323 S.E.2d 600

#### STATE of West Virginia, ex rel. Warren R. McGRAW v. Todd C. WILLIS.

No. 16514.

Supreme Court of Appeals of West Virginia.

Dec. 6, 1984.

*119Paul T. Farrell, Huntington, for relator.

Larry W. George, Baer & Colburn, Huntington, for respondent.

NEELY, Justice:

The election on 6 November 1984 fueled the fires of excitement among political pundits that His Excellency the Governor of West Virginia, John D. Rockefeller IV, newly elected United States Senator, would resign the governorship early to take his Senate seat on 3 January 1985 — the commencement of the United States Senate’s term. This possibility confronted West Virginia with the question of who would serve as interim governor because West Virginia does not inaugurate her governor until 14 January 1985.

This case arose in the posture of a writ of mandamus to compel the Clerk of the Senate of the State of West Virginia to continue to pay the relator, Warren McGraw as Senate President, after the conclusion of the current Senate president’s term *as a member*of the Senate. However, this ease really is about gubernatorial succession.

Although Governor Rockefeller has emphatically denied any intention to vacate his office prematurely, the petition in this case was filed before the Governor’s announcement and, because it is foreseeable that the question of succession may surface again, the case is ripe for adjudication.

Ordinarily, the State faces no dilemma. *W.Va. Const,*art. VII, § 16 and *W.Va. Code*3-10-2 [1977] provide that upon the resignation of the Governor, the President of the Senate acts as governor “until the vacancy is filled.” However, the current President of the Senate, the petitioner in the case before us, did not seek reelection to his West Virginia Senate seat. The petitioner’s term as Senator expires on 30 November 1984. It is, nonetheless, the opinion of this Court that the petitioner’s term as President of the West Virginia Senate continues until our Senate reconvenes in regular session on 9 January 1985 and his successor is sworn into office under *W.Va. Const,*art. VI, § 18. Therefore, should a vacancy in the office of Governor arise the President of the West Virginia Senate would become this State’s chief executive.

*W. Va. Const,*art. VI, § 18 provides that each house of the legislature is to elect presiding officers to serve two-year terms. These terms, under *W. Va. Code*4-1-8 [1980] are to “continue until the regular meeting of the legislature in the odd-numbered year next thereafter, and until their successors are elected and qualified.” Therefore, the President of the Senate is an independent officer of the Senate, distinct and separate from his senatorial position. *See also W.Va. Const,*art. VI, § 24.

The petitioner was elected to two successive two-year terms as President of the West Virginia Senate. His most recent term began on 12 January 1983 and, there*120fore, his term continues until the Senate re-convenes in January. Thus, this is not the situation contemplated by *W. Va. Code*4-l-10a [1973] by which the Governor, when the legislature is not in session and a vacancy in the office of President of the Senate or Speaker of the House of Delegates occurs, convenes an extraordinary session of that House to choose its new presiding officer. No vacancy exists at this time in the office of the President of the West Virginia Senate.

We hold, therefore, that the Clerk of the Senate of the State of West Virginia honor any requests by the petitioner as President of the Senate after 30 November 1984 and until 12 January 1985.

Writ Awarded.