State ex rel. Carson v. Wood

• Decision Date: 17 July 1970
• Docket Number: 12936,Nos. 12935,s. 12935
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Luther CARSON v. George W. WOOD, Judge, etc., et al. (two cases).

Page 482

175 S.E.2d 482

154 W.Va. 397

STATE ex rel. Luther CARSON v. George W. WOOD, Judge, etc., et al. (two cases).

Nos. 12935, 12936.

Supreme Court of Appeals of West Virginia.

Submitted May 5, 1970.

Decided July 17, 1970.

Syllabus by the Court

1. 'Under Section 1, Article 1, Chapter 53, Code, 1931, the writ of prohibition lies as a matter of right in all cases of usurpation and abuse of power when the inferior court does not have jurisdiction of the subject matter in controversy, or, having such jurisdiction, exceeds its legitimate powers.' Syllabus, Point 1, State ex rel. McCormick v. Hall, 150 W.Va. 385 (146 S.E.2d 520).

2. If an indictment fails to charge a petitioner with a crime and, for that reason, is a void indictment, the court is without jurisdiction to try the petitioner upon such indictment, and prohibition is the proper remedy to prevent the prosecution of the petitioner upon such void indictment.

3. Penal statutes must be strictly construed against the State and in favor of the defendant.

4. No person can become an executive or ministerial officer who is subject to the provisions of Code, 61--5--5, as amended, unless the position he occupies is a Constitutional office or one 'created by law,' that is, by the legislature.

5. Among the criteria to be considered in determining whether a position is an office or a mere employment are whether the position was created by law; whether the position was designated an office; whether the qualifications of the appointee have been prescribed; whether the duties, tenure, salary, bond and oath have been prescribed or required; and whether the one occupying the position has been constituted a representative of the sovereign.

6. In order for one to be a de facto officer, the position which he occupies must have a de jure existence.

7. Where it appears from the verified pleadings in an original proceeding in prohibition pursuant to Code, 53--1--1, as amended, that a petitioner indicted for bribery under Code, 61--5--5, as amended, as an 'executive and ministerial officer of the State of West Virginia,' did not occupy, at the time of the alleged offense, a position created by law, did not have a definite tenure or salary, and who was not required to take an oath of office or file a fidelity bond, such petitioner was not an executive and ministerial officer but was a mere employee, and, therefore, the indictment is void since it charges no crime.

Homer W. Hanna, Jr., Alexander J. Ross, Charleston, for relator.

Leo Catsonis, Special Pros. Atty., Charleston, for respondents.

BROWNING, President.

These are original proceedings in prohibition instituted by the State of West Virginia at the relation of Luther Carson, hereinafter referred to as petitioner, against the Honorable George W. Wood, Judge of the Intermediate Court of Kanawha County, and Patrick Casey, Prosecuting Attorney of Kanawha County, hereinafter referred to as respondents. The purpose of these proceedings is to prohibit the respondents from prosecuting the petitioner under felony indictments No. 3010 and No. 3011, returned by a grand jury of the Intermediate Court of Kanawha County during the September, 1969, term.

Indictment No. 3010 charges petitioner, as an 'executive and ministerial officer of the State of West Virginia,' with demanding, receiving and accepting a bribe from one Ray George while petitioner was 'Director of Office Services' of the State Road Commission of West Virginia . The purpose of such bribe was 'to grant favor and award business to * * * Business Systems and Equipment Company, Inc. * * * through and by Ray George who was * * * an agent and * * * person concerned in interest of Business Systems and Equipment Co., Inc.' Indictment No. 3011 again charges petitioner, as an 'executive and ministerial officer of the State of West Virginia,' with demanding, receiving and accepting a bribe, this time from William Williams, a 'person concerned in interest of West Virginia Business Forms, Inc.'

