The opinion
Calhoun, Judge,
dissenting:
Respectfully, I dissent. The reasons for my dissent, generally speaking, were stated in my dissenting opinion filed in the two combined cases styled State ex rel. Carson v. Wood, 154 W.Va. 397 , 175 S.E.2d 482 , which were decided by the Court on the same day as the instant case.
The indictment charges that Ed Gillespie, the accused, “did intentionally, willfully, unlawfully and feloniously attempt to bribe, Dale Curry, an executive and ministerial officer of the State of West Virginia, being duly qualified and appointed, to-wit: Dale Curry, a Buyer in the Purchasing Division of the Department of Finance and Administration of the State of West Virginia, and who was then and there known by the said ED GILLESPIE, to be such an executive and ministerial officer of the State of West Virginia, * *
As the majority opinion states, Ed Gillespie was indicted pursuant to the provisions of Code, 1931, 61-5-4, which provides that if any person shall bribe, or attempt to bribe “any executive, legislative, judicial, or ministerial officer of this State, or any member of the legislature,” such person shall be guilty of a felony.
The basis of the prohibition proceeding, and of the Court’s decision, is that, notwithstanding the clear allegations of the indictment to the contrary, Dale Curry was not, in fact, “an executive and ministerial officer of the State of West Virginia, being duly qualified and appointed”; that, therefore, the indictment is null and void; and that, the indictment being *428 void, the trial court lacks jurisdiction to proceed further against the accused upon the charge alleged in the indictment.
In this case, the respondents’ answer to the prohibition petition sets forth some of the authority conferred upon and duties performed by Dale Curry as follows:
“Respondents aver that Dale Curry was appointed to the position of Buyer in the Purchasing Division of the Department of Finance and Administration sometime in June, 1961. Having a B.S. in Pharmacy and credentials as a registered pharmacist, he was given the responsibility of establishing a drug purchasing program for all the State spending units for all drugs purchased on behalf of the State throughout the State. He was the first professional pharmacist to occupy a buyer’s position in the Division of Purchasing and past experience had proved that a professional buyer in this area was essential; no other buyer or person in the division was familiar with drugs or medical equipment. At that time there was a total of five (5) buyers in the Division of Purchasing.
“Shortly after said Buyer’s appointment, he began receiving his instructions directly from the Commissioner of the Department of Finance and Administration and was directly responsible to said Commissioner regarding the majority of said Buyer’s duties and functions. In initiating the drug purchasing program said Buyer negotiated directly with drug manufacturers instead of retailers and thereafter established a system of negotiating price agreement contracts with said manufacturers. Pursuant to said procedure, the Buyer sent bid forms to the drug manufacturers, who would return a bid proposal to said Buyer. He would analyze the proposals and select the one he believed fairest, and place his initials thereon. A purchase order was prepared and signed by said Buyer and returned to the Vendor. This completed the transaction and bound the State to the terms of the contract for a period of one year, unless a different period was set forth therein.
“In all of said dealings and transactions with said Vendors, none ever questioned said Buyer’s authority to enter into contracts or otherwise negotiate on behalf of the State and, in fact, believed said Buyer to have such authority, * * *.
*429 “The Purchasing Director had, in fact, delegated and assigned to said Buyer the primary responsibility of executing the statutory and other provisions relating to purchasing and said Buyer did, in fact, exercise such power and authority; the Director never signed purchase orders or otherwise interferred with the performance of the duties or functions performed by said Buyer and when said Buyer accepted a bid from a Vendor and executed a purchase order in accordance therewith, the Director deemed the transaction complete and binding, * * *.
“Said Buyer had been given specific written authority by the Commissioner to sign purchase orders and other documents on behalf of the State to the same extent as had the other Buyers in the Division, shown in Respondents’ Exhibits Nos. 4 and 5, attached hereto and made a part hereof. In addition, at the time the purchase order was signed by the Buyer State funds were encumbered to pay for the items contained therein in accordance with Code, 5A-3-16 and the rules and regulations of the Purchasing Division.
❖ * *
“Respondents admit that the position of ‘Buyer’ is not specifically mentioned in the Code of West Virginia, the West Virginia Constitution, or in any act of the Legislature, or in the Rules and Regulations promulgated by the Commissioner of Finance and Administration or by the Director of Purchasing Division thereof. Respondents aver, however, that the position of Buyer has, for numerous years, been an established position within said Department and said Buyers continue to do all of the purchasing on behalf of the State of West Virginia. The significance and importance of such a position is illustrated by the fact that during the fiscal period 1966-1967, six Buyers in said Department made $22,000,000.00 worth of estimated purchases for the State, as will be more clearly shown by Respondents’ Exhibit No. 6, a table from the Council of State Governments, a study for the National Association of State Purchasing Officials, 1969, page 11, attached hereto and made a part hereof, which exhibit also shows that the position of Buyer is recognized in every State with the exception of Delaware, which does not have central purchasing; that during the fiscal year period 1968-1969, six Buyers in said Purchasing Division accounted for *430 approximately $110,000,000.00 to $120,000,000.00 of transactions and purchases on behalf of the State, * * X”
Despite the clear allegations of the indictment and despite the allegations of the answer which state the source of Dale Curry’s authority, the nature of his position, and the extensive area in which he performed governmental functions and exercised an important part of state sovereignty, the Court holds that the indictment is void and insufficient to confer jurisdiction upon the trial court because, forsooth, Curry’s position was not created “by the legislature.”
The majority opinion in this case and the majority opinion in the Carson cases both assert the proposition that penal statutes should be construed strictly against the state and in favor of the accused. This, in any event, is but a rule of statutory construction. At this point, I apprehend that we are concerned only with clear allegations of an indictment, the only defense being predicated upon matters extraneous to the allegations of the indictment.
The statute involved in this case is in a great measure remedial, designed to assure faithful performance by persons occupying positions in government. It is a statute designed to protect public interests and public funds. The penal aspect of the statute is, in some measure, incidental to the primary, salutary purpose of the statute. The rule relating to strict construction of penal statutes is not a rule to be applied with merciless harshness from the standpoint of the public. It is not a rule which requires that courts reach absurd results. The general rule is stated in 82 C.J.S., Statutes, Section 389, pages 929-30, as follows:
“The rule of strict construction does not require that penal statutes be given the narrowest possible meaning, or require a rejection of the sense of the words best harmonizing with context and end in view. Likewise, the rule of strict construction does not require that penal statutes be unreasonably interpreted, or construed so as to render them ineffective, or construed so as to defeat the obvious intention of the legislature, as found' in the language actually *431 used according to its true and obvious meaning, unless forced by the express language of the statute. Penal statutes should not be subjected to any strained or unnatural construction in order to work exemption from their penalties, or to exclude from their operation cases which the words, in their ordinary acceptation, or in the sense in which the legislature used them, would comprehend. In other words, the rule of strict construction does not require that such statutes be wantonly limited or emasculated and rendered ineffective, absurd, or nugatory. Furthermore, the rule of strict construction is applicable only to doubtful cases, and will not be applied where it would lead to absurd results.”
I would deny the writ of prohibition in this case. I am authorized to state that Judge Berry concurs in the views expressed in this dissenting opinion.