On the record presented, I think it should be held that the contestant Alva W. Orndorff, was elected for the six-year term as a member of the Board of Education.
The Legislature must have intended that three members of the board should be elected at the general election held in November, 1942. Chapter 43, Acts of the Legislature, 1941, so provides. In view of the other provision of the same chapter, that "no more than two members shall be elected from the same magisterial district", which restriction applies to the full board, it should have been, and doubtless was, contemplated by *Page 789 the Legislature that the situation with which we are now confronted might arise in different counties of the State at every election. We should, therefore, endeavor to find a sound basis on which the will of the electorate can be made effective. If neither Potter nor Orndorff was elected, then a vacancy exists and this result should be avoided if possible.
I think it is clear that the Legislature intended to follow the same policy which has been adopted in respect to county courts. Section 22, Article VIII, of our Constitution, provides: " * * * no two of said commissioners shall be elected from the same magisterial district", and then goes on to provide, "and each two or more persons residing in the same district shall receive the greater number of votes cast at any election then only the one of such person receiving the highest number shall be declared elected, and the person living in another district, who shall receive the next highest number of votes, shall be declared elected". In Griffith v. County Court,80 W. Va. 410, 92 S.E. 676, where two commissioners were to be elected, and the party who received the second highest number of votes was ineligible, under the constitution, to hold the office, the party who received the third highest number of votes was declared elected. Section 23a, Article IV, Chapter 42, Acts of the Legislature, 1942, applying to the nomination of members of the board of education in a primary, provides: "In the event of death, withdrawal or disqualification of a nominee for any office appearing on the nonpartisan ballot, subsequent to the primary, and prior to the general election, the person or persons receiving the next highest respective votes in the primary election for the position in question shall be deemed nominated". For some reason, Section 4a of Article V, of the same chapter, fails to provide for the same situation in the general election. I cannot believe that it was the legislative intent to establish a different policy from that applied by it to the primary. Clearly, there was a legislative omission which makes it possible to nullify the result of an election, and I think we *Page 790 can, with entire propriety, read into the statute the same principle which the Legislature applied to the primary, and which is in line with the constitutional provision with respect to county courts. I realize that this is judicial legislation, but I think it is justified in the present instance.
The case of Dryden v. Swinburn, 20 W. Va. 89, — and subsequent cases upholding the principle therein stated, — is relied on in the majority opinion. I do not question the soundness of that opinion, but I do not think it should be applied to the case at bar. Here the geographical location of the several members of the board is made a test of eligibility to hold office, as in the case of a county court. The only difference is that as to county courts, the test is constitutional, while here it is statutory. This is not important, because the power of the Legislature to create the test cannot be questioned. In the Swinburn case there was no such test. I think in the election of members of the county court and boards of education we are not bound by the Swinburn case.
I am, perhaps, influenced by what I conceive to be the dangers which may result from the application of the majority holding. I apprehend that at every election, many situations similar to the one we are now considering will arise throughout the State, and in many instances elections will prove abortive. This would be unhealthy and disappointing, and, in my opinion, create confusion and turmoil in our educational system. In the case at bar, no question is raised as to the election of Carson for the six-year term. But suppose Carson's election had been contested along with that of Potter. On what principle would we decide as between Carson and Potter? The fact that Carson received more votes than Potter would lead us to hope that we could declare him elected, but there would be no statutory justification for such holding. The right to be elected to an office does not depend on the size of the vote, if the vote is sufficient to elect. The result might be that neither was elected and, therefore, two vacancies in the board created. *Page 791 In such a case the election would be of no effect whatever. Surely the Legislature never intended such a result.