Petitioner alleges that he went to work for the State Road Commission on or about June 16, 1965, and terminated his employment with the State Road Commission on or about April 8, 1969. He avers in his petition that he was not an officer of the State Road Commission but merely an employee. He further alleges that no State Road Commissioner, during his period of employment, 'promulgated any rules or regulations establishing an Office known as 'Director of Office Services' and fixing the powers and duties of such Office'; that the West Virginia Code does not establish such an office; that he was not required to take an oath of office or file a fidelity bond; and that he did not receive a 'certificate of appointment.' Petitioner maintains that his job was 'supervised and directed' by the Business Manager of the State Road Commission and that 'he had little or no discretion as to how he was to do his job.' Petitioner additionally alleges that 'he was never and is not now the holder of an office known as 'Director of Office Services' as is alleged in the said indictment returned against him.' Thus, petitioner concludes that he is not a person who can be bribed under Code, 61--5--5, as amended, which reads as follows:

Any Executive, legislative, judicial or ministerial officer, or member of the legislature, who shall demand, receive or accept any gift, gratuity, money, testimonial or other valuable thing, or shall exact any promise to make such gift or to pay to him, money, testimonial or other valuable thing, or to do any act beneficial to such Officer or member of the legislature, from any person, company or corporation, under an agreement or understanding that his vote, opinion, judgment or decision shall be given or withheld in any particular manner upon a particular side of any question, cause or proceeding, which is, or may be by law brought before him in his Official capacity, or that in such capacity he shall make any particular nomination or appointment, or for any vote or influence he may give or withhold as such Officer or member of the legislature, or that such Officer will fail to perform or improperly perform any of his Official, public duties, shall be guilty of a felony and, upon conviction thereof, shall be confined in the penitentiary not less than one nor more than ten years; and in addition thereto such Officer or member of the legislature shall forfeit the Office then held by him and shall be forever disqualified from holding any office or position of honor, trust or profit in this State. (Emphasis added.)

It is further asserted that Code, 61--5--5, as amended, 'is unconstitutional and void,' and this, coupled with the fact that petitioner is not a person who can be bribed under that Code section, renders the two indictments void.

In answer to the above, respondents deny that petitioner was not an officer of the State Road Commission and deny that he was merely an employee; aver that he was appointed to the position of Director of Office Services by former State Road Commissioner Burl A. Sawyers; and aver that petitioner among other duties 'exercised discretionary purchasing authority up to $100.00 per day per vendor and administered the employment of approximately 70 employees of the Office Services Division.' In short, respondents maintain that petitioner was indeed an officer of the State and thus could be bribed under Code, 61--5-- 5, as amended. Petitioner filed herein a motion to strike a number of allegations from respondents' answer on the ground that they were 'impertinent and scandalous matter,' 'consisted of mere surplusage and contained extraneous and irrelevant material,' and that they 'are not responsive to the Petition and in fact plead no defense thereto.' Also filed are demurrers by both sides.

On March 2, 1970, rules were granted returnable on May 5, 1970, and on that date the cases were submitted for decision upon oral argument and briefs.

Perhaps one who is not familiar with the history of the law relating to the bribery of officials and employees of units of government, and even those who are, may be inquisitive as to why the legislature in Code, 61--5--5, as amended, made bribery applicable only to executive, legislative, judicial and ministerial officers and members of the legislature. We must first say that the answer to that question is of no concern to this Court in reaching a decision herein since, under the separation of powers provision of the Constitution of this State, the power of enacting legislation is vested solely in the legislature.

Article VIII, Section 21, of the Constitution of this State provides that the common law shall remain in effect in this jurisdiction until changed by statute. Under the common law, bribery of officials was a misdemeanor and not a felony (as presently provided) except bribery of a judge with respect to a cause pending before him, which was a felony. Perhaps when Code, 61--5--5, as amended, was first enacted it was assumed minor 'officials' and mere employees would not be subject to the temptation of bribery and it was not necessary to include them; but, to repeat, whatever the reason they are not included is of no concern to this Court. The pivotal issue therefore presented in this proceeding is whether or not the petitioner falls within the definition of Code, 61--5--5, as amended, there being no question that he was indicted as having violated the provision of that statute inasmuch as that indictment follows the statute almost verbatim. However, the initial, or what is often called the threshold, question which must be answered is whether prohibition will lie to restrain the respondent judge of the Intermediate Court of Kanawha County and the prosecuting attorney of that county from proceeding to prosecute petitioner under these indictments.

The Constitution of this State gives this Court original jurisdiction in prohibition, a point not raised or controverted by the respondents....