State ex rel. Porter v. Bivens, 12659

• Decision Date: 27 June 1967
• Docket Number: No. 12659,12659
• Citation: 155 S.E.2d 827,151 W.Va. 665
• Parties: STATE ex rel. Alvis PORTER v. W. E. BIVENS and William C. Dingess, etc., the County Court of Logan County, etc., et al.
• Court: West Virginia Supreme Court

Page 827

155 S.E.2d 827

151 W.Va. 665

STATE ex rel. Alvis PORTER v. W. E. BIVENS and William C. Dingess, etc., the County Court of Logan County, etc., et al.

No. 12659.

Supreme Court of Appeals of West Virginia.

Submitted March 31, 1967.

Decided June 27, 1967.

Syllabus by the Court

1. Mandamus is the proper remedy to admit to office a person who shows a clear prima facie legal right to an office and who is wrongfully excluded from it.

2. 'The pendency of an election contest by one candidate against another for the same office does not adversely affect the right of the contestee to be inducted into the office, if, upon the face of the returns duly canvassed, the board of canvassers ascertains the result to be favorable to him, and so declares upon its record, and issues to him the required certificate, and he otherwise complies with all preliminary legal requirements.' Point 1, syllabus, State ex rel. Hall v. County Court of Gilmer County, 87 W.Va. 437 (105 S.E. 693).

3. If a person who shows prima facie legal right to an office is denied induction into it, he may enforce such right by mandamus.

4. Enforcement in mandamus of the prima facie legal right of a person to be admitted to an office is not conclusive of his right to continue to hold such office and will not bar the trial of his right and title to such office in a proper proceeding instituted against him by another person who also claims the right and title to such office.

5. In a mandamus proceeding against a commissioner of a county court holding over after the expiration of his term of office, in which the petitioner shows a clear prima facie legal right to be admitted to such office in that he holds a certificate of election, and has duly qualified for such office by taking the official oath and giving the required bond, the prima facie legal right of the petitioner to such office can not be defeated by an answer which admits the prima facie right but contains allegations of fact which involve the ultimate title of the petitioner to hold the office; and such answer is demurrable if it alleges only such facts as would, if established, defeat the ultimate title of the petitioner in a proper proceeding to try such title.

Slaven, Staker & Smith, Zane Grey Staker, Williamson, for relators.

William L. Jacobs, Parkersburg, Naaman J. Aldredge, Logan, for respondents.

HAYMOND, Judge.

This is an original mandamus proceeding instituted in this Court, in which the petitioner, Alvis Porter, seeks a writ to compel the defendants, W. E. Bivens and William C. Dingess, Commissioners of the County Court of Logan County, The County Court of Logan County, and W. E. Brewer, to recognize the petitioner as a member of the County Court of Logan County and to admit him to that office as such member, and to compel the defendant W. E. Bivens to vacate the office of Commissioner of the County Court of Logan County and surrender such office to the petitioner pending the conclusion of an election contest instituted by the defendant W. E. Brewer in the County Court of Logan County and which has not yet been determined.

Upon the verified petition and the exhibits with it, consisting of copies of the certified returns of the General Election held November 8, 1966, of an order of the County Court entered March 14, 1967 filing a notice of election contest and refusing to qualify the petitioner for membership on the County Court until after the conclusion of the election contest for the stated reason that the petitioner is not qualified for such office, of the oath of office administered to the petitioner on March 14, 1967 by the Clerk of the Circuit Court of Logan County, and of an order of that court entered March 15, 1967 approving the official bond in the penalty of $5,000.00, executed by the petitioner, this Court, on March 27, 1967 issued a rule returnable before this Court on March 31, 1967. To the petition the defendant W. E. Brewer filed his written demurrer and his separate answer and to the answer of the defendant Brewer the petitioner filed his written demurrer. The defendants W. E. Bivens and William C. Dingess did not file a demurrer or an answer to the petition.

The proceeding was submitted for decision upon the foregoing pleadings and demurrers and the briefs and the oral arguments in behalf of the petitioner and the defendant Brewer and upon the brief in behalf of the defendants W. E. Bivens and William C. Dingess, Commissioners of the County Court of Logan County.

