state constitutional provision limiting sheriff to "two consecutive full terms" could not be circumvented through resignation of sheriff shortly before end of second term
How later courts described this case
- state constitutional provision limiting sheriff to "two consecutive full terms" could not be circumvented through resignation of sheriff shortly before end of second term
Written by the judges who cited it.
Later courts went against this
Overruled on other grounds by State ex rel. Booth v. Board of Ballot Commissioners of Mingo County, 156 W. Va. 657 (1972)
145 W.Va. 498, 116 S.E.2d 398 (1960), overruled on other grounds, State ex rel. Booth v. Board of Ballot Commissioners, 156 W.Va. 657, 677, 196 S.E.2d 299, 312 (1973); Syl. pt. 1,
Overruled on other grounds by State Ex Rel. Cline v. Hatfield, 145 W. Va. 611 (1960)
145 W.Va. 498, 116 S.E.2d 398, overruled on other grounds, State v. Hatfield, 145 W.Va. 613, 116 S.E.2d 703 (1960).
The opinion
Beery, Judge,
dissenting:
I respectfully dissent from the majority opinion in this case, because it is in opposition to prior decided cases dealing with the same matter and does not speei- *512 fically overrule such, cases. It therefore tends for confusion in such matters for both the bench and the bar.
In the first place, the writ of mandamus is used against the board of ballot commissioners to prohibit them from placing the name of the Republican candidate for sheriff on the ballot, after a certificate of nomination regular on its face had been issued, received by the candidate and the result of the primary election recorded, showing such candidate regularly nominated. The ballots have not been made up and the names of the candidates have neither been placed on nor omitted from the ballot.
This Court has held in many recent cases that the board of ballot commissioners has no authority to inquire into the qualifications of a candidate and refuse to place his name on the ballot. State ex rel. McKnight v. Clark et al. as Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 103 S. E. 399 ; State ex rel. Lockhart, Sr. et al. v. Rogers, Mayor, et al., 134 W. Va. 470 , 61 S. E. 2d 258 ; State ex rel. Harwood v. Tynes, 137 W. Va. 52 , 70 S. E. 2d 24 ; State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434 , 108 S. E. 2d 788 .
In the Schenerlein case there was a dissenting opinion, and the holding of the case at bar is in effect the same as the dissenting opinion in the Schenerlein case.
The majority opinion cites the case of State ex rel. Pack v. Karnes, 83 W. Va. 14 , 97 S. E. 302 , as authority for granting the writ of mandamus prohibiting the board of ballot commissioners from placing the candidate’s name on the ballot, without overruling the case of Martin v. White, 74 W. Va. 628 , 82 S. E. 505 , which holds just the opposite. Then too, the reason for the granting of the writ of mandamus in the case of State ex rel. Pack v. Karnes, supra, has been entirely discredited by this Court in the cases of State ex rel. Hall v. Gilmer County Court, 87 W. Va. 437 , 105 S. E. 693 ; Varney v. Mingo County Court, 102 W. Va. 325 , *513 135 S. E. 179 ; State ex rel. Bumgardner v. Mills, 132 W. Va. 580 , 53 S. E. 2d 416 . However, the reason given for the disqualification of the candidate in the Back case has never been specifically overruled by this Court.
It is true that the case of Adams v. Londeree, 139 W. Va. 748 , 83 S. E. 2d 127 , indicates that a writ of mandamus would lie in a case to compel a board of ballot commissioners to take the name of a candidate off the ballot, but in that case the board had performed its duties and placed the name of the candidate on the ballot, and it was cited and distinguished in the Schenerlein case. However, I do not think the writ of mandamus should be used in any case to compel the board of canvassers or any other officer or body to do something which it is without authority to do, or which would constitute an illegal act. See State ex rel. Schenerlein v. City of Wheeling, supra, and State ex rel. Minter L. Wilson v. The County Court of Barbour County, et al., 145 W. Va. 435 , decided by this Court on July 6, 1960.
If it is the intention of the decision in this case to hold that a writ of mandamus will lie to compel a board of ballot commissioners to place the names of candidates on the ballot, to remove them, or not to place them on the ballot in the first instance, which a careful reading of the opinion would indicate, then I think that the decided cases holding to the contrary should be specifically overruled, in order to clarify the law pertaining to such matters.
In the case of State ex rel. McKnight v. Clark et al. as Board of Ballot Commissioners of Wetzel County, 86 W. Va. 496, 498 , 103 S. E. 399 , dealing with this question, this Court said: ‘ ‘ To hold that such a board possesses this power would be to bring into existence many controversies and contests for which there would never be a reason if this question is left for determination by competent authority after the election.”
It would be much better to inquire into the eligibility of a candidate to hold office after a general election *514 and not after a primary election. In the first place, he may never he elected and the inquiry, of course, would he entirely unnecessary. Then too, many things could happen either to cure the disqualification in some instances or to eliminate a candidate before a general election, making it unnecessary to employ the writ of mandamus to test the qualification or eligibility of a candidate to hold office before he is elected.
For the reasons stated herein, I would have refused to grant the writ.
I am authorized to say that Judge Haymond concurs in the views expressed in this opinion.