Lively v. Board of Education
In Lively v. Board of Education, 115 W. Va. 314, 175 S.E. 784 (1934), the Court determined that the board of education had demonstrated that it was necessary for the board to hire counsel instead of relying on the prosecuting attorney where the legal matter for which counsel was hired involved challenging the constitutionality of an Act of the West Virginia Legislature, and to advise the board of its status under the challenged act.
The Court noted that prosecuting attorneys are to "regard all laws as constitutional, until the same are declared to be otherwise." Lively, 115 W. Va. at 317, 175 S.E. at 785.
Therefore, the Court concluded, "in order to secure disinterested advice concerning its legal status, if any, the board must of necessity look elsewhere than to the prosecuting attorney." Id.