Orndorff v. Potter , 125 W. Va. 785 ( 1943 )

In an election contest between Alva W. Orndorff and W. G. Potter, involving membership on the Fayette County Board of Education, the County Court of Fayette County refused to sustain the contention of Orndorff that he had been duly elected a member of said board, but, upon appeal, the Circuit Court of Fayette County adjudged that Potter was ineligible for the term for which he was a candidate and that Orndorff was elected a member of said board and entitled to hold such office. Potter prosecutes this writ of error (erroneously designated an appeal in Code, 3-9-3) to that judgment.

Code, 18-5-1, as amended by Chapter 42-5-1b, Acts of the Legislature of West Virginia, Regular Session, 1941, provided for the election of two members of the board of education for six-year terms, and one member for the four-year term at the general election in 1942. At the time of such election B. C. Peters, a resident of Fayetteville District, had been elected to board membership for a term of four years in November, 1940, and was serving as a member. According to the stipulation in the record, the results of balloting for board membership at the election held on November 3, 1942, are as follows:

The Two Six-Year Terms

Gomer Carson Falls District 6886 W. G. Potter Fayetteville District 5721 Alva W. Orndorff Falls District 4261 F. Rankin Clark Kanawha District 3966

The Four-Year Term

W. H. Haynes Fayetteville District 6827 Geo. T. Lancaster Falls District 3623

There is no contention that Carson was not elected. The instant contest arises over the election of the member for the second six-year term, and the involvement arises because of the statutory inhibition that "no more than two members shall be elected from the same magisterial district". Code, 18-5-1, amended by Chapter 42-5-1, Acts of the Legislature of West Virginia, Regular Session, 1941. In the notice of contest filed by Orndorff in the county court, he based his right to office on the fact that W. H. Haynes had received the highest number of votes for the four-year term, and that since both Haynes and Peters (the incumbent member) were from Fayetteville District, Potter, likewise from the same district, was ineligible to election under the statute, and, therefore, he, Orndorff, was the duly elected member for the second six-year term, having received the third highest number of votes. The stipulation referred to above states that Lancaster did not contest Haynes' election for the four-year term.

Were it not for the inhibitory provision of the statute, both Potter and Haynes would have been duly elected for the six and four-year terms, respectively, but because of Peters' incumbency as a member of the board and his residence in Fayetteville District when elected, it necessarily results that under the state both Potter and Haynes cannot be declared elected. The stipulation asserts that Haynes' election has not been contested, and, of course, the time therefor has now elapsed. Because thereof we assume his election as a member of said board, and hence Potter may not be declared elected within the meaning of the statute: otherwise the inhibitory provision of the statute under consideration would be violated. The trial court held Potter ineligible because he had received less votes than Haynes. While we have already assigned our reason for denying Potter the status of a board member, we think it pertinent to observe that Potter and Haynes were not nominees for the same office and, therefore, the reasoning assigned for denial of Potter's eligibility by the court below is not appealing. But is Orndorff entitled to board membership by reason of Potter's statutory residence disqualification?

In this State in the leading case of Dryden v. Swinburne,20 W. Va. 89, this Court has committed itself to the doctrine that in an election, where the statute does not otherwise provide, a candidate who does not receive a majority or plurality of the votes cast cannot be declared entitled to office, though the candidate receiving the majority of the votes cast be disqualified to assume office. State exrel. Depue v. Matthews, 44 W. Va. 372, 29 S.E. 994, following the holding of this Court in the Dryden case, held (pt. 2 syl.), "Where two parties are opposing candidates for the office of sheriff, and the one receiving the highest number of votes for the office disqualifies himself from holding the same by contracting to farm or sell the office or a portion thereof, such fact does not confer any interest in the office on the party receiving the minority of the votes cast at the election." This rule, in the absence of statute, is one thoroughly consonant with our system of government. It has never been departed from by this Court. In fact, it was recently applied in the case of State ex rel. Clayton v. Neal,122 W. Va. 501, 505, 11 S.E.2d 109. Hence, despite Potter's disqualification, since Orndorff did not receive a majority or plurality of the votes cast for the office for which he was a nominee, he was not elected and is not entitled to prevail in the instant contest. To this extent the circuit court was in error.

For the foregoing reasons, the judgment of the Circuit Court of Fayette County is affirmed in so far as it adjudged Potter's right to office; and in so far as it adjudged Orndorff's right thereto, the judgment is reversed.

Affirmed in part; reversed in part.