Miller v. Burley

• Citation: 187 S.E.2d 803,155 W.Va. 681
• Decision Date: 29 March 1972
• Docket Number: No. 13079,13079
• Parties: Brooks MILLER v. Richard L. BURLEY et al., etc. and Bessie Allen.
• Court: Supreme Court of West Virginia

Page 803

187 S.E.2d 803

155 W.Va. 681

Brooks MILLER v. Richard L. BURLEY et al., etc. and Bessie Allen.

No. 13079.

Supreme Court of Appeals of West Virginia.

Submitted on Rehearing Jan. 25, 1972.

Decided on Rehearing March 7, 1972.

Dissenting Opinion March 29, 1972.

Syllabus by the Court

1. 'The failure of the tribunal to give the notice provided by statute to be given by it of a general election at which vacancies in elective offices are to be filled does not invalidate a general election which is held at the time and the place fixed by law for the holding of such election.' Point 3, syllabus, McCoy v. Fisher, 136 W.Va. 447, (67 S.E.2d 543).

2. 'As to mistakes and irregularities in elections, a distinction exists between those made by the voter and those made by officers of election. In the former case such mistakes and irregularities may often destroy the ballot, while those of officers do not affect the election, if a fair election has been held.' Point 2, syllabus, Morris v. Board of Canvassers of City of Charleston, 49 W.Va. 251, (38 S.E. 500).

3. Under the provisions of Article IV, Section 7, of the Constitution of this State, and of Section 1, Article 10, Chapter 3, Code, 1931, as amended, any vacancy in a state or county office which occurs at any time before a general election shall be filled by appointment which shall expire at such time after the next general election as the person elected to fill such vacancy shall be qualified and the vacancy for the unexpired term shall be filled at such general election.

4. Under Section 5, Article 6, Chapter 3, Code, 1931, as amended, if a voter at a general or special election desires to vote for any person whose name does not appear on the ticket, he may substitute the name of such person by writing it with black lead pencil or other means in the proper place, and making a cross mark in the blank space at the left of the name so written.

5. 'When no candidates have been nominated to fill a vacancy in an elective office, which vacancy is to be filled at a general election, as required by law, and only a few of the total number of qualified electors, who voted at the election for candidates for various other offices, vote for eligible and qualified persons to fill a vacancy in a particular office by writing the names of such persons and the designation of the office on official ballots used at the election, a person who receives the greatest number of the few votes cast is duly elected to fill the vacancy in such office.' Point 5, syllabus, McCoy v. Fisher, 136 W.Va. 447 (67 S.E.2d 543).

Madden & Hughes, John T. Madden, G. Thomas Gall, Moundsville, for plaintiff in error.

Rickey & Chase, John K. Chase, J. K. Chase, Jr., Moundsville, for defendants in error.

HAYMOND, Judge.

In this mandamus proceeding, instituted in the Circuit Court of Marshall County, December 3, 1970, the petitioner, Brooks Miller, a citizen, taxpayer and legal voter of Marshall County, West Virginia, seeks a writ to compel the defendants, Richard L. Burley, Charles P. Helinski and John W. Myers, Commissioners of the County Court of Marshall County, West Virginia, and as such the Board of Canvassers of said county, to reconvene as the Board of Canvassers of that county and to ascertain the result of the general election held November 3, 1970 for the office of Sheriff of Marshall County, to record the result of the election and to issue a certificate of election to the petitioner to the office of Sheriff of Marshall County.

Upon the petition and its exhibits the Judge of the Circuit Court in vacation, awarded a rule returnable December 17, 1970, requiring the defendants to show cause why a writ of mandamus should not be awarded against them as prayed for in the petition. On December 17, 1970, the petition of certain voters to intervene as parties was denied. Bessie Allen who, on November 10, 1970, was appointed by the County Court of Marshall County as Sheriff of Marshall County to fill the vacancy in that office resulting from the death of Robert L. Eller who died while occupying that office on October 23, 1970, and the County Court of Marshall County, upon their petition, were permitted to intervene as parties defendant. On February 11, 1971, a hearing was held at which the testimony of several witnesses was adduced, a written stipulation of facts was filed, and the case was submitted for decision upon the pleadings, the stipulation, and the testimony of the witnesses.