By order entered April 4, 1967 this Court, being of the opinion and holding that the petitioner, notwithstanding the pending election contest, was prima facie entitled to the office of Commissioner of the County Court of Logan County, Judge Calhoun dissenting, awarded a writ of mandamus against the defendants W. E. Bivens and William C. Dingess, Commissioners of the County Court of Logan County, and the County Court of Logan County, which commanded them to admit the petitioner to the office of Commissioner of the County Court of Logan County and commanded the defendant W. E. Bivens forthwith to vacate the office of Commissioner of the County Court of Logan County and to surrender such office to the petitioner.

Though the foregoing order contains no reference to an opinion of this Court, this opinion, which has been prepared because the dissenting judge of this Court filed for publication in the official case reports a dissenting opinion to the decision rendered by such order, is now announced and filed for the purpose of stating the reasons which caused this Court by the vote of its majority to award the writ and to grant the petitioner the relief specified in the order.

As the petitioner seeks only to enforce his claimed prima facie legal right to be admitted to the office of Commissioner of the County Court of Logan County and not to establish ultimate title to such office, the sole question for decision in this proceeding is whether the petitioner has shown a clear prima facie legal right to be admitted to that office as a result of his election to it at the general election in November 1966. If he has, the writ should be awarded; if he has not, the writ should be denied. No question as to the ultimate title to the office or the eligibility or the qualification of the petitioner to hold such office and, after his induction, to continue to occupy it during the term for which he may have been elected, is here involved, although the defendant Brewer, by certain allegations in his answer and statements in its exhibits, undertakes to present that question and to obtain a decision upon it in this proceeding, and a judge of this Court who dissents does so for the principal reason that such question has not been considered and determined by this Court.

In substance the petition alleges that the petitioner ran for the office of Commissioner of the County Court of Logan County as the candidate of the Democratic Party against the defendant Brewer, the candidate of the Republican Party, at the general election in November 1966; that after the conclusion of the canvass of the election returns and a recount demanded by the petitioner, the board of canvassers of that county found and determined upon the recount that he had received 9017 votes and Brewer had received 8794 votes for such office and issued a certificate of election to the petitioner; that immediately after the adjournment of the board of canvassers, the county court met in session, at which a notice of contest of the election was filed by the defendant Brewer and served upon the petitioner; that upon motion of counsel for the defendant Brewer, the county court by vote of the two defendants Bivens and Dingess, the other commissioner dissenting, refused to qualify the petitioner or to accept his certificate of election and sustained a motion to bar petitioner from his seat as a commissioner of the county court; that on March 14, 1967 the petitioner took the oath of office which was duly administered by the clerk of the circuit court of Logan County who signed the requisite certificate of the administration of such oath and the petitioner undertook to file such certificate with the county court and its deputy clerk who, at the direction of the defendant Bivens, refused to accept such certificate; that on March 15, 1967 the petitioner appeared before the circuit court of Logan County and executed a proper official bond with surety in the penalty of $5,000.00 fixed by the circuit court which was approved by order of that court, and that by reason of the foregoing the petitioner, having received a certificate of election, taken the prescribed oath and given bond in the penalty and with surety approved by the circuit court, is entitled to be inducted into the office of Commissioner of the County Court of Logan County.

The petitioner prays that he be granted that relief against the defendants Bivens and Dingess as Commissioners of the County Court of Logan County and that the defendant Bivens be required to vacate the office to which the petitioner was elected and to surrender it to the petitioner pending the conclusion of the contest of election.

As already indicated the defendants Bivens and Dingess did not answer or deny the allegations of the petition.

The separate answer of the defendant Brewer does not deny the material facts alleged in the petition relating to the election of the petitioner and his action in qualifying by taking the oath and giving bond, except to the extent that the answer charges, in effect, that the petitioner's action in taking the oath and in giving bond, contrary to the order of the county court refusing him permission to do so, was premature, improper and illegal and that as his surety on the bond is now seeking its cancellation, the petitioner has not given a valid and proper bond. The answer also contains a general denial and a general allegation that the petitioner is not entitled to be...