said election for this: That you held said office and discharged its duties as sheriff for an entire full term of four years, ending December 31, 1876, at which time the present full term began, and by the Constitution and laws of this State you are disqualified from holding the present term, or any part thereof.

" Ground Second. I was and you were not, according to the 3d section of Article IX of the Constitution, an eligible and legally qualified candidate to be voted for at said election. (See first specification).

" Ground Third. You procured the votes cast for you at the election held on the 8th day of October, 1878, by fraud, mal-conduct, false pretences and misrepresentations.

" Specification Third. You brought about and procured your election to said office of sheriff of said county by malconduct, misrepresentations and fraud in this: That in the year 1876, at divers times and places in said county of Pleasants, to divers persons, to-wit: To one William Carroll, Burr Triplett, Joseph Hubbs, J. R. M. Agnew, W. G. H. Core, Edmund Riggs, and to a large number of other persons to contestant unknown, legally qualified voters of said county, and persons who voted at an election held on the second Tuesday in October, 1876, for R. T. Parker, then a candidate for the office of sheriff of said county, you told and represented to said voters that if they, the said voters, would vote for and elect the said R. T. Parker, that the said R. T. Parker would fail and refuse to qualify and give the necessary bond, and by that means you could and would continue to hold and fill the office of sheriff of said county after the expiration of your full term; and that by false representations, fraud and mal-conduct as an officer you caused a vacancy in said office of sheriff, and that at that time the said P. T. Parker was elected to said office by a majority of the votes cast at said election caused by your misrepresentations, and that he, the said R. T. Parker, did fail and refuse to qualify as such sheriff, and that you did attempt to excrcise the functions of said office after the expiration of your term, and that a vacancy was created in said office by your fraudulent conduct in said election which made it necessary to fill the vacancy thus caused by you at the last general election, held October 8, 1878. I shall therefore claim that I am the legally elected candidate for the said office of sheriff, and am legally entitled to have, from the commissioners appointed at the courthouse to examine and certify the result of said election, a certificate of the fact, as required by law, and any certificate given to you by said commissioners, I shall claim to have set aside and declared null and void. The acts and doings, false representations and mal-conduct by which you compassed and brought about your election at the time before specified and mentioned in the toregoing grounds of contest and specifications, were to my injury and prejudice, and contrary to law and justice. Wherefore I shall claim to have the facts of the same enquired into, the points of law arising under the same decided by the county-court of Pleasants county at the next term thereof, believing that when the same is done, that it will be shown that I have been legally elected to the office of sheriff of Pleasants county at said election, as being the person eligible to the office receiving the highest number of votes, and am entitled to be qualified

as sheriff of Said COUllty.

" Respectfully yours,

" Oliver Gorrell.

"State of West Virginia,

County of Pleasants, to-wit: "Personally appeared before me, J. L. Knight, clerk of the county-court of the county aforesaid, Oliver Gorrell, whose name is signed to the foregoing notice, and made oath that the matters therein set forth, so far as they are stated on his own knowledge are true, and so far as they are stated on the information of others he believes them to be true.

" Oliver Gorrell.

"Taken, sworn to and subscribed before me this 23d day of October, 1878.

"J. L. Knight,

"Clerk County-Court Pleasants County, West Va"

"Return. Served the within notice on W. E. Bier by delivering to him a true copy theteof on the 23d day of October, 1878.

"John Watson, C. P. C."

And thereupon the contestant, O. Gorrell, moved the court to docket his said notice, which motion, together with the order of the court docketing the same, is in the words and figures following to-wit:

"This day came the contestant, by his attorney, and filed his notice of contest containing the grounds and specifications relied upon by contestant to defeat the defendant's right to the office of sheriff of Pleasants county, under the election held on the second Tuesday in October, 1878, to which office the defendant had been, by the officers conducting the electien at jthe court-house of said Pleasants county, declared elected as required by law, and on motion of said contestant, by his attorney, said notice was ordered to be docketed. And thereupon the said defendant, by his attorneys, moved the court to quash the return of the officer serving said notice, upon the ground that said officer was not an officer authorized by law to make such service; which motion being argued by counsel and considered by the court, the same was overruled. The defendant, by counsel, then moved the court to quash the said notice and the grounds and specifications therein contained, upon the ground that the same was not sufficient in law to require the defendant to answer thereto; which said motion having also been argued by counsel and considered by the court, the same was overruled. And thereupon the defendant, W. E. Bier, filed here in court his counter-notice of defense and of grounds contesting the right of the said contestant to the office of sheriff under the election aforesaid; and Gorrell filed his reply to the counter-notice. As the counter-notice and the reply thereto are not material in the decision of the points involved in the cause, so far as the Supreme Court has to consider the case, they are omitted from this statement.

The county-court having heard the evidence, on the 13th day of November, 1878, made the following order:

" This day came again the parties, by their attorneys, and the court having heard the argument of counsel on the matters arising in this contest, and having maturely considered the case, and it appearing that the said William E. Bier, who on the 14th day of October, 1878, received from the commissioners appointed to conduct the election at the court-house of this county a certificate showing that at the said election held in said county on the 8th day of October, 1878, the said William E. Bier, for the said office of sheriff, received five hundred and ten votes, and the said Oliver Gorrell received four hundred and fifty-eight votes; and it also appearing that the said William E. Bier was elected on August 22, 1872, to the office of sheriff of said county for the term of four years, beginning on the 1st day of January, 1873, and ending on the 31st day of December, 1876, and that he qualified and gave bond, and entered upon and discharged the duties ot said office for said term next preceding the. present unexpired term, the court is of opinion that the said William E. Bier was, on the 8th day of October, 1878, ineligible to the said office of sheriff for the term ending December 31, 1880, or any part of such term. And thereupon the court doth consider and declare that the said William E. Bier, being so ineligible, was not duly and legally elected to the said office of sheriff of this county on.the 8th day of October, 1878, and that he was then and there and is disqualified to hold and discharge the duties of such office of sheriff for said term ending as aforesaid, and that his said election was and is void, and that the said office was not filled at and by said election. And the court doth further find and consider that each party pay his own costs, which the court ascertains to be $9.55 for the contestant, and $3.25 for the...