Chambers v. Cline.
| Decision Date | 20 November 1906 |
| Citation | 60 W.Va. 588 |
| Parties | Chambers v. Cline. |
| Court | West Virginia Supreme Court |
Where a vote upon the question of the removal of the county seat of a county has been taken at a general election, under the provisions of section 15, chapter 39, Code 1906, Annotated, and the election on such question has been, upon the hearing of a contest as to the result of such vote, by the county court held to be "not legally held and returned, and was invalid and void;" it is competent, while such final decision and judgment remain valid, and unquestioned by legal proceedings to review the same, for the county court, upon receiving the petition of the requisite number of legal voters of their county asking therefor, to order the holding of a special election for said purpose in a subsequent year in which no general election is held as provided in said section, (p. 589.)
In the absence of anything showing a different intention in the giving of a statutory bond, it will be presumed that the intention of the parties was to execute such a bond as the law required, (p. 590.)
So, where a bond is given under the authority of a statute, that which is not expressed but should have been incorporated, is included in the bond, while that which is not required by the statute is excluded, if it is sufficiently clear from the bond itself that the intention of the parties was to comply with the law in its execution, (p. 596.)
Reedy. Hedges, 16 W. Va. 167, (Syl. point 4;) Furniture Co. v. McGuire, 46 W. Va. 328, (Syl, points 2, 3 and 5): and State v. Wotring, 56 W. Va. 394, (Syl. point 2) approved and applied, (p. 596.)
When the citizens of a county desire the re-location of their county seat and file with the county court their petition under 'the provisions of said section 15, and said petition is signed on several separate papers all to the same effect and naming the same place to be voted for as the place at which the re-location shall be made, such several separate papers, without regard to the number thereof, constitute together one petition only. (pp. 598, 599.)
Error to Circuit Court, Wyoming County.
Action by A. L. Chambers and others against H. M. Cline and others. Judgment for defendants and petitioners bring error.
Affirmed.
Chilton, MaoCorkle & Chilton, John E. Blake, James II. Gilmore, and R. R. Smith, for plaintiffs in error.
John M. McGrath, J. Lewis Bumgardner, M. F. Matheny, D. E. French, and J. J. Swope, for defendants in error.
McWhorter, President:
On the 8th day of June, 1905, Jasper N. Cook and 1133 others, citizens and legal voters of Wyoming county, filed in open court in the county court of Wyoming county their petition praying the said court to make an order directing a special election to be held in said county for the purpose of voting upon the question of the re-location of the county seat of said county at Pineville at a time to be fixed by said court as required by section 15, chapter 39, Code 1906, Annotated, to which petition was annexed the affidavits of Jasper N. Cook and H. M. Cline that said signers of the petition were legal voters in said county, and the said Cline as principal with W G. Sparks, Jasper N. Cook and A. B. Shannon sureties filed their bond in the penalty of $5,000, which bond was received and approved by the said county court under the said section 15, when the county court ordered a special election to be held in said county in pursuance of said petition on Tuesday the 29th day of August, 1905, and made due provision in said order for the holding of said election by giving the necessary notices and appointing commissioners for each of the several voting precincts of said county. It afterwards being suggested to the court that said bond filed with the petition might be defective in the conditions thereof, the said court called a special term to be held at the court house of said county on the 1st day of July, 1905, for the purposes, among other things, of providing for the registration of voters of the county prior to the special election aforesaid and "to take any new or amended bond which might be offered or tendered concerning the special election to be held on the 29th day of August, 1905." At said special session, so called, on the 1st day of July, 1905, after reciting that it appeared to the court from statement of counsel that there might be some question as to the legality of the bond in the penality of $5,000 which was executed by said Cline and others on the 8th day of June, 1905, in compliance with the statute requiring a bond to be tiled conditioned to pay the costs of the special election, so called: "On motion of H. M. Cline he is allowed to execute another and supplemental bond in like penalty in this cause with R. L. Bower, Joseph Mace, Isaac Lambert, Philip Lambert and Eli Moran as sureties and conditioned according to law, which is accordingly done and accepted and ordered to be tiled and recorded with the records of this court." The county court met m special session on the 31st day of August, 1905, for the purpose of canvassing the votes and declaring the result of said special election at which time, and before the result was ascertained and declared, a recount of said votes was demanded which recount was refused by the commissioners.
On the application of A. L. Chambers and others to the circuit court of said county an alternative writ of mandamus was awarded requiring the said county court to meet at the court house in special session on the 9th day of October, 1905, to permit the petitioners to contest said special election held on the 29th day of August, 1905, and commanding said county court to make, sign and seal all proper and legal bills of exceptions which might be necessary to complete a record in the proceedings in said contest or to show cause why it should not do so. Said county court made its return to said writ denying that said court had declined and refused to recount said votes by reason of what was termed in said writ as the arbitrary and illegal acts of respondent but because the court was of opinion that the parties failed to make such demand at the time and in the manner required by law; that they were not advised as to whether any illegal votes were cast at said election in favor of the re-location of the county seat or otherwise and therefore made no admission or denial in regard thereto; did not admit that there was any irregularity in the proceedings of the said special session of August 31st, 1905, or that they acted arbitrarily or illegally and expressed a willingness to acquiesce in the issuance by the circuit court of a peremptory writ of mandamus commanding the court to meet at the court house on a day to be fixed in said writ for the purpose of re-canvassing and re-counting the votes cast at said special election and of permitting the petitioners or any proper party to demand a recount or of contesting the said election should they so desire. Thereupon, on the 18th of September, 1905, the circuit court made said alternative writ peremptory requiring the said county court to meet at the court house on the 9th day of October, 1905, and providing that "at said meeting they shall permit said petitioners to contest said election as to any egal matters presented to them and especially to permit a recount of the ballots cast at said special election and do and perform all things required of them by the peremptory writ of mandamus herein provided for."
In pursuance of said peremptory mandamus the court met on the 9th day of October, 1905, in special session, after due notice calling such session, when the contestants by their attorneys moved the court to declare said election void for the reason that an election had been held in said county upon the same question and between the same olaces on the 8th day of November, 1904, and a contest thereof had been instituted and was undetermined on the 8th day of June, 1905, when said election on that day was ordered to be held, and in support of said motion, introduced a certified copy of the record in the certioari proceedings lately pending in the circuit court of said county and dismissed by final order of said court entered on the, day of September, 1905, which motion was resisted by the attorneys for the contestees and overruled by the court, to which ruling of the court the contestants at the time excepted and contestants moved the said election of August 29, 1905, be declared void for the reason that no proper petition was presented i: o the court asking for said election; that the required number of legal voters in Wyoming county did not sign the petition which was hied and for other reasons apparent upon the face of said petition and tendered in support of said motion certified copies of the petition and affidavits which motion was overruled and the contestants excepted. Contestants moved the court to declare the said election void because the bond executed on the 8th day of June, 1905, at the time said election was ordered, was void for the lack of legal conditions and tendered in evidence a certified copy of said bond, which motion was resisted by contestees who tendered a certified copy of a bond executed on the 1st day of July, 1905, to which last bond the contestants objected as evidence but the court overruled the objection and permitted said bond of July 1st, 1905, to be filed and the court having considered both of said bonds in evidence refused to declare the election void, to which ruling of the court the contestants excepted and tendered their three several bills of exceptions marked 1, 2 and 3 respectively, which bills were signed and sealed and made a part of the record. The Clerk of the County Court then laid before the court the certificate of the result of said special...
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