Harry Irons v. S. P. Fry, 9895
| Decision Date | 12 November 1946 |
| Docket Number | No. 9895,9895 |
| Citation | 129 W.Va. 284 |
| Court | West Virginia Supreme Court |
| Parties | Harry Irons v. S. P. Fry |
Under Code, 3-4-25, and Code, 3-9-2, a notice of contest of a nomination for a county office, the gravamen of which is the claimed disqualification of the contestee to receive the nomination, and which does not state that contestant was a candidate for the nomination and is legally entitled thereto, is defective and upon writ of error to the circuit court an order of that court in contestant's favor based upon such notice is void.
Error to Circuit Court, Wayne County.
Notice of contest by Harry Irons, contestant, against S. P. Fry, contestee, in which contestant sought to be declared the nominee for the office of Commissioner of the county court of Wayne county. The circuit court affirmed an order of the county court overruling contestee's demurrer to the notice of contest and reversed the order of the county court declaring that contestee was the duly elected nominee, and the contestee brings a writ of error.
Notice of contest dismissed.
Buford C. Tynes, Frank Eaton, and J. Floyd Harrison, for plaintiff in error.
M. J. Ferguson, and Okey P. Keadle, for defendant in error.
S. P. Fry was declared the Democratic nominee for the office of commissioner of the County Court of Wayne County, upon a recount held by said county court upon the notice of contest of the contestant, Harry Irons. The contestee Fry prosecutes this writ of error to the order of the Circuit Court of Wayne County, entered on October 8, 1946, which order affirmed an order of the county court overruling contestee's demurrer to the notice of contest therein and reversed the order of the county court declaring that contestee Fry was the duly elected nominee at the primary election held on August 6, 1946, on the ground that contestee Fry was a bona fide resident of Union District and was ineligible because W. Frank Harrison, a hold-over member of the county court, was elected from said Union District.:
After the returns were canvassed on August 9, 1946, the county court, acting as a board of canvassers, officially declared the results as follows:
S. P. Fry, contestee...................................................1, 928 votes
J. C. Wilson, incumbent............................._______________1, 104 votes
Harry Irons, contestant........................................._____________________________ 672 votes
Bernard B. Smith..................................................... 273 votes
John B. Jackson...................................................... 214 votes
C. E. Romans................................................. 139 votes
and on the same day a certificate of nomination was issued to the contestee Fry.
Three grounds of error are cited here: (1) That contestant's notice of contest is fatally defective in that it fails to state: (a) that contestant was a candidate for the office in question, or even an elector of the county or state; (b) that contestee was a resident of Union District on August 6, 1946, the day of the primary; and (c) that contestant would, under Code, 3-4-5, be the duly chosen nominee of the Democratic party for the office in contest, in the event contestee is ineligible and disqualified therefore; (2) that Article VIII of the Constitution of West Virginia, upon which contestant relies, defines the grounds of disqualification and ineligibility of persons elected to said office at an election and not persons nominated therefor; and (3) that the office of county commissioner, being a constitutional office, Code, 3-4-5, is unconstitutional, as enlarging upon Article VIII, Section 23, West Virginia Constitution. The pertinent constitutional provision reads: "No two of said commissioners shall be elected from the same magisterial district." Chapter 48, Section 5, Acts, 1943, amending and reenacting Code, 3-4-5, reads in part, as follows:
"Provided, however, That with respect to nominations of commissioners of county courts, no two of such commissioners shall be nominated as the party candidates from the same magisterial district where more than one such commissioner is to be so nominated at any primary election, and if two or more persons residing in the same district shall in any case receive the greater number of votes cast at such primary election, then only the one of such persons receiving the highest number shall be declared nominated as the candidate of his party, and the person living in another district who shall receive the next highest number of votes shall be declared nominated as the candidate of his party, and so on to the next highest in another district; and in no event shall any such candidate be nominated from the same magisterial district wherein an already elected or otherwise qualified member of such county court resides and who will continue to hold office after the beginning of the term for which such nomination is made." (Italics supplied.)
It is true that the notice lacks the averments as particularized in the first ground of demurrer. If the notice of contest is defective for the reasons set forth in contestee's demurrer, the sufficiency of the notice presents the controlling question in this case, and Fry's nomination, as declared by the county court, would stand free from attack just as though no contest had been instituted.
On this writ of error this Court on October 19, 1946, made and entered an order sustaining the demurrer to the contestant's notice of contest and dismissing the notice at contestant's cost. The order contained the recital that "* * * the notice of contest is insufficient in law and that upon the record the contestee, S. P. Fry, was a bona fide resident of Stonewall District, Wayne County, West Virginia, on the date of the primary election, August 6, 1946, and that he was duly nominated at said primary election as Democratic nominee for the office of Commis- sioner of the County Court of Wayne County, and that no vacancy exists in the nomination for said office * * *". This opinion is written in pursuance of a reservation contained in said order to the effect that a written opinion would be filed at a later date.
Code, 3-4-25, provides: ...
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