Dotson v. Town of Gilbert
| Decision Date | 18 June 1946 |
| Docket Number | 9768. |
| Citation | 39 S.E.2d 108,129 W.Va. 130 |
| Parties | DOTSON et al. v. TOWN OF GILBERT et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court
1. In a regular biennial election of municipal officers which an ordinance of a municipality, created by general law, directed should be 'held and conducted according to the provisions of Chapter 3 of the Code of West Virginia', ballots cast by voters whose names were not entered upon the permanent registration records procured from the municipal precinct file in the office of the clerk of the county court as provided by Section 13-a of Article 5 of Chapter 44 of the Acts of the Legislature of 1941, but who, in all other respects, were qualified voters of the municipality, may not be tabulated or counted in determining the result of such election.
2. When it appears that ballots, cast in a regular biennial election to select the officers of a municipality, created by general law, by voters whose names did not appear upon the permanent registration records procured from the municipal precinct file in the office of the clerk of the county court as provided by Section 13-a of Article 5 of Chapter 44 of the Acts of the Legislature of 1941, and which ballots have been counted, operate to change the result of the election mandamus lies, at the instance of candidates adversely affected, to compel the board of canvassers of the municipality of reconvene and, when so convened, to reject such ballots, to revoke certificates of election based thereon, and to issue certificates of election to candidates who, but for such ballots, received a majority of the votes cast in such election.
Lafe B. Chafin, of Williamson, for plaintiffs in error.
J Brooks Lawson and Harry W. Hill, both of Williamson, for defendants in error.
This writ of error involves the determination of the result of an election between rival candidates of two political parties for the offices of Mayor, Recorder, and Councilmen of the Town of Gilbert in Mingo County, West Virginia.
On June 5, 1945, an election was held in that municipality to choose its officers for the regular two year terms provided by law. At the election, two political parties in the municipality, the Peoples Party and the Independent Party, had complete tickets of candidates for each of the offices to be filled by the qualified voters of the town. One hundred and sixty-nine unchallenged ballots were cast, which when counted and certified by the election officers indicated the election of all the candidates of the Peoples Party. There were seventy-two challenged ballots which were not counted or included by the election officers in the certificate of the returns.
At the meeting of the Council of the town, sitting as a Board of Canvassers, on June 11, 1945, the seventy-two challenged ballots and the one hundred and sixty-nine unchallenged ballots were counted and tabulated. That action resulted in the election of the candidates on the Independent Party ticket to the offices of Mayor, Recorder, and three Councilmen. The canvass revealed that as to the other two offices of Councilmen, one candidate on the Independent Party ticket and two candidates on the Peoples Party ticket each received one hundred and seventeen votes. The Board of Canvassers, resolving the tie, declared the candidate of the Independent Party and one of the two candidates of the Peoples Party elected to those two offices.
On June 22, 1945, the candidates on the Peoples Party ticket presented their petition to the Circuit Court of Mingo County against the Town of Gilbert, its Mayor, its Recorder, and the five members of its Council, in which the petitioners prayed for a writ of mandamus to require the respondents forthwith to reconvene as a canvassing board, and, upon so doing, to reject certain specified challenged ballots, to revoke the challenged certificates of election issued by the recorder, and to issue certificates of election to each of the petitioners. A rule having issued upon the petition, the respondents appeared in open court on June 26, 1945, and filed their demurrer and their answer to the petition. The demurrer was overruled and the proceeding was heard by the court upon the petition, the answer, and the general replication of the petitioners. The writ as prayed for was granted by the court by order entered June 26, 1945. To that judgment a writ of error was awarded the respondents by this Court.
The controlling question is whether the ballots cast by fifty-three voters, whose names did not appear upon the permanent registration records in the office of the Clerk of the County Court of Mingo County at the time of the election, are legal and valid ballots and should be counted.
It is established that of these fifty-three voters forty-two cast straight Independent Party ballots, one cast a straight Peoples Party ballot, and the remaining ten cast mixed ballots; and that if all these ballots should be rejected as illegal each of the petitioners, who constitute all the candidates on the Peoples Party ticket, would have received a majority of the votes cast at the election and, as a consequence, would be entitled to a certificate of election to the office for which each was a candidate. It is stipulated by the attorneys for the respective parties that all who cast the fifty-three ballots are qualified voters of the Town of Gilbert unless the absence of their names from the permanent registration records disqualifies them as voters at the election.
The Town of Gilbert has no special charter. It was created about twenty-five years ago and it exists and operates under the general statutes of this state.
On May 7, 1945, less than thirty days before the election to be held on June 5, 1945, the Council passed an ordinance relating to the election. It consists of three short sections and contains this language:
qualifications.
At a meeting of the Council, on June 2, 1945, less than three days before the election, two registrars were appointed, one from the Independent Party and one from the Peoples Party, to register the voters of the town, and to report the list to the Council at a meeting on June 4, 1945. The appointee from the Peoples Party failed or refused to serve. A registration list, however, was prepared by the other registrar, which list was accepted by the Council at the meeting on June 4, 1945. This list contained the names of at least forty of the fifty-three voters whose names did not appear on the permanent registration records.
Though Section 1 of the ordinance indicates that exceptions to the provisions of Chapter 3 of the Code of West Virginia would be stated in the subsequent sections, no specific exceptions are incorporated within their terms, unless the language of Sections 2 and 3 may be so considered. The provisions of Section 2, however, are in conflict with the provisions of Chapter 3 of the Code of West Virginia, 1931, as amended, which, when the ordinance was passed, included both Chapter 43 of the Acts of the Legislature of 1941 and Chapter 50 of the Acts of the Legislature of 1943, to the extent that they disregard the registration requirements for voters incorporated in Chapter 43 of the Acts of the Legislature of 1941, as amended, and undertake to confer authority, not given by any section of that chapter of the Code, upon the Commissioners of Election. Code, 8-3-16, expressly provides that any municipality, not having a special charter, may prescribe the method of nominating its officers and holding its elections, but that such method shall not be inconsistent with any general provisions of law.
By Chapter 43 of the Acts of the Legislature of 1941, as amended by Chapter 50 of the Acts of the Legislature of 1943, and by Chapter 62 of the Acts of the Legislature of 1945, the Legislature of this state has provided a comprehensive system for the registration of voters. Various sections of the statutes contain detailed provisions which deal with that subject. Section 1 of Article 1 of the Acts of the Legislature of 1941, extends the provisions of the act unless restricted by the context, to every election in which candidates are nominated or elected or in which the electorate passes upon any public question submitted to it, except that its provisions shall be construed to be operative in municipal elections only in those instances in which they are made expressly applicable. Section 1-a of the same article, after declaring that citizens of the state shall be entitled to vote at all elections, including primaries held within the precincts of the counties and the municipalities in which they respectively reside, expressly states that no person, who has not been registered as a voter as required by law, or who is a minor, or of unsound mind, or a pauper, or who is under conviction of treason, felony or bribery in an election, or who, in the case of state and county elections, has not been a bona fide resident of the state for one year and of...
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