State v. Matthews
| Decision Date | 23 March 1898 |
| Citation | 29 S.E. 994,44 W.Va. 372 |
| Parties | STATE ex rel. DEPUE v. MATTHEWS. |
| Court | West Virginia Supreme Court |
Submitted January 14, 1898
Syllabus by the Court.
1. In a proceeding by way of an information in the nature of a writ of quo warranto against a person who is claimed to have intruded into or usurped the office of sheriff of a county such proceeding must be at the relation of some person interested, otherwise than as a citizen and taxpayer, unless such proceeding is instituted at the instance of the attorney general or the prosecuting attorney of the county.
2. Where two parties are opposing candidates for the office of sheriff, and the one receiving the highest number of votes for the office disqualifies himself from holding the same by contracting to farm or sell the office or a portion thereof such fact does not confer any interest in the office on the party receiving the minority of the votes cast at the election.
Error to circuit court, Roane county; Reese Blizzard, Judge.
Quo warranto by the state, on the relation of Beniah Depue against W. B. Matthews. From a judgment for defendant plaintiff brings error. Affirmed.
Geo. F. Cunningham and Wm. A. Parsons, for plaintiff in error.
Walter Pendleton, for defendant in error.
Beniah Depue and W. B. Matthews were opposing candi dates for the office of sheriff of Roane county at the general election held on the 3d day of November, 1896. Said Matthews received a majority of all the votes cast at said election for said office, and was declared elected by the county court of said county, qualified, and gave bond, and was authorized to enter upon the duties of sheriff of said county on the 1st day of January, 1897. On the 30th day of March, 1897, said Beniah Depue applied by petition to the circuit court of said county for leave to file an information in the nature of a writ of quo warranto against said William B. Matthews,and on that day leave was granted said Depue to file his petition and information accompanying the same under section 9 of chapter 109 of the Code, and directed summons to issue and be served on said Matthews, together with a copy of said information as directed. The said Beniah Depue, after stating the facts above mentioned in regard to his opposing said Matthews at said election for the office of sheriff, also alleged: That at the time said election was held, and at the time the petition was presented, he was a qualified voter and taxpayer of said county, and duly qualified to hold said office, was over 35 years of age, and had resided in said county all of his life. That after the said Matthews became a candidate for said office, about the month of August, 1896, while he was such candidate, and before the said election was held, and while the said Matthews was expecting to hold said office of sheriff, he did enter into a contract or agreement with two parties therein named, whereby he agreed that if he should be elected to the office of sheriff of said county, and if he should become such sheriff, then he would sell and let to farm unto said parties the said office of sheriff of said county for the term aforesaid, either in whole or in part, as said parties might elect; and, if they should elect not to buy or take to farm the whole of said office for the said term, then they should buy and take to farm all of said office except the district therein known and designated and called "Curtis District," the same being one of the districts of said county of Roane; but, if said parties should elect to buy and take to farm the whole of said office for said county, then they should pay unto said W. B. Matthews a large sum of money, to wit, the sum of $500. And the said William B. Matthews did agree and contract to sell and to let to farm the said office in whole or in part unto said parties as they might elect, upon the terms and conditions above stated; and that, by entering into said contract with said parties, said Matthews did thereby become disabled from holding the said office of sheriff for the term aforesaid, under section 5 of chapter 7 of the Code of West Virginia. That, at said election, Matthews received a majority of all the votes cast for said office, and was afterwards duly declared elected to the office of sheriff for the term aforesaid, and on or about the 14th day of November, 1896, gave bond and took the oaths required by law before the county court of said county as sheriff for said term, to commence the 1st day of January, 1897, and about that time did sell and let to farm unto the said parties the whole of said office of sheriff for the term aforesaid, for the sum of $500. That he did not learn of the facts above stated until after the said Matthews had qualified and given bond as sheriff of said county, and until about the 1st day of January, 1897; and he charges that, under said section 5 of chapter 7 of the Code, the said Matthews, by selling and letting to farm the office of sheriff, aforesaid, became disabled and disqualified from holding the said office for the term aforesaid, and was and is ineligible thereto. Said petitioner also presented with his petition the affidavit of W. P. Pool, stating and showing that said Matthews had made a contract with said parties to sell said office for the sum of $500, which affidavit, he alleges, was shown to said Matthews by a friend of his, and said Matthews admitted that said affidavit stated the truth; and, notwithstanding he had thus become disabled from holding said office, he appointed three deputies, and on the 1st day of January, 1897, entered upon the office of sheriff of said county for the term aforesaid, and now holds, exercises, and claims the said office of sheriff; and that said Matthews did thereby intrude into and usurp said office, as contemplated in the fourth clause of the sixth section of chapter 109 of the Code; and that, under the ninth sec tion of said chapter, said petitioner was entitled to file an information in the nature of a writ of quo warranto against the said W. B. Matthews, and to cause him, by proper legal proceedings, to be ousted from the office into which he has intruded and usurped as above set forth; and petitioner presented to the court an information which he was advised was proper to be filed, and submitted the same to the consideration of the court, and prayed leave to file an information in the nature of a writ of quo warranto against the said W. B. Matthews, and that proper proceedings might be had thereon under the law, in the name of the state of West Virginia; that an order should be made filing such information, and awarding a summons against said W. B. Matthews. On the 30th day of August, 1897, said Matthews, by counsel, demurred to said petition and information, which demurrer was sustained; and the petitioner excepted and asked leave to amend the information and writ aforesaid by inserting the name of the prosecuting attorney of Roane county in the petition and information, at the relation of petitioner, and that the same might proceed in the name of said prosecuting attorney,at the relation of said Beniah Depue; and the prosecuting attorney, in open court, declined to permit said amendment to be made in his name, and said leave and motion were refused by the court, and said Depue excepted. Said Depue also moved the court for leave to amend the information and writ in said proceeding by substituting the name of the prosecuting attorney of Roane county in lieu of his name as relator therein; but said prosecuting attorney objected, and declined to permit the said amendment to be made in his name, and thereupon said leave and motion were also refused court, and said Depue excepted, and also moved the court for leave to amend his said petition, by stating therein that the prosecuting attorney of Roane county declines and refuses to proceed and prosecute a petition, proceeding, and information in the nature of a writ of quo warranto against the said W. B. Matthews, which leave and motion were also refused by the court, and said Depue excepted; and, the said relator not desiring to make any other amendment, it was considered by the court that the said writ be quashed, and that said petition, information and proceeding be dismissed, with costs, and the said Depue applied for, and obtained, this writ of error.
The first error assigned and relied on by the plaintiff in error is that the circuit court erred in sustaining the demurrer to the said petition and information, and in quashing the writ, and dismissing the petition, information, and proceeding, and in rendering judgment for costs against petitioner. A proper solution of the questions raised by this assignment of error involves the construction of the statute under which this proceeding was instituted. Section 9 of chapter 109 of the Code provides that, ...
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