Sharps v. Jones

• Decision Date: 26 January 1926
• Docket Number: (C. C. No. 371.)
• Citation: 131 S.E. 463
• Parties: SHARPS . v. JONES.
• Court: West Virginia Supreme Court

131 S.E. 463

SHARPS .

v.JONES.

(C. C. No. 371.)

Supreme Court of Appeals of West Virginia.

Jan. 26, 1926.

(Syllabus by the Court.)

(Additional Syllabus by Editorial Staff.)

Case Certified from Circuit Court, Barbour County.

Petition by D. C. Sharps to remove S. E. Jones from office as a member of a board of education. After sustaining defendant's demurrer as to three charges of the petition, but overruling it as to the fourth charge, the trial court certifies its rulings. Ruling sustained as to the first three charges, and demurrer held good as to the fourth charge.

Wm. T. George, of Philippi, for plaintiff.

D. D. Stemple, of Philippi, for defendant.

MILLER, J. By petition to the circuit court the petitioner sought to have removed from office the defendant, a member of the board of education, on the general ground of incompetency, alleging further: (1) That defendant "is very hard of hearing"; (2) that he "cannot read writing"; (3) that he "does not consider the best interests of taxpayers and citizens of the district from which he was elected in transaction of public business as a member of said board of education, but considers only his own private interest in all such matters"; (4) that "he obtained from the board of education a contract for himself in the year 1924 in violation of law, while he was a member of said board of education and had said board to allow him in payment of the work under said contract, by an order upon the building fund of said Barker district, on October 25, 1924, and he cashed said order and obtained the money thereon." The circuit court sustained defendant's demurrer as to the first three charges of the petition but overruled said demurrer as to the fourth charge, and has certified to this court the questions arising on said rulings.

Petitioner's counsel, in his brief filed on the hearing here, relies on section 12 of chapter 2S-A of the Code, for the jurisdiction of the circuit court to remove defendant from office. This section, by its terms, relates only to members of the county court, board of education, or other body charged with the fiscal affairs of the county, school district, or other municipal subdivision of the state, in their official capacity, in laying levies and incurring indebtedness not authorized by law.

Section 6 of article 4 of the state constitution provides that:

"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, " etc.

Section 7, chapter 7, of the Code, provides that:

"Any county or district officer including any member of a board of education may be removed from office for official misconduct, incompetency, habitual drunkenness, adultery, neglect of duty, or gross immorality."

The same section further provides that such removal shall be made by the circuit court of the county where such officer resides.

If true, would the fact that defendant is "hard of hearing'' render him incompetent to hold the office he now occupies? "Hard of hearing" is necessarily a relative term, and is applied to one who can not hear as well as a person possessing normal faculties of hearing, or does not hear as well as the average person. And here it is not alleged that defendant's hearing is so defective that he can not, and does not, hear and understand what occurs at meetings of the board of which he is a member; nor does the fact alleged lead to the conclusion that defendant is, by reason of such physical defect, unable to perform fully the duties of his office. If proven, the charge of "hard of hearing" does not amount to inefficiency or incompetency to hold office. Facts amounting to incompetency must be alleged.

The second charge, that defendant "cannot read writing, " is not sufficient to render him ineligible to hold office under the laws of this state. No educational requirements are prescribed, either by the constitution or by statute. No doubt, under our constitution, the legislature might prescribe educational requirements for office holders, but it has not done so; and under the law as we find it, we cannot say that ability to read writing is a necessary qualification of one holding the office of a member of a board of education. And it is not charged that defendant can not i read or write; only that he can not read writ-ing. His ability to participate in carrying on the fiscal affairs of the school district is not attacked. It is a well known fact that many very successful business men have not had the advantages of attending any school, many of them not being able to read or write.

And it is not alleged that defendant's defect in hearing or his inability to read writing did not exist at the time he was elected to office. It is to be presumed that the electors knew of his qualification when they voted him into office, and...