Eakle v. Bd. Of Educ. Of Indep. Sch. Dist. Of Henry

• Court: West Virginia Supreme Court
• Writing for the Court: LITZ, J
• Citation: Eakle v. Bd. Of Educ. Of Indep. Sch. Dist. Of Henry, 125 S.E. 165 (W. Va. 1924)
• Decision Date: 28 October 1924
• Docket Number: (C. C. No. 333.)
• Parties: EAKLE. v. BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. OF HENRY et al.

125 S.E. 165

EAKLE.

v.BOARD OF EDUCATION OF INDEPENDENT SCHOOL DIST. OF HENRY et al.

(C. C. No. 333.)

Supreme Court of Appeals of West Virginia.

Oct 28, 1924.

(Syllabus by the Court.)

Proceeding by B. C. Eakle against the Board of Education of the Independent School District of Henry and others. A demurrer to the petition was overruled, and the questions certified. Affirmed.

O. L. Hall, of Clay, for petitioner.

B. T. Clayton, of Charleston, for respondents.

LITZ, J. Relator, B. C. Eakle, in this proceeding in the circuit court of Clay county, seeks by mandamus to compel the board of education of the independent school district of Henry, a corporation, of said county, P. H. Frankfort, president and J. A. Sizemore, James Reed, and J. F. Wilson, members thereof, to proceed as soon as practicable to register, or cause to be registered, the legal voters in said independent school district, and hold an election therein as provided by law for the selection of members of said board of education, disregarding an alleged election which was held in said district on the first Saturday in June, 1924.

Relator alleges that he is a resident, citizen, taxpayer, and voter in said independent school district of Henry; that said board of education, consisting of five members, by reason of the death of Harry Stone, a member thereof, for some time past has been composed of P. H. Frankfort, president, and James Reed, J. A. Sizemore, and J. F. Wilson, members; and that said board of education is a corporation existing under and by virtue of chapter 23, Acts of the Legislature of 1905.

Relator avers that by the provisions of said act an election is required to be held by said board annually in said district on the first Saturday in June, for the election of members of said board, and that said board in calling and conducting said election is governed by the election laws of the state; that no election was held in said district, either in the year 1922 or 1923, and in consequence thereof the terms of office of two of the members of said board, i. e., said Reed and Size-more, had on the first Saturday in June, 1924, expired, and said Reed and Sizemore were then, and are now, filling their respective offices as "holdovers, " until the election and qualification of their successors; and that because of the death of said Harry Stone his office as member of said board is vacant, so that at the election to be held on the first Saturday of June, 1924, there were three members of said board of education to be elected, one for three years, one for four years, and one for five years.

Relator further avers that pursuant to the act creating said board of education it became, and was, the duty of said board to provide for holding an election in said district on the first Saturday in June, 1924, in accordance with the election laws now inforce in this state, and to cause to be registered for said election all the qualified voters in said district; but utterly disregarding its duties and obligations, said board refused and neglected to register, or cause to be registered, the legal voters in said district; that election commissioners and poll clerks appointed by said board of education on the first Saturday in June, 1921, without any registration of the legal voters in said district whatever, attempted to hold an election in said district; that one of the commissioners of election turned over to relator, as secretary of said board of education, what purported to be the ballots, tally sheets, and poll books of said election; that said board of education, as ex officio board of canvassers, met on the 13th day of June, 1924, and ascertained that certain candidates had received certain votes; whereupon, before any candidate was declared elected, or the result of said alleged election declared by said board of canvassers, a recount was demanded by certain of said candidates, and said board of canvassers fixed June 19, 1924, as a time for such recount; that on that day the board of education met as such board of canvassers, when it was ascertained that the election returns were not certified by the election officers, that said election officers had not used in said election any registration list, and that no registration of the voters had been made prior to the election, since which time said board of canvassers has not declared the result of the alleged election; that, because no registration of voters at such election was had prior thereto, relator avers that said election is void; that as a citizen, resident, taxpayer, and voter in said district he and the other legal voters in said district are entitled to have the legal voters of said district duly registered and an election held therein in all respects according to law, for the selection of members of the board of education; and that the board of education is without authority now to call or hold such election without direction by the courts.

Relator prays that he be awarded a peremptory writ of mandamus directed to said board of education and said Frankfort. Wilson, Sizemore, and Reed, members thereof, commanding them to disregard said alleged election, and to provide, as soon as practicable, for the holding of an election in said district by duly registering, or causing to be registered, the legal voters therein and otherwise conducting and holding such election in all respects as provided by law.

To this petition a demurrer was entered by the defendants. It was overruled, and the circuit court of Clay county has certified to this court the following questions:

"(1) Does the law governing the holding of elections in said independent district for the election of members of said board of education thereof require a registration of the qualified voters of said district as a prerequisite to the holding of a valid election therein?

"(2) Is said board of education authorized by law to make or cause to be made a registration of the voters residing in said district preliminary to the holding of a valid election therein?"

Answering the questions certified in their order:

1. Section 85, c. 3, Code, confers upon municipal officers, for the purpose of municipal elections, the duties imposed by law on county courts, clerks of circuit and county courts, sheriffs, and other county officers. This section reads:

"Sec. 85. Municipal Elections. Every municipal election shall be held in conformity with the provisions of this act, except that the duties herein required of the county and circuit court clerks shall be performed by the municipal clerk (or recorder, as the case may be); the duties herein required of the commissioners of the county court shall be performed by the municipal council; the duties herein required of the county sheriff shall be performed by the municipal marshal, sergeant (or chief of police, as the case may be); and the rights of designation of election officers by political parties shall be exercised by the chairman of committees of such parties in the municipality if such there be. Municipal officers are hereby required to perform the various duties herein prescribed for county officers in whose stead they act, subject to the same provisions and penalties herein prescribed as to such county officers, except in any municipality giving at the last preceding election therein less than six hundred votes, in which an election is held for municipal officers without any nominations of candidates having been made and certified, as herein provided, by at least two political parties or organizations of citizens representing a political principle, said election may be held and conducted under the laws in force in this state on the day before this chapter, as amended by chapter twenty-five of the Acts of 1893, took effect, and shall be counted and certified and the result declared under the provisions of this chapter."

Respondents in their brief assert that this election comes within the above exception, and should have been held under the law in force before the amendment of 1893, for the reasons that there were no candidates nominated of opposite or different political beliefs by two or more political groups having different political aims, and that there were less than 600 votes cast in the preceding general election in the district. An affidavit to such effect is said to be filed, but is not found among the papers certified. There is nothing in the pleadings (of which respondents' brief is no part) showing that the election in question comes within the scope of the above exception. Whether or not the petition states a good cause of action is to be determined on this certification to review the ruling on the demurrer. Clayton v. County Court, 96 W. Va. 333, 123 S. E. 189.

County courts, under various sections of said chapter 3 of the Code, are given authority to appoint commissioners of election (section 7), who shall appoint poll clerks (section 8); to provide and cause to be delivered to the commissioners of election poll books and whatever else is necessary to conduct an election (section 9). Section 98a(l) provides for appointment by the county court of registrars whose duties are prescribed by section 98a(3), with reference to...