By its final judgment rendered February 26, 1971, the circuit court awarded a writ of mandamus which commanded the defendants, Richard L. Burley, Charles B. Helinski and James W. Myers, Commissioners of the County Court of Marshall County, and as such the Board of Canvassers of that county, to reconvene as the Board of Canvassers, to ascertain the result of the election for the office of Sheriff of Marshall County on November 3, 1970, to record the result of such election, and to issue a certificate of the result of the election to the person receiving the highest number of votes for that office at that election, and commended the defendant, the County Court of Marshall County, to receive such certificate of the result of the election and to qualify the person shown to have received the highest number of votes for the office of sheriff at the election, if such person be otherwise qualified to serve as Sheriff of Marshall County, and to permit such person to give bond as required by law.

The Judge of the Circuit Court filed a written opinion giving the reasons for his decision and made the opinion a part of the record in this proceeding.

To the final judgment rendered by the circuit court February 26, 1971, this Court granted this writ of error March 29, 1971, upon the application of the defendant, Bessie Allen. Having obtained leave of this Court to move to reverse the judgment of the circuit court, she moved the Court to reverse the final judgment of the circuit court and this case was submitted for decision in this Court upon the record in the trial court, upon the motion to reverse, and upon the briefs and the oral arguments of the attorneys for the defendant Bessie Allen and of the attorneys for the petitioner Brooks Miller.

On June 22, 1971, this Court sustained the motion to reverse and held that the petitioner, Brooks Miller, was not legally elected in the general election of November 3, 1970 to the office of Sheriff of Marshall County, and that the County Court of Marshall County was legally authorized to appoint the defendant Bessie Allen as Sheriff for the unexpired term, and reversed the final judgment of the Circuit Court of Marshall County.

Upon the petition of Brooks Miller, this Court by order entered November 12, 1971, granted a rehearing of this case. On January 25, 1972, the case was submitted for decision upon the petition for rehearing, upon the motion of the defendant Bessie Allen to reverse the judgment of the circuit court, upon the record, including the pleadings, the stipulation of facts and the transcript of the evidence, and upon the briefs and the oral arguments of the attorneys in behalf of the respective parties.

There is little if any dispute in the material facts in this proceeding.

Robert L. Eller, the duly elected and acting Sheriff of Marshall County, West Virginia, died October 23, 1970 at approximately 3:45 o'clock in the afternoon as a result of injuries received in an automobile accident some time in August of that year. His death created a vacancy in the office of sheriff and the next general election following his death was fixed by law and held on November 3, 1970. It appears from the written stipulation and the testimony of witnesses that the voters and members of the public, through news media, particularly newspapers of wide circulation published in nearby Wheeling and in Moundsville, were informed by the Prosecuting Attorney of Marshall County, who was so advised by an Assistant Attorney General of this State, that there would be no election for sheriff and that no write-in votes for that office should be counted at the general election on November 3, 1970, and also that the public and the voters were advised through the news media by an attorney of Marshall County to cast write-in votes for the office of sheriff at that election. These conflicting reports produced confusion and misunderstandings among the eligible voters and presumably prevented many eligible voters of Marshall County from casting votes for the office of sheriff at the general election. Despite the foregoing conflicting opinions by the news media and various persons, 1,087 eligible voters of the approximately 10,516 voters casting votes for other candidates at the general election cast 1,087 write-in votes for the office of sheriff. Of that number the petitioner received 557 write-in votes for the office of sheriff which was a majority of the 1,087 write-in votes cast for that office.

There was no announcement or notice by the County Court of the holding of the general election for the office of sheriff or of a vacancy in that office, and there was no newspaper advertising, no nomination or selection of a candidate by any political executive committee or by a chairman of any such committee, no stickers to be appended to the ballot by the petitioner, and only approximately ten days elapsed between the death of the sheriff and the succeeding general election on November 3, 1970. The official ballot for the election, which had been printed before the death of the sheriff and before the vacancy in that office occurred, contained no candidate for the office of sheriff and no designated space was provided on the ballot for a write-in vote for the office of sheriff.

The County Court of Marshall County, sitting as a Board of Canvassers, refused to count the foregoing write-in votes for the office of sheriff or to certify the results of such write-in votes, although it was requested to do...