Slater v. Varney, 10382
| Decision Date | 18 February 1952 |
| Docket Number | No. 10382,10382 |
| Citation | 136 W.Va. 406,68 S.E.2d 757 |
| Court | West Virginia Supreme Court |
| Parties | SLATER, v. VARNEY. |
Syllabus by the Court.
1. In a proceeding instituted under Section 2, Article 9, Chapter 3, Code, by a candidate for a county office to contest the election of an opposing candidate who has been returned as elected, the contestant is not required to allege or prove that he is entitled to the office involved in the contest if the sole ground of contest is the ineligibility or the disqualification of such opposing candidate.
2. Under Section 2, Article 9, Chapter 3, Code, which provides that the contestant, in an election contest involving a county office, may 'object to the qualification of the person returned as elected,' the election of such person may be challenged in such contest when it appears that he was ineligible or disqualified to hold the office to which he was returned as elected for a regular term and that such ineligibility or disqualification existed at the time of the election, even though it may be removed by the person returned as elected after the election and before the commencement of the regular term of such office.
3. An election contest involving a county office instistuted under and within the time required by Section 2, Article 9, Chapter 3, Code, upon the ground that the person returned as elected was ineligible or disqualified to hold the office, is not prematurely instituted if it appears that the ineligibility or the disqualification of such person, though subject to removal by him by subsequent action required of him by law for that purpose, existed at the time of the election and persisted at the time of the institution of such contest.
Bias & Bias and E. Gaujot Bias, Williamson, for plaintiff in error.
W. B. Hogg, Williamson, for defendant in error.
The contestant, Clifford Slater, instituted this election contest against Riley Varney, the contestee, in the County Court of Mingo County within ten days after the county court, acting as the canvassing board to canvass the votes and to declare the results of the general election held in that county on November 7, 1950, had declared the result of the election and that, upon the face of the election returns, Varney had been duly elected to the office of clerk of the Citcuit Court of Mingo County for the regular term of six years from January 1, 1951.
Two written notices substantially similar in form and substance were given by the contestant to the contestee. One dated November 16, 1950, was served upon the contestee on November 20, 1950, and service of the other, dated November 20, 1950, was accepted in writing by the contestee on November 21, 1950, on which day one of such notices was presented to and filed by the county court by order then entered of record, and the matters arising upon the notice were set for hearing at the next regular term of the court.
The notices given by the contestant disclose that he institutes this proceeding as nominee and candidate of the Republican Party against the contestee as nominee and candidate of the Democratic Party for the office of clerk of the Circuit Court of Mingo County at the general election in November, 1950; that at that election, as shown by the election returns, the contestant received 4,440 votes and the contestee received 8,756 votes, and that the county court, having completed the canvass of the results of the election, on November 13, 1950, declared the result of the election to be that the contestee had been duly elected to the office of clerk of the Circuit Court of Mingo County at the general election held on November 7, 1950, for the regular term of that office beginning January 1, 1951. The notices also state that the contestant is fully qualified by law to hold the office of clerk of the Circuit Court of Mingo County and that he claims to be the duly and legally elected candidate for that office. The notices further charge that the contestee, prior to the year 1930, held the office of clerk of the County Court of Mingo County and, while acting as such clerk, collected substantial amounts of public moneys and funds belonging to the State of West Virginia, the County of Mingo, and certain magisterial districts of that county; that an official audit, by the State Tax Commissioner of the accounts of the contestee as such county clerk, disclosed that the contestee had failed to account for approximately $14,000 of such public moneys and funds; that certain payments were subsequently made by and credited to the contestee against the foregoing amount; that the contestee has failed to account for and pay approximately $6,000 of the shortage in his accounts; that he still owes that amount with interest; and that, as a result of the failure of the contestee to account for and pay the public moneys and funds collected by him as clerk of the County Court of Mingo County, he was indicted by a Grand Jury of that county for the embezzlement of such public moneys and funds and, upon being arraigned in the Circuit Court of Mingo County to answer the indictment, entered a plea of guilty and by such plea admitted his guilt as charged in the indictment.
The notices charge, as the single ground upon whcih the validity of the election of the contestee is assailed, that the contestee is disqualified and ineligible to hold the office of clerk of the Circuit Court of Mingo County by virtue of Article VI, Section 14, Constitution of this State which in part provides that 'No person who may have collected or been entrusted with public money, whether State, county, township, district, or other municipal organization, shall be eligible to the Legislature, or to any office of honor, trust, or profit in this State, until he shall have duly accounted for and paid over such money according to law.'
In answer to the foregoing notices of the contestant, the contestee gave a written notice to the contestant dated November 25, 1950, served upon the contestant on November 27, 1950, in which the contestee denies the material allegations in the notices given by the contestant, protests the qualification of the contestant to hold the office of clerk of the Circuit Court of Mingo County for the reason that he had not been elected to that office as disclosed by the official declaration of the results of the election held November 7, 1950, and challenges the legal sufficiency of the notices given by the contestant. The grounds of demurrer set forth in the notice of the contestee are: (1) the contestant is not an interested party, has no rights to the office involved, and can not maintain this proceeding; (2) the County Court of Mingo County is without jurisdiction to hear and determine this proceeding; (3) the contestant has invoked the wrong remedy; and (4) no grounds exist on which to base an election contest and, for that reason, this proceeding is prematurely instituted.
On January 2, 1951, the first day of the next regular term of the county court following the general election held on November 7, 1950, the notices given by the contestant and the contestee were presented to the court and the proceeding was docketed and set for hearing on February 6, 1951, a later day of the same term of the court. In an original proceeding in mandamus entitled State of West Virginia ex rel. Slater v. The County Court of Mingo County, in which an order was entered but no written opinion was filed, this Court required the county court to hear and determine this proceeding not later than January 25, 1951, and the county court, on that day, heard the proceeding upon the demurrer to the notices given by the contestant set forth in the notice given by the contestee and, by final order entered January 27, 1951, subtained the demurrer and dismissed the proceeding. Upon the application of the contestant, an appeal, as provided by Section 3, Article 9, Chapter 3, Code, 1931, was granted by the Circuit Court of Mingo County to the final judgment of the county court and by order entered February 9, 1951, the circuit court reversed the judgment of the County Court of Mingo County and remanded this proceeding to that court with directions to it to hear testimony in behalf of the parties and decide this proceeding upon the evidence. To that judgment of the circuit court this Court granted this writ of error upon the petition of the contestee.
By his assignments of error the contestee seeks reversal of the judgment of the circuit court upon substantially these grounds: (1) the contestant, not having received the highest number of votes cast for the office of circuit clerk, is not entitled to hold that office, has no interest in such office and, in consequence, can not maintain this proceeding; (2) the contestant has invoked the wrong remedy because the alleged disqualification or ineligibility of the contestee to hold the office of clerk of the circuit court can not be determined by the county court in this proceeding; and (3) this proceeding has been prematurely instituted because the alleged disqualification or ineligibility of the contestee is removable and may be removed by him after the institution of this proceeding.
To resolve the first contention of the contestee the pertinent provisions of the statute which relate to an election contest involving an office to be filled by the voters of a county must be considered. Section 1, Article 9, Chapter 3 of the Code of 1931, based upon Article VIII, Section 24, of the Constitution of this State which confers jurisdiction upon county courts in election contests relating to their own members and all county and district officers, provides that in all cases of contested elections, the county court shall be the judge of the election, qualifications, and the returns of their own members and of all county and district officers....
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