171 S.E.2d 480 (W.Va. 1969), 12883, Terry v. Sencindiver

Docket Nº:12883.
Citation:171 S.E.2d 480, 153 W.Va. 651
Opinion Judge:CAPLAN, Judge.
Party Name:Luke E. TERRY v. Vance E. SENCINDIVER.
Attorney:Charnock & Charnock, John N. Charnock, Jr., Charleston, for petitioner., Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for respondent. Charnock & Charnock, John N. Charnock, Jr., Charleston, for petitioner. Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for respondent.
Case Date:December 16, 1969
Court:Supreme Court of Appeals of West Virginia
 
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Page 480

171 S.E.2d 480 (W.Va. 1969)

153 W.Va. 651

Luke E. TERRY

v.

Vance E. SENCINDIVER.

No. 12883.

Supreme Court of Appeals of West Virginia.

December 16, 1969

Submitted Nov. 18, 1969.

Syllabus by the Court

1. A petition for appeal to this Court, whether it be from a judgment, decree or order of a circuit court under the provisions of Code, 1931, 58--5--3, or from a decision of a special court created under Code, 1931, 3--7--3, as amended, is properly filed when it is presented within the applicable statutory period to the clerk of this Court.

2. The word 'shall', in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.

[153 W.Va. 652] 3. Where it clearly appears in an election contest that persons were permitted to vote after the hour of seven-thirty o'clock in the evening, prescribed by

Page 481

Code, 1931, 3--1--31, as amended, as the time when the polls shall close, the votes so cast shall be illegal and void.

4. Where illegal votes have been cast and have been commingled with the valid votes received in a precinct, making it impossible to purge such illegal votes, the entire vote of the precinct must be rejected if it appears that sufficient illegal votes were cast to affect, or leave in doubt, the result of said election.

Charnock & Charnock, John N. Charnock, Jr., Charleston, for petitioner.

Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for respondent.

CAPLAN, Judge.

This is an appeal from a decision of a special court convened pursuant to the provisions of Code, 1931, 3--7--3, as amended, for the purpose of determining which of two candidates was the duly elected Judge of the 31st Judicial Circuit.

At the general election held on November 5, 1968, the appellant, Luke E. Terry, sometimes referred to as 'contestant', was the candidate of the Republican Party and the appellee, Vance E. Sencindiver, sometimes referred to as 'contestee', was the candidate of the Democratic Party for the office of Judge of the 31st Judicial Circuit. This circuit is comprised of the counties of Berkeley, Jefferson and Morgan. At the conclusion of the canvass of the votes each of the aforesaid parties demanded a recount in each of the three counties. Such recounts were [153 W.Va. 653] conducted and the result of the election was certified to the Secretary of State. The certification showed Mr. Sencindiver to be the winner by a margin of six votes and a certificate of election was duly issued to him. He is presently holding the office of Judge of the 31st Judicial Circuit.

Mr. Terry, desiring to contest the said election, filed his petition dated December 20, 1968, with the Honorable Hulett C. Smith, Governor of the State of West Virginia, pursuant to the provisions of Code, 1931, 3--7--3, as amended, and caused a notice of contest of election to be served upon the contestee. In his petition the contestant prayed that a special court be convened pursuant to the aforesaid statute to hear and determine all matters in contest in relation to this election and that he be declared duly elected to the subject office during and for the term beginning January 1, 1969. Mr. Terry therein designated D. H. Rogers, Jr., of Martinsburg, West Virginia, as his choice to serve as a member of the special court. C. Samuel Trump, of Berkeley Springs, West Virginia, was designated by Mr. Sencindiver, the contestee, as his selection as a member of the special court.

By Executive Order No. 1--69 the Governor appointed as the third member and presiding officer of the special court the Honorable K. K. Hall of Madison, West Virginia. The court was therein further directed to decide the election contest according to the law and evidence submitted to it and to certify its decision to the Governor. Accordingly, the case was considered upon the pleadings, sworn testimony, depositions and other evidence and by letter dated July 11, 1969, the decision of the court was submitted to the Honorable Arch A. Moore, Jr., Governor of the State of...

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