Griffith v. Mercer County Court
| Decision Date | 08 May 1917 |
| Citation | 92 S.E. 676 |
| Court | West Virginia Supreme Court |
| Parties | GRIFFITH. v. MERCER COUNTY COURT et al. |
(Syllabus by the Court.)
Original mandamus by Owen P. Griffith against the County Court of Mercer County and others. Peremptory writ of mandamus awarded.
French & Easley, of Blnefield, and John R. Pendleton and C. W. Merrill, both of Princeton, for petitioner.
Russell S. Ritz, Sanders & Crockett, and H. B. Lee, all of Bluefield, for respondents.
Claiming to be elected to the office of commissioner of the county court of Mercer county at the general election, held on the 7th of November, 1916, for a full term of six years beginning on the 1st day of January, 1917, and to be denied a seat on the court and the right to participate in its proceedings, by respondents who claim to constitute said court, relator, Owen P. Griffith, has applied to this court for a mandamus to compel B. B. Hunt and R. D. Patterson, the acting members thereof, to recognize him as a member of said body and to admit him to office. There is no controversy as to the facts which are as follows: A. B. Calfee, a resident of Rock district in said county, was elected a member of the county court in the year 1912, for a term of six years, beginning the 1st of January, 1913, and ending the 31st of December, 1918. Calfee died in 1915 and R. D. Patterson, a resident of Rock district, was appointed to fill the vacancy until the next election, which was the regular election held on the 7th of November, 1916. At that election said Patterson and Allen W. Brown, a resident of East River district in said county, were duly nominated by opposing political parties as candidates for election to fill said unexpired term, and were the only candidates for that office voted for at the election. Relator, a resident of Rock district, and W. V. Peck, a resident of East River district, were likewise nominated by the respective political parties of which they were members, as opposing candidates for the office of commissioner for a full term of six years, beginning on 'the 1st of January, 1917. A canvass of the returns of the election, made in the manner provided by law, showed that Patterson had received 4, 825 votes, and Brown 4, 802 votes; that relator had received 4, 866 votes, and his opponent 4, 770 votes.
Shortly after the election said Patterson took the oath of office, assumed the right to act, and is now acting as one of the commissioners of said court, and he and his corespondent, B. B. Hunt, refuse to permit relator to sit as a member of said court or to participate in its proceedings, on the alleged grounds that said Patterson was already serving by appointment at the time of the election, and was entitled to continue to serve until his successor was elected and qualified, and, having received more votes than his opponent at the election, was elected to succeed himself and was thereby continued in office for the balance of the unexpired term; that he was, therefore, lawfully in office before the beginning of the regular term towhich relator claims he was elected, and the admission of the latter to a place on the court, both being residents of the same magisterial district, would be in violation of section 23, article 8, of the Constitution, prohibiting two commissioners from the same district from serving on the court at the same time.
His opponent, Allen W. Brown, contested the election of Patterson, in the county court, and that contest resulted in the court's finding, and entering an order so declaring on the 26th of December, 1916, that said Patterson was elected and was qualified and eligible to fill the office. Thereupon Brown gave bond, which the court approved, and applied for and obtained an appeal to the circuit court of Mercer county, and the contest is now pending in that court. It is further urged that the award of the writ in this case would, in effect, oust that court of its jurisdiction to determine the question presented in that case. Because, it is argued, if relator is admitted to a seat on the court, respondent, being a resident of the same district with relator, is necessarily excluded on account of the constitutional inhibition upon two commissioners serving from the same district at the same time.
Respondents demurred and moved to quash the alternative writ, and also made return thereto. To the return relator filed a special replication. The pleadings, however, present only questions of law to be here determined.
It is admitted that, under the law of this state, mandamus is the proper remedy to induct a man into office who shows a clear prima facie legal right thereto and who is wrongfully withheld therefrom. Whether relator has shown such right in this case depends on the proper interpretation of section 23, article 8, of the Constitution, and whether or not it is applicable for the purpose of determining the result of the voting for county commissioners in this case. That section, after providing for the election of three commissioners at the first election to be held under the Constitution, for the full term of six years, and for the determination among themselves by lot which one of them shall serve for two, which for four and which for six years, and for the election, every two years thereafter, of one member to serve for a full term of six years, proceeds as follows:
One purpose of this provision of the Constitution was a distribution of the commissioners among the different magisterial districts as much as possible, thus preventing any one of them from having an unequal share of representation on the court. The inhibition upon two commissioners serving from the same district is admitted to be imperative. But counsel for respondent argue that he was a candidate for election to fill a vacancy, and, having received more votes than Brown, his only opponent for that office was necessarily elected, and was entitled to his office immediately, whereas relator was a candidate for a full term which did not commence until the 1st of January, 1917, and could have been elected only in case respondent had been defeated by his opponent Brown. Because, they say, respondent was elected to a vacancy and was entitled to the office immediately upon his qualification after the election and had the right to fill it, in any event, until the 1st of January, 1917, and hence, being lawfully in office, he could not thereafter be ousted by the election of another commissioner from the same district. They further contend that each one of the three commissioners' terms is a distinct office, which must be admitted, and that the constitutional provision was intended to apply only to full-term offices, and was made to meet any exigency that might arise at the first election held after the Constitution went into effect, and has no application to the present case, which we do not admit. Two members of the court had to be elected at the same election, one to fill a vacancy, or an unexpired term, and the other a full term. Of course whoever was elected to fill the vacancy was entitled to take office as soon as his election should be lawfully determined and he had qualified, whereas the one who was elected to the full term was not entitled to sit until the beginning of the term to which he was elected, which was the 1st of January following the election. But the fact that the one who was elected to the vacancy was entitled to occupy his office before the other's term began does not determine the case, in fact it has no bearing on the merits of the controversy. It does not determine who was elected. It must be admitted that respondent Is a de facto commissioner, and is acting as such under colorable title to the office. Because the county court, the tribunal authorized by law to determine the election and qualification of its own members, has declared he was elected. But to argue that he was lawfully elected and entitled to the office as a matter of right, from and after the election, on the ground that he received a greater number of...
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