Hasson v. City of Chester
| Decision Date | 22 March 1910 |
| Citation | 67 S.E. 731,67 W.Va. 278 |
| Parties | HASSON v. CITY OF CHESTER. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
That which is plainly within the spirit, meaning, and purpose of a remedial statute, though not therein expressed in terms, is as much a part of it as if it were so expressed.
Of two permissible constructions of a statute, one working manifest injustice and the other equity and fairness, the latter is to be adopted upon the presumption that the Legislature did not intend the results flowing from the former.
Section 7 of chapter 3 of the Code of 1906, relating to the appointment of commissioners of election, impliedly gives right of representation to the two leading political parties in every election, and prescribes a mode of determining the right of preference, giving it to those whose candidates received the highest number of votes in the last preceding election, when there are such parties.
When none of the parties participating in any election took part as an organization in the last preceding election, the statutory rule for determining right of preference is inoperative, but the two leading parties are nevertheless entitled to representation, and may demand the appointment of qualified persons designated by them for commissioners and challengers.
A political party or organization for national, state, county and magisterial district elections is not one for the purposes of a municipal election, unless the members thereof participate as such an organization in the latter by the nomination and support of candidates therein under the party name.
Mandamus by George A. Hasson against Frank G. Chapman, mayor of the city of Chester, and others. Writ granted.
George L. Bambrick, Frank L. Bradley, and J. B. Sommerville, for petitioner.
Henry M. Russell, for respondents.
For a municipal election in the city of Chester, Hancock county the Republican voters nominated a full set of candidates by convention. Another body of voters nominated a full list of candidates by a petition in which their organization was named the Independent party. A third body, calling themselves the Democratic party, held a meeting at which they passed resolutions declaring their allegiance to certain principles and appointed a committee for service in the election, but did not nominate any candidates to be voted for therein. Each of these organizations demanded representation in the precinct boards of commissioners appointed to conduct the election, and a challenger at each precinct. Accordingly the respective committees of the Independent and Democratic parties designated, for appointment by the council of the town, one man for commissioner and one for challenger at each precinct. The Republican committee also made recommendations and the council, deeming the Independent party not entitled to representation because it was a new-party, refused to appoint the men named by its committee, and appointed those designated by the Republican and Democratic committees. Thereupon Geo. A. Hasson, the candidate nominated for mayor by the Independent party, applied to this court for a peremptory writ of mandamus to compel the council to appoint, as commissioners and challengers, the persons named for said positions by the executive committee of his party.
Section 7 of chapter 3 of the Code of 1906, relating to general elections, as modified by section 85 of said chapter, adopting it for the purposes of municipal elections, governs the appointment of commissioners. As so modified, said section requires the council to appoint three qualified voters as commissioners of election for each precinct in the city or town. The persons so appointed must be of good standing and character, and not addicted to drunkenness. These provisions are followed by this clause: "They shall be selected from the two political parties which at the last preceding election cast the highest number of votes, *** and not more than two of them shall belong to the same political party." It is then provided that if the executive committee of either party from which such commissioners are to be selected or appointed shall present a writing signed by them or their chairmen, requesting the appointment of a qualified voter of their political party, it shall be the duty of the council to appoint such person. As to challengers the statute, as applied to municipal corporations, requires the council to appoint members of the two leading parties upon the nomination of the chairmen of their committees.
Though a great many previous elections have been held in the city of Chester, no regularly organized political parties ever participated therein as such. In other words, no party candidates were ever nominated for such elections. For general political purposes, the voters have been divided between the two great political organizations, Republican and Democratic, but they have never participated in these municipal elections as such, nor otherwise than as citizens. This is an established fact in the case, in view of which it is clear that all three of these parties, the Republican, Democratic, and Independent, are new parties for the purposes of the election. The council in making its appointments must have determined the status of the Republican and Democratic parties by votes cast for their candidates in prior magisterial district, county, state, and national elections, since it regarded them as parties having received the highest number of votes in the last preceding election. This is not the test for municipal elections. Section 85 of chapter 3 of the Code of 1906 expressly rejects it by recognition of the well-known fact that the regular political parties do not always participate as such in municipal elections. It says: "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." This necessarily negatives the idea of recognition for municipal elections of the general political parties; but terms of negation are not necessary, for the elections are separate and distinct in nature. It is essential to the recognition of parties in such elections that they organize for, and participate in, them, as such, and, when they have done that, their status must be determined by the votes cast for their candidates in the last preceding municipal election. From this conclusion it follows that none of these political parties had any record in the last preceding municipal election, entitling them to preference in the selection of election commissioners and challengers. They are all new parties for the purposes of this election.
The council fell into another error in considering the Democratic organization as a party at all. It had not nominated any candidates. Neither its members nor any other voters could vote for anybody in the election as a Democrat. Nobody was running or soliciting votes as a Democratic nominee. The record before the council disclosed only two sets of candidates, Republican and Independent, between whom and their associates the contest was to occur and be fought out. The gentlemen who affiliate with the Democratic party in general politics were not maintaining such affiliation in the municipal contest. They necessarily intended to vote as Republicans and Independents. Nominated candidates are the leaders and representatives of organizations. They are essential to organized participation in an election. A party not so represented is not participating as an organization at all. The whole system of statutory regulation is founded upon the assumption of such representation. Party organization for an election begins with the nomination of candidates by convention, primary election, or petition.
In view of this situation, what was the duty...
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