The opinion
Riley, Judge,
dissenting:
In all deference to the majority members of this Court, I dissent from that part of the majority opinion in this case which holds that the contest before the County Court of Mingo County is not premature.
West Virginia Constitution, Article VI, Section 14, provides that: “* * * No person who may have collected or been entrusted with public money, whether State, county, township, district, or other municipal organization, shall be eligible to the Legislature, or to any office of honor, trust or profit in this State, until he shall have duly accounted for and paid over such money according to law.” This provision, in my opinion, does not deal with the right of a person delinquent as to public money to be elected to office. Clearly it provides only a conditional ineligibility of a contestee, who has received a majority of the votes cast in an election, to hold office. Such provision is found at no other place in either the Constitution or the statutory law of this State.
None of the cases cited in the majority opinion is in point with the instant case, nor sustains the position that the instant proceeding is not premature. Dryden v. Swinburn, 15 W. Va. 234 ; Swinburn v. Smith and Dryden, 15 W. Va. 483 , and Dryden v. Swinburne, 20 W. Va. 89 , involve a contest before the County Court of Kanawha County of Swinburn’s election as Clerk of the Circuit Court of that County. The contest was predicated upon *432 the fact that at the time of the election Swinburn was a British subject, and, therefore, not a citizen of the United States and was ineligible to be elected to office, though he had received a majority of the votes cast in the election then under contest. West Virginia Constitution, Article IV, Section 4, provides: “No person, except citizens entitled to vote, shall be elected or appointed to any State, county or municipal office; * * (Italics supplied). There is indeed a wide difference between qualification to be elected to public office, and ineligibility to hold office. That under the holding of this Court in the Dryden cases and in Halstead v. Rader, 27 W. Va. 806 , the contestant Slater in the instant case, even if he should be entitled to and does prevail in the election contest, will not be entitled to the office in contest is of no moment. The statement made in Halstead v. Rader, supra, cited in the majority opinion, which involved an election contest in which the sole ground of the contest was the refusal of' the county court to count certain votes cast at an election precinct that “In Dryden v. Swinburn, 15 W. Va. 234 , this Court decided that, in a case in which the contest was the want of qualification in the person declared elected to hold the office, it was only necessary to set forth the facts in the notice which showed such disqualification, and that the statute in such case did not require the notice to show that the contestant was entitled to the office, * * is to a large extent dictum.
Likewise the cases of Irons v. Fry, 129 W. Va. 284 , 40 S. E. 2d 340 ; Orndorff v. Potter, 125 W. Va. 785 , 25 S. E. 2d 911 ; State of West Virginia ex rel. Miller v. Board of Education of Mason County, 126 W. Va. 248 , 27 S. E. 2d 599 ; and Gorrell v. Bier, 15 W. Va. 311 , should be distinguished from the instant case.
The case of Irons v. Fry , involved Article VIII, Section 23, of the West Virginia Constitution, which reads, in part: “* * * But no two of said commissioners shall be elected from the same magisterial district.” (Italics supplied.) And Chapter 48, Article 4, Section 5, Acts of the Legislature, 1943, amending and reenacting Code, *433 3-4-5, which reads, in part: “* * * That with respect to nominations of commissioners of county courts, no two of such commissioners shall he nominated as the party candidates from the same magisterial district where more than one such commissioner is to be so nominated at any primary election. * * *”. (Italics supplied). The Orn-dorff and Miller cases involved, Code, 18-5-1, as amended and reenacted by Chapter 42, Article 5, Section 1, Acts of the Legislature, Regular Session, 1941, which provides, in part, that: “* * * No more than two members [of county boards of education] shall he elected from the same magisterial district.” (Italics supplied). The -Gorrell case simply held that under West Virginia Constitution, Article IX, Section 3: “A sheriff whose full term of office expired December 31, 1876, is eligible to fill a vacancy in the sheriffalty at an election held the second Tuesday of October, 1878; * * *.”
As stated in the majority opinion: “A majority of the courts in other jurisdictions, -whose decisions appear to constitute the weight of judicial authority, hold that the eligibility of a candidate for office under constitutional and statutory provisions affects the right to hold an office instead of the right to be elected to the office and that, if his disqualification has been removed at the time of the commencement of the term or at the time of his induction into office, his disqualification at the time of the election is immaterial.” The majority opinion cites many cases in support of the foregoing statement, and, in all deference, I am of opinion that the majority opinion is contrary to the decisions constituting the weight of authority.
