Copley v. Chambers

GtiveN, Judge,

dissenting:

The facts in the instant case are suggestively different from the facts in the cases relied on. In the instant case two constitutionally recognized terms of office intervened between the time the candidate served as a deputy sheriff, and the beginning of the regular term now involved. The defendant Chambers, therefore, was not a candidate for a term succeeding his father, under whom he served as a deputy, but as successor to the person who served the last intervening term. That he happened to have been the person who served that intervening term does not, in my view, bring him within the class of persons declared ineligible by the constitutional provision. The effect of the majority holding is to extend ineligibility to the office of sheriff to a class of persons not intended by the constitutional provision.

The controlling constitutional provision relating to the question involved, the only pertinent provision, Section 3, Article IX, reads: ‘ ‘ The same person shall not be elected sheriff for two consecutive full terms; nor shall any person who acted as his deputy be elected successor to such sheriff, nor shall any sheriff act as deputy of his successor; nor shall he, during his term *688of service, or within one year thereafter, he eligible to any other office * *

It is significant that the only language of that section which is pertinent is the phrase “nor shall any person who acted as his deputy be elected successor to such sheriff”. All language of the section prior to such phrase relates only to the ineligibility of a person who has been elected sheriff for a “full term”. All pertinent language of the section subsequent to such phrase relates only to the ineligibility of the person who was previously elected sheriff to serve as a deputy, or to serve in some other office. Yet, by some reasoning not apparent to me, the majority now reaches the conclusion that a sheriff, the officer against whom the supposed evil was principally directed, may be elected for a “full”, second or consecutive term, provided his first term was at least one day short of a “full term”, or be elected to any part of the succeeding term less than a “full term”, but a person who has served only as a deputy may not serve a single day of the second or consecutive term if he served as deputy for a single day of the prior term. See Gorrell v. Bier, 15 W. Va. 311, cited with approval in the majority opinion, in State ex rel. Duke v. O’Brien, 145 W. Va. 600, 117 S. E. 2d 353, and in State ex rel. Zickefoose v. West, 145 W. Va. 498, 116 S. E. 2d 398.

Yet another anomaly: In State ex rel. Cline v. Hatfield, 145 W. Va. 611, 116 S. E. 2d 703, a majority of this Court held that mandamus was the proper remedy to test the eligibility of Chambers to be elected to the very term of office now involved, and refused to issue a writ requiring the removal of his name from the official ballot, holding, in effect, that Chambers was eligible to be a candidate for election to the office for that term, and that the voters of Mingo County were entitled to vote for him for that office for that term, but, after the election, though he received an almost unexplainable majority vote, the Court now holds him ineligible to have been elected, or to serve, as such officer, and effectively destroys the right of the voters *689of Mingo County to elect a sheriff for that term. Can anyone reasonably argue that such a result was intended by those who framed our election laws, constitutional or statutory?

Though the majority opinion points out a substantial factual difference in the facts in the instant case and those in the Dulce and Zickefoose cases, that the defendant Chambers is not in fact the successor to his father, two separate terms, an appointive term and a (short) elective term having intervened, the only rule of law applied in the instant case is the rule correctly applied in the prior cases.

It is significantly noticed that the pertinent and constitutional phrase says nothing concerning any term of office, regular, short or appointive, though the Constitution clearly makes provision for appointive terms and for elective short terms. The only restriction even indicated is that a deputy shall not be “elected successor” to a sheriff under whom he served as deputy, yet, somehow, the majority converts the meaning of “successor” to the meaning of a “previous term”, and denies eligibility to a person who sought the office after the expiration of two constitutionally provided terms, one appointive and one elective.

It has been suggested that the constitutional phrase pertinent to the eligibility of a deputy, quoted above, was intended to have the same effect as the language used in the provision relating to the ineligibility of a person to the office of sheriff, for the reason that the phrase contains the words “such sheriff”. While it seems clear that the restrictive features as to the respective officers were not intended to be the same, if the suggested intention can be gathered from the whole language, there exists no justification for reaching results exactly opposite as to the ineligibility of a person who has served as sheriff and one who has served as a deputy. The words “full term” should not be accorded one meaning in one case and a wholly different meaning in the other, as the majority actually *690does, though applied to situations covered by the same sentence.

The majority also quotes extensively, and relies heavily on, pertinent statements of individual members of the constitutional convention which adopted the language of the pertinent section. Such history is, of course, helpful in determining the purpose of the adoption of the provision, but, even as indicated in the majority opinion, the views and expressions of individual members of the convention do not necessarily represent or reflect the thinking or intention of the majority who approved the adoption of the language used. Such intention depends on, and must be determined from, the language actually adopted, there being no contention of any ambiguity. The history quoted indicates no report of any committee as to any intention, or any adoption of any recommendation of any committee, as to the intended meaning of the language used, and the statements of the speakers, quoted in the majority opinion, most certainly indicate a view that any restrictions relating to the election of a deputy should be less prohibitive than those relating to the election of a sheriff to succeed himself. Moreover, the purpose of the provision is not in question; only the extent of the restrictions imposed are in any way involved. All apparently agree that the purpose of the provision was to preclude a supposedly objectionable or vicious practice of succession to the office of sheriff. But why should such restrictions be made more prohibitive as to a deputy than as to a person who has served as sheriff? There is most certainly nothing in the statements quoted, or in the language of the constitutional provision, indicating any such intention, and I can think of none.

Further consideration of the proposition necessitating this dissent is found in the concurring opinion in State ex rel. Cline v. Hatfield, supra, and pertinent authorities there cited. Being of the views expressed herein, and in the concurring opinion mentioned, I respectfully dissent.