State Ex Ret. J. IT. Hall v. County Court Of Gilmer County. Opinion Filed

• Decision Date: 28 December 1920
• Docket Number: No. 4255.,4255.
• Citation: 87 W.Va. 437
• Parties: State ex ret. J. IT. Hall v. County Court of Gilmer County et al. Opinion Filed
• Court: West Virginia Supreme Court

87 W.Va. 437

State ex ret. J. IT. Hall

v. County Court of GilmerCounty et al.Opinion Filed

No. 4255

Supreme Court of Appeals of West Virginia.

Submitted December 28, 1920.

Decided December 28, 1920.

January 12.. 1921.

1. Officers Contest Does Not Prevent Contestee's Induction Into Office.

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, (p. 439.)

2. Mandamus Writ Lies to Enforce Right of Person Elected to Office.

If a person who thus shows prima facie legal right to the office is denied induction into such office, he may enforce such right by mandamus, (p. 441.)

3. Officers One Eailing to File Expense Account is Not Per-

manently Disqualified From Holding Office.

Although sections 8-b (6) and 8-b (8), chapter 5, Code 1918, exact promptness in the preparation and delivery of the expense account of every candidate for public office, the statute, when read and considered in its entirety, manifests no express or implied determination to disqualify permanently one who is tardy in that respect from discharging the functions and receiving the emoluments of the office to which he has been elected, but only until he has filed the required statements, (p. 439.)

Mandamus by the State, on the relation of J. H. Hall against the County Court of Gilmer County and others.

Writ awarded.

M. B. Morris, J. I). Jones, and Linn Brannon, for relator. L. II. Barnett and W. W. Brannon, for respondents.

Lynch, Judge:

Having received a substantial majority of the votes cast by the qualified electors for the office of sheriff of Gilmer County, at the election held and conducted November 2, 1920, and the certificate showing the result of such election as between himself and J. F. Vanhorn, his only opponent or rival candidate, and having taken the formal oath of office and executed the required bonds, J. H. Hall, the relator, moved the county court to accept and approve these essential prerequisites tendered by him for approval and to permit him to be inducted into the office for the term beginning on the first day of January, 1921. This motion the court refused to grant, and in response to the command of the alternative writ heretofore awarded the court and its several members undertake to justify the refusal upon four several grounds: (1) That Hall wTas not a candidate in the preceding primary for nomination as a candidate for the office of sheriff of the county; (2) was not named or nominated as such candidate within twenty days thereafter by the county executive committee of the political party with which he affiliates; (3) that there was pending, though not docketed, a notice served upon Hall of a contest by Vanhorn of Hall's election to the office; and (4) that Hall failed to file with the clerk of the county court within not less than seven and not more than fifteen days before the primary and general elections the itemized and verified detailed statement of the expenses incurred and obligations assumed by him in each election and of other information required by section 8b (6), chapter 5, Code 1918.

The first and second objections cannot avail by way of justification of the court's refusal of affirmative action upon Hall's motion, or warrant like action by this court by way of favorable consideration of respondents' insistence upon lack of jurisdiction to award its compulsory process to enforce the induction of Hall into the office he was elected to fill. For, as held in Trunick v. Town of North View, 80 W. Va. 9, the canvass of election returns, ascertainment and declaration of the result, and issuance of the certificate of election to a successful candidate, the taking of the necessary oath, the execution and delivery of the necessary bonds as and when required, prima facie entitle such candidate to be admitted into office. Hall was in possession of all these essential prerequisites when he moved the court to grant him permission to quality preparatory to the discharge of the duties of the position for which he was elected.

Likewise, the third objection is untenable, according to the rule established in Griffith v. County Court, 80 W. Va. 410, in accord...