Qualls v. Bailey

Decision Date25 October 1968
Docket NumberNo. 12772,12772
Citation164 S.E.2d 421,152 W.Va. 385
CourtWest Virginia Supreme Court
PartiesAlvie QUALLS v. Robert L. BAILEY, Sr.

Syllabus by the Court

1. The provisions of Code, 3--7--7, as amended, limiting the jurisdiction of a county court to hear and determine election contests to a three months period from the date of the election, applies to both primary and general elections and is mandatory; and, upon the expiration of such three months period, a county court is without jurisdiction to proceed to determine an election contest theretofore pending before it.

2. Syllabus Point ,1, State ex rel. Palumbo v. County Court of Kanawha County, 151 W.Va. 61 (150 S.E.2d 887), and portions of the opinion therein, are disapproved.

Robert L. Godbey, Huntington, for plaintiff in error.

Greene, Ketchum, Baker & Pauley, Lawrence L. Pauley, Huntington, for defendant in error.

BROWNING, Judge:

At the primary election held in Cabell County on May 14, 1968, Andrew J. Kitchen, Robert L. Bailey, Sr., Alvie Qualls and E. W. Pullen were candidates for nomination for the office of justice of the peace in Kyle District. Two of the four were to be nominated, and Kitchen and Bailey appeared to be the winners as shown upon the face of the returns. Upon a canvass of the returns, and after a recount as demanded by both Qualls and Bailey, the results were announced by the board of canvassers on June 25, 1968, showing Kitchen to have received the most votes, Bailey, 1,357 votes, and Qualls, 1,292 votes.

On June 27, 1968, Qualls, the appellee in this Court, served his notice of contest upon the appellant Bailey contesting the legality of Bailey's nomination on the grounds that Bailey's son, who served as an election official in Precinct 15 in Kyle District, was ineligible for appointment as such official and had performed unlawful acts in the course of such service. The legality of some 106 votes, as evidenced by poll slips, was also contested on grounds that the named voters did not reside at the addresses given and/or that the signatures on the poll slips varied from the signatures appearing on the permanent registration records and appellee moved that the entire vote cast in the democratic primary in Precinct 15 for the office of justice of the peace in Kyle District be declared invalid and disallowed. Bailey demurred to Qualls' notice of contest and filed a notice of contest in his own behalf against Qualls setting forth grounds not material here. Also, certain actions were filed with the Circuit Court of Cabell County and proceedings had thereon which are not pertinent to the factual situation on this appeal. Bailey's demurrer and a subsequent motion for a bill of particulars were overruled by the county court and the court convened to hear the election contest on July 22, 1968. Evidence in behalf of Qualls was taken on July 22, 23, 29 and 30, at which time he rested his case and Bailey moved for a directed verdict in his favor which was overruled. Five witnesses in behalf of Bailey were examined on August 1, 1968, at which time the hearing was adjourned until August 5, 1968, and witnesses were heard in behalf of Bailey, and in behalf of Qualls in rebuttal, on August 5, 6 and 8, 1968. It is noted in the record that Commissioner Dunfee, a member of the county court, was not present at the sessions on August 5, 6 and 8. At the conclusion of the testimony on August 8, both parties made the appropriate motions for relief in their behalf which were overruled. Bailey also moved the court, only two commissioners being present, for an immediate decision of the contest, which motion was refused. On September 3, 1968, in a 2--1 decision, Commissioner Dunfee participating, the court ordered all votes in Precinct 15 for both appellant and appellee disallowed and on the basis of returns from other precincts declared Qualls the nominee. A motion to reconsider was overruled on September 10, 1968, by a 1--1 decision, Commissioner Black being absent.

Bailey applied for a writ of error to the Circuit Court of Cabell County, which writ was granted and the decision of the county court affirmed by separate orders entered on October 7, 1968. On application of Bailey this Court granted a writ of error and supersedeas on October 15, 1968, and set the matter for hearing on October 22, 1968, at which time the case was argued and submitted. Prior to argument, Qualls, by counsel, moved to dismiss the appeal as improvidently awarded on the grounds: (1) the sole assignment of error as to the circuit court's ruling asserts that the circuit court refused a writ of error whereas it is apparent on the face of the petition that such writ was granted; (2) the order of the circuit court affirming the county court's decision was prepared by appellant's counsel without notice to appellee or his counsel and, therefore, is tantamount to judgment by consent; (3) the entry of such orders constitutes invited error; and (4) local rules were violated with respect to the entry of such orders.

In view of our opinion as to the law controlling the disposition of this proceeding, it is unnecessary to relate the evidence adduced before the county court or to discuss the various errors allegedly committed by the county court. However, for an indication of the evidence required to invalidate the entire vote cast in a precinct, see Williamson v. Musick, 60 W.Va. 59, 53 S.E. 706, and Hatfield v. Scaggs, 101 W.Va. 425, 133 S.E. 109. We also deem it unnecessary to discuss the questions raised by the motion to dismiss.

