Evans v. Charles

• Decision Date: 06 December 1949
• Docket Number: No. 10194.,10194.
• Parties: EVANS et al. v. CHARLES et al.
• Court: West Virginia Supreme Court

56 S.E.2d 880

EVANS et al.

v.CHARLES et al.

No. 10194.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 5, 1949.

Decided Dec. 6, 1949.

Dr. E. L. Evans and others instituted a suit in equity against K. J. Charles and others, Commissioners of Election of Town of Anawalt, to enjoin the issuance by the defendants of certificates of election to the candidates on the Democratic Ticket for the offices of Mayor, Recorder and Council-men at the first election of officers of the town after its incorporation and to have the election declared void.

A decree was entered by the Circuit Court of McDowell County sustaining demurrer to the bill of complaint and dismissing the suit, and the plaintiffs appealed.

The Supreme Court of Appeals, Haymond, President, affirmed the decree on ground that jurisdiction of the common council of a municipality to decide the contested election was original and exclusive.

Syllabus by the Court.

1. The jurisdiction of the common council of a municipality incorporated under Article 2, Chapter 8, Code, to hear and decide a contested election involving the selection of municipal officers is original and exclusive.

2. The legality of a municipal election is cognizable in an election contest.

3. A court of equity does not have inherent jurisdiction of a suit to determine

the legality of an election involving the selection of officers of a municipality.

W. H. Ballard, Welch, for appellants. Samuel A. Christie, Welch, Sidney L. Christie, Keystone, for appellees.

HAYMOND, President.

This suit in equity was instituted in the Circuit Court of McDowell County by the plaintiffs E. L. Evans, Adrian Vance, Dell Henderson, W. T. Belcher and Dom Castrodale, to enjoin the issuance, by the defendants K. J. Charles, James Lee and Adolphus Shelton, Commissioners of Election of the Town of Anawalt, a municipal corporation, in McDowell County, of certificates of election to the candidates on the Democratic Ticket for the offices of Mayor, Recorder and Councilmen, at the first election of officers of the town, after its incorporation by the circuit court in April, 1949, and to set aside and declare void the election held on June 8, 1949.

The town was incorporated, in the manner provided by Article 2, Chapter 8, Code, 1931, and the election on June 8, 1949, was held, before Article 2 was amended by Chapter 83, Acts of the Legislature, 1949, Regular Session, which confers the authority to incorporate, which previously existed in the circuit court, upon the county court of the county.

From a final decree entered June 29, 1949, which sustained the demurrer of the defendants James Lee and Adolphus Shelton to the bill of complaint, refused to permit the plaintiffs to make Lacy Pat O'Brien, Charley Lavender, Harry Brown, Ralph Cochran, Emmett Taylor, Wiley Davis and R. L. Martin, the successful Democratic candidates for the various municipal offices voted for at the election, defendants to the suit, dissolved a temporary injunction previously awarded on June 13, 1949, and dismissed the suit, this Court granted an appeal upon the petition of the plaintiffs.

The material facts involved appear from the allegations of the bill of complaint and on demurrer, if well pleaded are accepted as true. Ross v. Midelburg, 129 W.Va. 851, 42 S.E.2d 187; Taylor v. Spurr, 126 W.Va. 773, 30 S.E.2d 84; Browning v. Browning, 85 W.Va. 46, 100 S.E. 860.

On April 15, 1949, after the requirements of Article 2 of Chapter 8 of the Code of 1931, then in force and effect, had been complied with, the Circuit Court of McDowell County, by order entered of record, directed the clerk of that court to issue a certificate of incorporation for the Town of Anawalt in that county and on April 18, 1949, pursuant to such order, the town was duly incorporated. By order entered April 15, 1949, the circuit court appointed the defendants K. J. Charles, James Lee and Adolphus Shelton, as Commissioners of Election for the municipality, and directed them to hold and conduct the first municipal election in the town on June 8, 1949, to permit its qualified voters to select a Mayor, a Recorder and five members of a Common Council.

