Simpson v. Stanton, No. 8624.

• Court: Supreme Court of West Virginia
• Writing for the Court: FOX
• Citation: 193 S.E. 64
• Parties: SIMPSON. v. STANTON et al.
• Decision Date: 28 September 1937
• Docket Number: No. 8624.

193 S.E. 64

SIMPSON.
v.
STANTON et al.

No. 8624.

Supreme Court of Appeals of West Virginia.

Sept. 28, 1937.

Syllabus by the Court.

1. Section 10, article 3, of the Constitution of West Virginia, properly applied, secures to a litigant a reasonable opportunity to be heard when the processes of the courts are invoked against him; and where that opportunity has been denied by the refusal to grant a reasonable time in which to prepare and file pleadings setting up his defense, this court will not pass on the merits of the case until opportunity is given to file such pleadings in the court of original jurisdiction, and a hearing had thereon in said court.

2. The due process of law guaranteed by the State and Federal Constitutions, when applied to procedure in the courts of the land, requires both notice and the right to be heard.

Error to Circuit Court, Harrison County.

Mandamus proceeding by E. L. Simpson against Cyril J. Stanton, Paul W. McKin-ney, and others. To review an order awarding a peremptory writ of mandamus, the last-named defendant brings error.

Reversed and remanded, with instructions.

[193 S.E. 65]

William G. Johnson, of Clarksburg, for plaintiffs in error.

Steptoe & Johnson and Leo P. Caulfield, all of Clarksburg, for defendant in error.

FOX, Judge.

On April 20, 1937, an election was held in the city of Clarksburg, to select a member of the water board and a member of the council from each of the nine wards of the city. In the election of the member of the water board, the voters of the entire city participated. Members of the council were selected by the voters of their respective wards. The term of the members of the council then in office was to end April 30th, following the election, and that of the new council to begin on the next succeeding day. Under the charter, the council in office constituted the board of canvassers to determine and declare the result of the election. In the seventh ward of the city, E. L. Simpson, the petitioner, and Paul W. McKinney, appellant herein, were candidates of the Democratic and Republican parties, respectively, for the office of councilman, and their names appeared on the ticket voted in that ward. Immediately under each of their names was the name of the candidate of their party for a member of the water board. No other names appeared on the ticket. At the head of the ticket were the respective party emblems, and, immediately below each, the circle in which the voters might make a cross and vote a straight ticket, and the tickets were then designated as "Democratic" and "Republican" tickets. To the left of the name of each candidate was placed a square in which the voters could put a cross, indicating their intention to vote for a certain candidate. The vote in the seventh ward was close. A canvass of the returns showed 871 votes for Simpson and 867 votes for McKinney. A recount was demanded by McKinney, during the progress of which questions were raised as to several ballots with the result that, as these questioned ballots were counted or rejected, it appeared that Simpson and McKinney had each received 869 votes. To reach this result the board of canvassers rejected as void and of no effect a ballot cast by a voter who placed a cross in the circle under the Republican emblem, and also placed a cross in the square before the name of Simpson and the Democratic candidate for member of the water board in the Democratic ticket Simpson contended that the voter intended to vote for him; that the ballot should have been counted for him and, if counted, would have shown his election.

The recount was hot completed until early in the morning of April 30th and the board of canvassers recessed until 6 o'clock in the evening of that day. When convened, notice was served on the members of the board that the petitioner herein would apply to the judge of the circuit court of Harrison county for a mandamus. The notice did not state the character of the writ sought, but along with it was delivered a copy of the petition which was afterwards filed, and which appears in the record of this proceeding, and which did set out that a writ would be asked to compel the board to count for Simpson the disputed ballot above described, and declare his election. Later in the evening said petition was filed and a rule in mandamus (improperly termed in the record an alternative writ) was issued, returnable to 10:30 o'clock p. m. of that day. In the meantime, after the service of the notice and petition, and before the issuance of the rule in mandamus; the majority of the council met and declared the election of McKinney by the process of breaking the alleged tie as the city charter provided could be done. The defendants in the petition were nine councilmen then in office, and who made up the board of canvassers, the city manager, the acting city clerk, and the appellant herein, Paul W. McKinney. An attempt was made to serve the rule on the defendants named therein. For some reason a majority of them were absent from their usual haunts that evening. Three of the councilmen appeared and waived service of the writ; no return of service was made as to two of them; two were served by delivery of the process to their respective wives; and the remaining two by the posting of the writ on the front door of their usual place of abode. It was served on the wife of the city clerk, and Paul W. McKinney, the party especially affected by the proceeding, appeared to the writ as will hereafter be...