Code, 3--7--7, as amended, provides in part as follows:

'The county court shall hear and decide election contests initiated pursuant to the provisions of the preceding section * * *. At the trial of such contest, the court shall hear all such legal and proper evidence that may be brought before it by either party, and may, if deemed necessary, require the production of the poll books, certificates and ballots deposited with its clerk, and examine the same. 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. At the final trial of such contest the court shall declare the true result of such election, and cause the same to be entered on the records of the court. * * * Either the contestant or contestee shall have the right of appeal to the circuit court of the county from the final order or decision of the county court in such proceeding, * * * From the decision of the circuit court, an appeal shall lie to the supreme court of appeals, as in other cases, * * *'

Code, 3--5--20, as amended, provides in part:

'Any candidate for nomination * * * may contest the primary election before the county court of the county in which any primary election procedures, practices or results may be in issue. The procedure in such case shall be the same as that governing the contest of a general election by candidates for county offices or offices in magisterial districts. The decision of the county court upon such contest may be reviewed by the circuit court of the county and by the supreme court of appeals of the State. * * *

'* * *

'Any such contest, or petition for review, of a candidate for nomination not finally determined within ten days next preceding the date of the next election after the primary, or of a candidate for delegate to any convention within ten days next preceding the date fixed for holding the convention, shall stand dismissed, and the person shown by the face of the returns of the primary election to be nominated for any office shall be entitled to have his name printed upon the regular ballot to be voted at the election, and the person shown upon the face of the returns to have been elected as a delegate to any convention shall be entitled to sit in such convention as a delegate.'

Article VIII, Section 24 of the Constitution of West Virginia, entitled Powers of County Courts, provides insofar as pertinent that '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.' The office of justice of the peace is a district office and this Court held in Baer v. Gore, 79 W.Va. 50, 90 S.E. 530, L.R.A. 1917B, 723, that under the pertinent statutory provisions, now Code, 3--7--7, as amended, an appeal to the circuit court would lie to a ruling of the county court between two contestants for the nomination for the office of justice of the peace and that an appeal from the circuit court's ruling would lie to this Court. Chapter 3 of the Code of West Virginia contains the law governing elections in this state. The first paragraph of Article 1, Section 2 of that chapter provides, in part, that 'Unless restricted by the context, the provisions of this chapter shall apply to every general, primary, and special election in which candidates are nominated or elected * * *.' Article 7 is entitled Contested Elections. Section 7 of that article has been a part of the law of this state since its formation although it has, of course, been amended on several occasions. That section, as heretofore set out, after providing that the county court shall hear and decide election contests and detailing the procedure therefor, contains these two sentences: '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. At the final trial of such contest the court shall declare the true result of such election, and cause the same to be entered on the records of the court.' Apparently the first case in which that language was discussed in an opinion of this Court was Stafford, v. Mingo County Court, 58 W.Va. 88, 51 S.E. 2. Judge Brannon,...

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6 cases
  • Gaines v. Hawkins
    • United States
    • West Virginia Supreme Court
    • October 21, 1969
    ...the date of an election within which a county court may consider an election contest is mandatory and jurisdictional. Qualls v. Bailey, W.Va., pt. syl., 164 S.E.2d 421. Code, 1931, 58--3--4, requiring that a petition for appeal from a county court to a circuit court be presented within four......
  • State ex rel. Underwood v. Silverstein
    • United States
    • West Virginia Supreme Court
    • June 9, 1981
    ...if not met, result in lack of jurisdiction. State ex rel. Hager v. Oakley, 154 W.Va. 528, 177 S.E.2d 585 (1970) and Qualls v. Bailey, 152 W.Va. 385, 164 S.E.2d 421 (1968), overruled on other grounds, State ex rel. Smoleski v. County Court, 153 W.Va. 21, 166 S.E.2d 777 (1969), (involving the......
  • State ex rel. Hager v. Oakley
    • United States
    • West Virginia Supreme Court
    • November 30, 1970
    ...to decide such case after the three months period has elapsed. See Nelson v. Nash, 126 W.Va. 568, 29 S.E.2d 253; Qualls v. Bailey, 152 W.Va. 385, 164 S.E.2d 421. Even if the parties agree to the entry of an order deciding an election contest case after the three months period has elapsed, i......
  • Dement v. Pszczolkowski
    • United States
    • West Virginia Supreme Court
    • June 15, 2021
    ...v. County Court of Kanawha County , 151 W. Va. 61, 150 S.E.2d 887 (1966) [, overruled in part, on other grounds by Qualls v. Bailey , 152 W. Va. 385, 164 S.E.2d 421 (1968) ]." Syl. pt. 3, Barber v. Barber , 195 W. Va. 38, 464 S.E.2d 358 (1995). In the present case, the circuit court's order......
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