Baer v. Gore
| Decision Date | 24 October 1916 |
| Docket Number | 3257. |
| Parties | BAER v. GORE. |
| Court | West Virginia Supreme Court |
Submitted October 6, 1916.
Syllabus by the Court.
A statute, which provides that a voter on entering the polling place "shall announce his name," "shall sign his name and place of residence in a book of the party whose ballot he wishes to cast," and subscribe an oath verifying his party affiliation, etc., before receiving and voting the ballot of the party so named, is mandatory, and prerequisite to the exercise of the elective franchise in a nominating primary.
A statute, requiring each voter in a primary election to state on oath his party affiliation before he is entitled to cast his ballot, does not violate the constitutional provision that no "political test oath shall be required as a prerequisite or qualification to vote," or that, with certain negative exceptions, all male citizens 21 years of age or over "shall be entitled to vote at all elections held within the counties in which they respectively reside."
Such statutory requirement is only a mode of ascertaining the party affiliation of the voter, and thereby to identify him as one entitled to cast the ballot of such party, and is not intended as a test of his right to vote in a primary as distinguished from a general election.
Primary elections are so far matters of public concern that, within legislative discretion, when not restrained by any constitutional inhibition, they are proper subjects of reasonable statutory regulation under the police power of the state. Such regulations are vital to the accomplishment of the purpose and scheme of nominating elections.
Statutes providing for such elections are based on a recognition of political parties as governmental agencies, and are usually intended to maintain party organizations and to secure the integrity of party nominations.
The appellate jurisdiction of this court is not determined by the value of the subject-matter of the controversy in cases "involving the constitutionality of a law."
Where a just determination of a controversy between opposing candidates, arising out of a canvass of primary election returns, appealed to the circuit court under section 26a22 c. 3, Barnes' Code, virtually depends on the proper interpretation of a law charged to be invalid as in violation of the Constitution, this court has jurisdiction to review the proceeding on writ of error.
Additional Syllabus by Editorial Staff.
Generally the word "shall," when used in Constitutions and statutes, leaves no way open for the substitution of discretion.
Primary election contests, general election contests, and recanvasses by the circuit court of the votes cast at primary elections are "controversies" within the meaning of Code 1913, c. 113, § 4 (sec. 4592), and chapter 135, § 1 (sec 4981), authorizing review by the Supreme Court of Appeals of "controversies" involving the validity of statutes.
Error to Circuit Court, Logan County.
Controversy between Ira P. Baer and William Gore as to nomination at primary election for justice of the peace. Judgment for Baer, and Gore brings error. Affirmed.
John Chafin and Jas. E. Greever, both of Logan, for plaintiff in error.
E. L. Hogsett, of Logan, for defendant in error.
Between Ira P. Baer and William Gore has arisen a controversy as to which of them received a plurality of votes cast in the June primary election for nomination as a candidate for justice of the peace of Logan district, Logan county, to be voted for in the general election to be held November 7, 1916. The returns of the election, as ascertained by the commissioners and clerks conducting it, and by the county court as a board of canvassers, showed a plurality in favor of Gore, while upon appeal the circuit court found Baer nominated as a candidate, and not Gore, who assigns error.
These findings resulted from variant interpretations of the section of the primary election law that requires each voter to state upon oath his party affiliations, his age and residence, etc., as a prerequisite to the right to exercise the elective franchise at the polling place where he offers himself as a voter in a primary. Section 26a (13), c. 3, Barnes' Code. The section is:
The legal validity of this statute is in issue.
The election commissioners and the board of convassers apparently interpreted the provision quoted as directory only, while the circuit court treated it as mandatory. This diversity constitutes the real cause of the controversy, although other questions arise as incidental to the main issues to be adjudged on the writ of review. The provisions of the enactment are expressed in imperative terms. They are positive and unequivocal.
Generally "shall," when used in Constitutions and statutes, leaves no way open for the substitution of discretion. 35 Cyc. 1451; Madderom v. Chicago, 194 Ill. 573, 62 N.E. 846; Coleman v. Eutaw, 157 Ala. 340, 47 So. 703; State v. Talty, 166 Mo. 559, 66 S.W. 361. All authorities coincide in holding mandatory all statutory requirements, although contained in an election law, if it appears reasonably certain the Legislature intended them to have that effect. Morris v. Board of Canvassers, 49 W.Va. 262, 38 S.E. 500. This court in Daniel v. Simms, 49 W.Va. 554, 39 S.E. 690, interpreted as imperative a provision requiring each voter to place the names of all persons for whom he desired to vote in one column of the ballot and to designate the office to be filled by each of them. Hence it seems obvious that the Legislature intended that each elector who offers to vote in a primary should declare his party affiliation as a condition of the right to express his preferences between the candidates of his own party for any political office.
One of the many reasons assigned and argued by counsel to show that a writ of error does not lie from this court to the circuit court, in proceedings of this nature, is that the value of a nomination for an office is less than $100. No value is alleged or proved; and, when measured by any recognized standard of pecuniary valuation, a nomination may not easily be appraised. But an exact appraisement of the subject-matter of a controversy is not always indispensable. For an actual monetary value in excess of $100 is not essential to empower this court, on writ of error or appeal, to determine causes "involving the constitutionality of a law." Section 3, art. 8, Const.; Section 4, c. 113, and section 1, c. 135, Code; Williamson v. Musick, 60 W.Va. 59, 53 S.E. 706; Typewriter Co. v. Piggott, 60 W.Va. 532, 55 S.E. 664. Of course, to be adjudged the right to invoke this jurisdiction, it must appear with reasonable certainty, as obviously in this case it does appear, that a correct interpretation and construction of the challenged statute is vital to a just determination of the litigation. These provisions manifest an intention to make this requirement essential to confer on this court power and right to determine, on writ of error or appeal, controversies between parties where the matter in dispute is less in value than the jurisdictional amount. Not every charge of infirmity in an enactment, however, will so operate. A mere factitious or spurious assertion of constitutional invalidity will not suffice. "The court will examine and determine for itself whether such claim is well founded; and, in order for jurisdiction to attach, it must affirmatively appear that a fairly debatable constitutional question was and is involved." 3 C.J. 391. That an interpretation of the provision, requiring an oath of party affiliation, in view of the constitutional provisions found in section 11, art. 3, is vital to a correct solution of the questions herein involved, seems too obvious to permit of argument. The essential rights of the parties, those rights upon which the board of canvassers and the circuit court wholly disagreed, depend conclusively upon the legal validity of that requirement. It marks the point of divergence between the different results reached in ascertaining the returns from two precincts in Logan district, so far as can be discovered by an examination of the record.
Again it is contended that the writ does not lie, because, although an appeal lies in such cases to the circuit court under the authority of the statute, it vests that court only with such power as, and no more than, the board of canvassers had and exercised, and that the action of both was ministerial. In support of this contention are cited Railway Co. v. Board of Public Works,...
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