Webb v. Raleigh County Court
| Decision Date | 21 March 1933 |
| Docket Number | 7533. |
| Citation | 168 S.E. 760,113 W.Va. 474 |
| Parties | WEBB v. COUNTY COURT OF RALEIGH COUNTY et al. |
| Court | West Virginia Supreme Court |
Submitted January 25, 1933.
Syllabus by the Court.
Phrase "remains unreversed," within statute disqualifying person convicted of felony from holding public office held inapplicable to period subsequent to time accused paid full penalty (Code 1931, 6-5-5).
Elected constable, notwithstanding former conviction of felonies for which he paid full penalties, held not disqualified from holding office (Code 1931, 6-5-5).
Code 1931, chapter 6, article 5, section 5, which provides that "No person convicted of *** felony *** shall, while such conviction remains unreversed, be elected or appointed to any office under the laws of this state," is not to be construed to disqualify from holding public office a person formerly convicted of felony and for which he has paid the full penalty of the law.
Original proceeding in mandamus by Clayton Webb against the County Court of Raleigh County and others.
Writ of mandamus awarded.
Lilly & Lilly, of Charleston, for relator.
Clarence W. Meadows and File, Goldsmith & Scherer, all of Beckley, for respondents.
MAXWELL President.
At the November election of 1932, Clayton Webb, relator, was elected constable of Marsh Fork District in Raleigh County. He seeks by mandamus to compel the county court to permit him to give bond and take the oath of office as such constable, the said privilege having been denied him by the court because of his prior conviction of felony.
In 1919 relator was convicted in the criminal court of Raleigh County of burglarizing a store, and was sentenced to two years' confinement in the state penitentiary. In 1929 he was convicted in the circuit court of Boone County of carrying a dangerous weapon on his person (this being a second conviction of such offense, the statute making a second conviction of the offense of carrying dangerous weapons about the person a felony) and was sentenced to penitentiary confinement for one year and one day. There was no reversal of either of the felony convictions, and he received no pardon. He served the term of imprisonment in each instance.
Under the law of this state, is one disqualified from holding public office because of prior conviction of felony, unreversed and no pardon granted, the statutory penalty for the offense having been paid in full?
The right to hold public office is not an inherent right of citizenship, and if there is nothing in a state constitution determinative of the right to hold office, the matter is one for legislative determination. Crampton v O'Mara, 193 Ind. 551, 139 N.E. 360.
Section 14 of article 6 of the Constitution of this state provides "No person who has been, or hereafter shall be convicted of bribery, perjury, or other infamous crimes, shall be eligible to a seat in the Legislature." And section 45 of the same article provides that any person convicted of giving or receiving a bribe "shall, as a part of the punishment thereof, be forever disqualified from holding any office or position of honor, trust, or profit in this State." This latter requirement of the Constitution is carried into our statutory law. Code 1931, 61-5-4 and 5. There is no similar constitutional ban on other public officials, the matter being left entirely for legislative determination.
Our only statutory provision bearing on the subject follows "No person convicted of treason, felony, or bribery in any election, before any court in or out of this State shall, while such conviction remains unreversed, be elected or appointed to any office under the laws of this State; and, if any person, while holding such office, be so convicted, the office shall be thereby vacated." Code 1931, 6-5-5. To paraphrase for the sake of clarity, "No person convicted of *** felony *** shall, while such conviction remains unreversed, be elected or appointed to any office. ***" What does this mean? It is not clear. We are of opinion, however, that the phrase "remains unreversed" should be taken to be applicable to that period of time within which there could be a reversal, and not to a subsequent period of time when there could be no reversal because the accused had undergone the term of imprisonment imposed by the law. Nobody tries to obtain reversal of a conviction of felony after the penalty has been paid. The Legislature, of course, knew this and must be deemed to have used the phrase, remains unreversed, with the intent of giving it a practical and not an infeasible meaning. If the Legislature intended that no person convicted of felony should...
To continue reading
Request your trial