John M. Phares v. The State.

• Citation: 3 W.Va. 567
• Parties: John M. Phares v. The State.
• Decision Date: 31 August 1869
• Court: Supreme Court of West Virginia

3 W.Va. 567

John M. Phares

v.The State.

Supreme Court of Appeals of West Virginia.

August Term, 1869.

1. A party possessing all the qualifications required by the constitution and laws to vote and hold office, at the time he is elected and qualified as sheriff of the county, has a vested right in the office of which he cannot be deprived, but for cause. And the fact of his name being stricken, after his election and qualification, from the list of registered and qualified voters, is not sufficient cause to remove him from the office.

2. It is error to admit as evidence a certified list of the voters ordered by the

board of registration to be stricken from the registry; only the record of the proceedings of the board, or a copy thereof, properly certified to be n copy, is admissible as evidence.

3. The reversal of a judgment removing an officer from an office, removes the only impediment to his office, and he is in law the only lawful holder of the same, and no order of this court is necessary to restore him thereto.

John M. Phares was elected by a majority of the votes cast, sheriff of Randolph county, at the general election held on the 4th Thursday of October, 1866, for the term of four years from the 1st day of January, 1867. At the November term of the circuit court of that county he gave bond and took the several oaths prescribed by law. On the 20th of August, 1867, after Phares had entered upon and been exercising the duties of his office, a rule was filed against him requiring him to show cause why he should not be removed from his office, the board of registration of the county having certified to the circuit court that he was not entitled to vote. He appeared and moved to quash the notice, which motion was overruled. He filed two pleas, and after the hearing of the case the court ordered his removal from his office of sheriff.

The first plea alleged his election and his being a qualified registered voter at the time thereof and of hia indue tion into office, and that he.had not been convicted of any offense or official dereliction for which the law had provided that ho should be removed. The second denied that there was any record that he was not entitled to vote.

The first bill of exceptions taken by the defendant was to the reading of a list of voters ordered to be struck off the list of duly qualified voters of the county, among which the defendant's name appeared. To this list was appended a certificate of the clerk of the board of registration, certifying that the above list was a true copy of the names ordered to be struck from the list of registered voters in Randolph county.

The other bills of exception do not appear to have been considered by this court, and it is unnecessary to state their contents.

The defendant obtained a supersedeas from this court.

C. S. Lewis for the plaintiff in error. Attorney General Caldwell for the State.

Brown, President. This was a rule from the circuit court upon the defendant, Phares, to show cause why he should not be removed from his office of sheriff of Randolph county, because his name had been stricken from the list of registered voters by the board of registration.

There was a motion to quash tke rule, which the court overruled.

The only proof in the case, that the defendant was not a voter, is the certificate of the clerk of the board of registration that...