As to whether this proceeding was prematurely instituted, the majority opinion poses a serious question: Would a contestee be erroneously deprived of his right to hold office, if an election contest, involving a conditional ineligibility is determined finally against the con-testee prior to the beginning of the term for which the contestee was elected, and thereafter, but before the beginning of the term of office, the conditional ineligibility is removed? The majority opinion inaptly answers this *434 question as follows: (1) The county court “could and should protect and safeguard any right of such contestee to remove his ineligibility and disqualification and to hold the office by virtue of an election by providing that the judgment vacating the election shall be effective only in the event the contestee does not remove the ineligibility or disqualification before the commencement of the term of office to which he was returned as elected; and (2) the supposed situation does not and cannot exist in. respect to this election contest. The vice of the first position is found, in Code, 3-9-2, which provides: “A person intending to contest the election of another to any county * * * office, * * *, shall, within ten days after the result of the election is declared, give the contestee notice in writing of such intention, and a list of the votes he will dispute, with the objections to each, and of the votes rejected for which he will contend.” And Code, 3-9-3, provides for the trial of an election contest, and that: “At the final trial of such contest the court shall declare the true result of such election, and cause the same to be entered on the records of the court.”
Where, may it be asked, is there anything in these statutes which provides for a contest involving a conditional ineligibility to hold office? The very language of Section 2, which provides that the contestee’s notice shall set forth a list of the votes which he will dispute, with the objections “to each, and of the votes rejected for which he will contend,” is not consonant with the language of West Virginia Constitution, Article VI, Section 14, which provides: “No person who may have collected or been entrusted with public money, whether State, county, township, district, or other municipal organization, shall be eligible * * * to any office of honor, trust or profit in this State,, until he shall have duly accounted for and paid over such money according to law.”
Nor, in my opinion, is there any merit in the second position taken in the majority opinion, which involves the question as to what would happen if the election contest is completed before the term of office is over. I simply *435 say that the fact that something is not likely to happen should not deter this Court from laying down a general rule, which would prevail if the event posed in the majority opinion should occur. The majority members of this Court have laid down a rule from which the Court may be forced to depart in a case which will invoke the very question suggested in the instant opinion. There is nothing in either the constitutional or statutory law of this State which will permit a county court in an election contest in its final order deciding such contest to put a condition upon the operation of its order. Such a position would prevent finality in the orders of county courts in the matter of election contests, and is .apt to cause confusion and uncertainty, which may result in wrongdoing in both elections and election contests. How, may it be inquired, can a party aggrieved in an election contest, involving a removable ineligibility properly resort to the circuit court where the judgment of the county court, acting in an election contest, contains a defeasance clause?
As hereinbefore quoted, Article VI, Section 14, of the Constitution of this State renders a person ineligible to be a member of the Legislature or to hold an office of public trust until he shall have duly accounted for and paid over public moneys which may have come into his hands according to law. Though not carried into the syllabus, the opinion of the Court in this proceeding by ignoring the words “until he shall have duly accounted for and paid over”, contained in said Section 14, in effect,, has vitiated the constitutional provision by holding that, the ineligibility of the contestee must be removed at or before the commencement of the term of office to which such person may have been elected; It has always been my understanding that an amendment to the Constitution of this State must be submitted to the citizens and voters of the State, and that neither this Court, nor any other body or official, has the power to perform- that function by reading into it words that do not appear therein.
*436 “Where * * * [the Constitution] is clear in its terms and of plain interpretation to any ordinary and reasonable mind, there is no room for construction, and it would be mischievous and unlawful to assume it.” May v. Topping, 65 W. Va. 656, 661 , 64 S. E. 848 . “The interpretation that should be given it [the Constitution] is that which reasonable minds, the great mass of the people themselves, would give it.” May v. Topping, supra.
It is my considered view that the ineligibility of the contestee who has collected public moneys and has not paid over and accounted for the same becomes nonexistent by force of the plain words of the constitutional provision when such person accounts for and pays over such public moneys in accordance with law. The constitutional provision fixes no time for the removal of such ineligibility, and I think it could be done at any time before the term of office commences, after the term of office commences, or at any other time during such term. This position gives effect to the plain words of the Constitution according to their tenor and meaning. There is no ambiguity in the language contained in Article VI, Section 14, and, therefore, no logical or legal basis for the construction adopted in the Court’s opinion.
I am authorized to say that Judge Lovins concurs in this dissent.