At a convention held on May 4, 1949, the Peoples Party, of which the plaintiffs, who are citizens and qualified voters of the town, are members, nominated the plaintiffs and two other persons as candidates for the municipal offices to be filled at the election; and on May 6, 1949 the Democratic Party, at a convention held at that time, nominated Lacy Pat O'Brien for Mayor, Charley Lavender, for Recorder, and Harry Brown, Ralph Cochran, Emmett Taylor, Wiley Davis and R. L. Martin for Councilmen, as its candidates. The nominees of these two parties were the only candidates whose names appeared on the official ballot at the election. The entire population of the newly incorporated Town of Anawalt, as shown by the census taken in connection with its incorporation, including men, women and children, numbered 1240 persons and the census was the only available record for use at the first election to determine the qualified voters of the municipality. The results of the election, as certified by the Commissioners of Election, showed that Lacy Pat O'Brien received 338 votes and E. L. Evans 310 votes for Mayor; that Charley Lavender received 329 votes and Adrian Vance 309 votes for Recorder; and that Emmett Taylor received 343 votes, Wiley Davis 343 votes, R. E. Martin 341 votes, Ralph Cochran 327 votes and Harry Brown 324 votes, as against 316 votes for W. T. Belcher, 311 votes for Dom Castro-dale, 303 votes for Dell Henderson, 302 votes for H. M. Cochran, and 285 votes for J. R. Brown, for Councilmen.

The bill of complaint alleges that the Commissioners of Election did not make effective use of the census to determine the qualified voters of the municipality; that although there were not more than 500 persons who were legally qualified to vote, 666 votes were cast at the election; and that many persons who were not legal residents of the town or who were under twenty one years of age, or otherwise disqualified to vote, voted at the election; and it names and identifies 27 such persons. It charges that because the Commissioners of Election did not conduct the election in a lawful manner in permitting many persons not legally qualified to vote to cast illegal ballots, the residents of the town who are qualified to vote, including the plaintiffs, who were also the candidates of the Peoples Party for the various municipal offices, are entitled to have an election conducted in the manner provided by law; that they have been fraudulently deprived of their right to such election; and that the election held on June 8, 1949, does not express the will of the qualified voters of the town.

The plaintiffs assign as error the action of the circuit court (1) in sustaining the demurrer of the defendants to the bill of complaint; (2) in dismissing the bill of complaint; (3) in dissolving the injunction; (4) in denying the plaintiffs access to certain records used at the election; and (5) in refusing permission to amend the bill of complaint.

The controlling question presented by the assignments of error is whether an election of public officers which is alleged to have been illegally held and conducted may, in the absence of a statute conferring jurisdiction upon a court of equity to determine its validity, be originally as sailed and set aside in a suit in equity instituted for that purpose.

The plaintiffs contend in substance that the matters involved in this suit are not determinable in an election contest; that the statutes which make provision for a proceeding of that character do not apply in this case; and that, because there is no adequate legal remedy, a court of equity has inherent jurisdiction to determine the validity of an election involving candidates for public office and to set it aside if it has been illegally held and conducted.

There is no statute of this State which confers jurisdiction upon a court of equity to determine the validity of an election in which only the selection of public officers is involved. This is conceded by the plaintiffs. For that reason they assert that there is no adequate legal remedy and in consequence a court of equity has inherent jurisdiction to entertain this suit.

The system of elections in this State is not of common law origin; and the exercise of the right of suffrage is regulated and controlled by constitutional and statutory provisions. State ex rel. Robertson v. County Court of Kanawha County, W. Va., 48 S.E.2d 345. The manner of conducting elections in this State is governed by statutes and the power of the Legislature to deal with elections is plenary except to the extent that it is limited by the provisions of the Constitution of this State or of the Constitution of the United States. State ex rel. Forsythe v. County Court of Cabell County, W. Va., 48 S.E.2d 412; Halstead v. Rader, 27 W. Va. 806. In the exercise of this power the Legislature has enacted, from time to time, numerous statutes with respect to various phases of the election system, in which are included enactments which provide for election contests, confer jurisdiction upon certain tribunals to entertain and determine such contests, and prescribe the time within which they shall be instituted and the manner in which they shall be conducted.

In considering and resolving the contention of the plaintiffs that they are withoutan adequate legal remedy for the alleged grievances of which they complain and that, for that reason, they are entitled to invoke the aid of a court of equity, it is necessary to examine the statutes relating to election contests and to ascertain whether the matters here involved are within their provisions.

Section 2, Article 9, Chapter 3 of the Code, 1931, which deals with the time within which an election contest may be instituted and the manner in which it may be conducted with respect to any county or district office,...