State Ex Rel. John H. Looney Et At. v. Carpenter.

• Decision Date: 16 October 1928
• Docket Number: (No. 6413)
• Citation: 106 W.Va. 170
• Court: West Virginia Supreme Court
• Parties: State ex rel. John H. Looney et at. v. W. A. Carpenter.

106 W.Va. 170

State ex rel. John H. Looney et at.

v.W. A. Carpenter

(No. 6413)

Supreme Court of Appeals of West Virginia.

Submitted October 10, 1928.

Decided October 16, 1928.

1. Sheriffs and Constables County Court Must Fill Va-

cancy in Office of Sheriff by Reason of Failure to Give New or Additional Official Bond After Notice (Code, c. 10, § 20).

Where the sheriff of a county has been required to give new or additional official bond, and after being duly notified of the requirement, has failed or refused to give such new or additional bond within the reasonable time required, or any extension thereof, the office becomes vacant under section 20, Chapter 10, Code, unless the requirement has been withdrawn, and it thereupon becomes the duty of the county court to fill the vacancy. (p. 185.)

2. Mandamus Person Appointed to Fill Vacancy in Sheriff's

Office and Qualifying According to Law is de Jure Sheriff and May be Inducted Into Office by Mandamus; Mandamus May be Invoked to Assert Right to Office by Person Having Prima Facie Right Thereto. (Sheriffs and Constables, 35 Cyc. p. 1504.)

In such case the person who has been regularly appointed to fill the vacancy and who has qualified according to law is the de jure sheriff and may be inducted into the office by mandamus. A person having a clear prima facie right to an office evidenced by a valid certificate or order, or other legal evidence of his right issued by the proper authority, may invoke mandamus to assert his right to possession of the office. (p. 185.)

(Mandamus, 3 8 C. J. § 29 0.)

3. Same Existence of Another Remedy to Bar Relief by Man-

damus Must be Adequate and Appropriate to Circumstances of Particular Case.

In order that the existence of another remedy shall bar relief by mandamus, that other remedy must be adequate in the general sense of the term and appropriate to the circumstances of the particular case. (p. 185.)

(Mandamus, 38 C. J. § 32.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Original mandamus by the State on the relation of John II. Looney and others against W. A. Carpenter.

Peremptory writ awarded.

John T. Simms and W. S. Ryan, for relators.

Grover F. Hedges and Harper & Baker, for respondent.

Lively, President:

The alternative writ requires W. A. Carpenter to turn over to relator John II. Looney the keys to the sheriff's office, the books, records, moneys and other properties in his custody as sheriff of Roane County, or show cause why he should not do so.

The proceeding is based on a failure of Carpenter to give additional bonds as sheriff of Roane County, required of him by the county court under section 20, Chapter 10, Code, which section reads as follows:

'' The court, board or officer by whom any official bond is required by law to be approved, or the successor of any such officer may at any time require from any officer by whom such bond may have been given, a new bond, or an additional bond to that already given, to be approved by such court, board or officer, or the successor of such officer. If the officer so required to give a new bond, or to give such additional bond, shall, after being notified of the requirement, fail to comply therewith within the time required, his office shall be deemed vacant unless the time for giving such new or additional

bond be extended or the requirement withdrawn. * * * "'

Carpenter was duly elected sheriff in 1924 and gave bond as sheriff-treasurer, sometimes called the sheriff's general bond, for $25,000, and the school bond (section 183, Chapter 2, Acts 1919) for a like sum, both with sureties approved by the county court, and entered upon the duties of his office. Various audits were made of the affairs of his office by the state tax commissioner as inspector of public offices, one of which was made in June, 1926. The second audit filed Oc- tober 28, 1927, found a shortage of $35,194.34; another audit filed January 30, 1928, showed a shortage of $33,397.02; and another filed July 31, 1928, showed a shortage of $33,632.98. After the last audit suit was instituted against the sheriff and his bondsmen for the sum shown by the audit; and later an indictment for embezzlement was found by the grand jury against Carpenter at the September, 1928, term of the circuit court. About $400,000 of public moneys comes into the hands of the sheriff annually. Under these circumstances the county court served notice on Carpenter requiring him to appear at a special term September 8, 1928, for the purpose of giving two additional bonds, each in the sum of $25,000, and requiring him to give such bonds in pursuance to its order of August 20, 1928, also served on him. Carpenter appeared in person on that day, and asked for additional time which was given him until September 15, 1928, at which time he appeared and announced that he was unable to give the additional bonds. The court then adjourned to September 17th. The president and members of the court together, during the adjournment of the court, requested relator Looney to fill the unexpired term. When the court convened on September 17th, Carpenter appeared and stated that he might be able to give the additional bonds required; adjournment was had from day to day for the purpose of giving time to Looney to bring his sureties into court. On October 3rd the court sat for the purpose of passing upon the sufficiency of Looney's sureties, when Carpenter by attorney appeared and tendered two bonds with certain sureties, whereupon the court investigated the land books and records of the county touching the sufficiency of the sureties of the bonds tendered, and on the following day, October 4th, Carpenter again appeared and tendered the affidavit of Poole and the other sureties on the bonds, and asked for time to bring in the proposed sureties for examination. The court declined to give further time, and found of record that the sureties on the bonds so tendered were insufficient. Whereupon the court declared the office vacant, and appointed Looney to fill the vacancy, who thereupon qualified in the manner prescribed by law, and an order was entered ordering Carpenter to turn over the office, its books and moneys to Looney, and the court caused attested copies of the order to be delivered to both Carpenter and Looney. Carpenter refused to vacate the office, or obey the order, and this writ followed.

Carpenter's return to the writ denies that he is in arrears as shown by the audits of the tax commissioner; denies that his original bonds were insufficient; admits the pendency of a suit to recover the alleged shortage; admits that the indictment was made and that he has given bond to answer it; and denies that Looney is entitled to the office by virtue of the court's proceedings and orders. The return says that he had much difficulty in securing sureties for the additional bonds required because of the secret attempts of one or more members of the court in inducing prospective sureties not to go on the bonds, and to induce others who had signed to withdraw; and that for that reason he asked for and obtained an extension of time until the 15th of September, but was then unable to do so, and asked for a further extension which was denied. Upon learning that Looney was preparing to give bond other than by a bonding company, he renewed his efforts to get bondsmen, and on October 3rd tendered sufficient bonds, which were refused. The return says that said bonds so tendered were not refused because of the insufficiency of the sureties, but that the court was induced and persuaded to, and actually did, arbitrarily, capriciously and fraudulently refuse to accept the bonds. The replication to the return denies that any member of the court was induced to or did arbitrarily, capriciously or fraudulently refuse to accept the bonds tendered on October 3rd; or that any member of the court importuned or suggested to any person not to go on Carpenter's bonds or retire therefrom; on the contrary it avers that all members were friendly and...