State Ex Rel. Thomas v. Wysong

I agree that the relator is clearly entitled to the writ which he seeks. My process of arriving at this conclusion, however, is not identical with, or parallel to, that expressed in the majority opinion. The distinction is, I think, of sufficient importance to justify this note.

In my judgment, the questions properly arising herein thus become very narrow and, I think, relatively simple. The relator's petition shows in him perfect title to the office of attorney general. He has the proper citizenship, residence and age; he has been regularly nominated and elected, and was so declared by the sole tribunal created by the Constitution and the statutes to make such finding and declaration. He took and filed with the proper official the required oath, and then performed the first duty incumbent upon him — he attempted to take actual possession of the attorney general's office rooms and the papers, records and other things pertaining thereto, but was resisted. These steps did not simply entitle him tobecome attorney general; they made him actually attorney general. The consent of his predecessor was not necessary to his succession, nor could any one questioning his title to the office make him any less attorney general by withholding possession of the office rooms, papers and furniture appurtenant thereto. The relator's showing of title to the office of attorney general is perfect.

This is not to say that such a showing cannot be assailed. In fact, such prima facie case may be attacked either before or after a candidate's induction into the office, provided it is done directly, and not collaterally. The statute provides explicitly that before a candidate for the office of attorney general has been declared elected, his right to the office may be contested, and provides the tribunal and proceedings for such a contest. Code, 3-9-13. Ineligibility to hold the office is expressly made a ground for such contest. Code, 3-9-2;Halstead v. Rader, 27 W. Va. 806; Dryden v. Swinburn, 15 W. Va. 234. If any disqualification for such office shall arise, or be discovered, after the candidate's induction, the statutory remedy is perfectly plain: "Any state officer holding any elective office (except the governor, any judge, or a member of the legislature of this State) may be removed from office, by the governor, in the manner provided in the following section: (a) when disqualified from holding the office under any provision of the Constitution of this State, or any law now in force, or which may hereafter be enacted, whether such disqualification arose before or after his induction into office; * * *." Code, 6-6-5.

The proper lawful method, therefore, of raising the question here sought to be brought into controversy, whether before or after he is declared elected, is, by statute, clearly assigned to other and different tribunals. I am not overlooking the pronouncement of this Court in the case of Hall v. Stepp,105 W. Va. 487, 143 S.E. 153, which might be construed as adverse to this position. That case, however, was in this Court on appeal and not by way of original jurisdiction. The circuit court is one of general jurisdiction, while this Court has appellate jurisdiction only, except in specified cases. We are not given any power by the Constitution or by any statute to hear originally contests over any public office, and I think it necessarily follows that we cannot do so incidentally under the guise of hearing an application for a writ of mandamus to vindicate the right of the relator to the possession of the office rooms, furniture, papers and records incidental to his office. Our constitutional jurisdiction cannot be enlarged by the subterfuge of expanding the scope of the writ of mandamus. If this election contest can be thus thrust on us, we are thereby exposed to the imposition of a like contest over any other office in the State of West Virginia. This thing has never before been done, and I prefer not to be decoyed into an unexplored domain where I am solidly convinced we cannot constitutionally go.

Further, in my judgment, not only does the relator's petition make a perfect case for the relief he asks, but also the respondent's answer wholly fails to present any defense thereto. This answer simply asserts that the relator is ineligible to be attorney general in (1) that he is a captain in the Army of the United States under an appointment by the President to be such during the President's will and pleasure, or until six months after the termination of the present war, and (2) that while he continues to be such captain it will be impossible for him to reside at the seat of government of this State, as required by the Constitution. It is, therefore, claimed that to permit him to be, or to become, attorney general would be in derogation of two provisions of the Constitution: (1) Article VII, Section 1, which provides that the attorney general and certain other executive officers "shall reside at the seat of government during their terms of office"; and (2) Section 4 of the same Article, which provides that none of the executive officers mentioned, including the attorney general, "shall hold any other office during the term of his service". But it will at once appear that neither of these constitutional provisions relates to matters precedent to becoming an executive officer, but each provides wholly for matters which they must do, or refrain from doing, while they are such. These provisions establish, not conditions of eligibility, but restriction of action after coming into office. They are, thus, matters of defeasement, not things precedent. The provision in regard to residence does not say that no person may become an executive officer of the State unless he resides at the seat of government, and the other does not say that the holder of another office cannot become an executive officer of the State. If one, who in fact is such officer should refuse to reside at the seat of government, he would, of course, be guilty of violating his constitutional duty and be subject to removal or impeachment; and if he should attempt to acquire or hold an additional office, he would certainly become subject to a like penalty. The majority opinion very correctly holds that the constitutional requirement as to residence cannot be considered at this time. The provision of the Constitution as to holding another office is of precisely the same substance and form.

I think these conclusions dispose of the whole question here involved, no matter how the relator's captaincy is to be characterized. Whether it is an office within the constitutional provision or not such office, the result is the same. If not an office, the answer is, of course, futile, and if an office it is equally insufficient, since the restrictions mentioned in the Constitution are subsequent, not precedent. I would go no further in this case. To continue to a determination of whether relator's office is such as continued holding of it will forfeit the position of attorney general of this State, is, in my view, a mere gratuity. Considering the vast multitude of federal offices, civil as well as military, now held by citizens of this State, the question becomes of supreme importance. I do not wish to be considered as committed to any conclusion on the subject by this concurrence in the issuance of the writ in this case. I think the question is not properly involved here. Accordingly, I agree that the writ should issue, but I do not concur in the legal proposition embodied in the syllabus.