Nelson v. Nash
| Decision Date | 29 February 1944 |
| Docket Number | 9517. |
| Citation | 29 S.E.2d 253,126 W.Va. 568 |
| Parties | NELSON v. NASH. |
| Court | West Virginia Supreme Court |
E L. Hogsett and B. C. Tynes, both of Huntington, for plaintiff in error.
Marcum & Gibson and Geo. I. Neal, all of Huntington, for defendant in error.
This writ of error was granted to review an order of the Circuit Court of Cabell County, which dismissed an election contest on the ground that the County Court of Cabell County was without jurisdiction to proceed further therein.
R. W Nelson was the nominee of the Republican party and T. Henry Nash was the nominee of the Democratic party for the office of Commissioner of the County Court of Cabell County, and they were voted for at the general election on November 3, 1942. The canvass of the election disclosed that Nash received a majority of the votes cast. Nelson in due time demanded and was granted a recount, the result of which also disclosed that Nash had received a majority of the ballots cast.
On December 24, 1942, Nelson served a notice of contest of the election on Nash, stating therein that the notice would be presented to the County Court of Cabell County on December 26, 1942. On the last-mentioned date, Nelson and Nash appeared by counsel and after the notice was filed, they, by agreement, fixed January 11, 1943, as the date when the county court would commence the hearing of the contest. On January 8, 1943, Nash's attorney requested a continuance of the hearing and by an agreed order, entered on that date the hearing of the contest was continued from January 11, 1943, to February 15, 1943. In the interim between January 11 and February 15, 1943, Nash's counsel retired from the case, and on the last-mentioned date he appeared by other counsel, who filed a motion to dismiss the proceeding on the grounds: (a) That the notice of contest was presented on December 26, 1942, rather than the first term of the court after service was had on Nash; and (b) that the county court, not having heard the contest within three months from the day of election, was then without jurisdiction to entertain, hear or determine the cause. Nash also demurred to the notice of contest. The county court overruled the motion to dismiss for lack of jurisdiction, but sustained the demurrer to the notice of contest without leave to amend and dismissed the proceeding.
On appeal to the Circuit Court of Cabell County, prosecuted by Nelson, that part of the order of the county court overruling the motion to dismiss was reversed and the contest dismissed on the ground that the county court had lost jurisdiction by failure to hear the contest resulting from the continuance thereof beyond three months from the date of election, to which last-mentioned judgment this writ of error and supersedeas was awarded.
The award of a writ of error and supersedeas in this Court instead of an appeal as designated by Code, 3-9-3, is not regarded as material. Williamson v. Hays, 25 W.Va. 609, 614; Ballouz v. Hart, 96 W.Va. 580, 123 S.E. 402.
The jurisdiction of county courts to hear contests as to county and district officers is conceded, being conferred by Article VIII, Section 24 of the Constitution of West Virginia, reading in part as follows: "*** They [county courts] shall, in all cases of contest, judge of the election, qualification and returns of their own members, and of all county and district officers, subject to such regulations, by appeal or otherwise, as may be prescribed by law. ***" It will be noted that the constitutional power so conferred is subject to regulations prescribed by law.
Nash contends that the presentation of notice to the county court on December 26, 1942, is a ground for dismissal. We do not agree. Nash was present at the time the notice of contest was presented. He made no objection to the filing thereof, and it is difficult to see where Nash or the electorate of Cabell County was prejudiced by failure of Nelson to wait until the next regular term of the County Court of Cabell County convened to present the notice of contest. If the presentation of the notice was premature, the hearing of the contest was not retarded thereby. The presentation of the notice to the court and filing thereof prior to the first regular term after service on Nash did not comply with the letter of the statute, but such action was within the spirit of the statutory regulation. Where a notice of contest is presented subsequent to the first term after service thereof, a different question is presented, as that would tend to hinder an expeditious hearing of the proceeding.
Nash relies on Code, 3-9-3, reading in part as follows, "*** The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from the day of election. ***", as being mandatory, and that the county court was deprived of jurisdiction of the contest by reason of failure to hear the same within the time limited by the statute. Nelson contends that the above quoted statutory provision is procedural and directory.
Legislative intent is dominant in determining whether a statutory provision is mandatory or otherwise. No general and satisfactory rule for ascertaining such intent has been formulated. It has been said by an eminent jurist in discussing the subject that, "*** you cannot safely go further than that in each case you must look to the subject-matter, consider the importance of the provision, and the relation of that provision to the general object intended to be secured by the act, and upon a review of the case in that aspect determine whether the enactment is what is called imperative or directory. ***". Lewis' Sutherland Statutory Construction, Vol. 2, 2nd Ed., page 1116; Crawford's Statutory Construction, page 517.
The public policy of this State calls for diligent and timely action by officers, boards, tribunals and courts in ascertaining and declaring the final results of an election. Election boards may not adjourn until all the votes are counted, and a certificate of result made and signed. Code 3-5-30. On the fifth day after election (Sundays excepted) the board of canvassers is required to convene to canvass the returns. Adjournments of such board may be made "but no longer than [is] absolutely necessary ". If a recount is desired, a demand therefor must be made before the result is officially declared. Code, 3-5-33; Duty v. Thompson, 79 W.Va. 415, 417, 91 S.E. 11; Beacon v. Board of Canvassers, 122 W.Va. 463, 10 S.E.2d 793. A contestant is required to give notice of...
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