Stafford v. County Court.
| Decision Date | 27 May 1905 |
| Parties | Stafford v. County Court. |
| Court | West Virginia Supreme Court |
The provision of section 2, chapter 6, Code of 1899, that notice of a contest of election to county office shall be presented to the "first term" of the county court after notice of contest is delivered to the contestee, means the first regular term, not a special term. (p. 90).
The provision of section I, chapter 6, Code of 1899, that notice of contest for a county office shall be given within ten days after the result of an election has been declared, means the last legal binding declaration of result, where there have been two declarations, one irregular, (p. 93).
The provision of section 2, chapter 6, Code of 1899, that a pending contest for a county office shall not be continued more than three montns after the election, applies only to a contest actually pending, and does not apply to or limit the time for giving or filing notice of contest, (p. 90).
A commissioner of a county court is competent to act in a contest for a county office in that court though there is pending between him and another person a contest for his office involving the same matters of law or fact in such contest between others for another county office, (p. 91).
Petition by John L. Stafford for a writ of mandamus to the county court of Mingo county and others. Peremptory writ awarded.
Man damns Awarded.
Stokes & Bronson and Brown & Campbell, for petitioner.
Mollohan, McClintio & Mathews, S. U. G. Rhodes, and Sheppard & Goodykoontz, for respondents.
Brannon, President:
John L. Stafford and John A. Sheppard were candidates at the election 8th November, 1904, for the office of prosecuting attorney of Mingo county. A count by the canvassers of the returns of the election showed that Stafford had been elected and he was so declared. A recount was demanded by Sheppard. Pending the recount Stafford instituted a proceeding in the Supreme Court affecting such recount. And this Court awarded a mandamus directing the board of canvassers as to the manner and proceedure of such recount, commanding them to reconvene and recount the vote for said office under principles signified by this Court in its opinion, as will appear from a report of the case of Stafford v. Board of Canvassers, (49 S. E. 641,) 56 W. Va. 670. Pursuant to the mandate of the Supreme Court the canvassers met and proceeded with the recount, and on the 2nd day of February, 1905, the canvassers found and declared that Sheppard had been elected. On the 10th day of February, 1905, Stafford served a notice upon Sheppard that he would contest his election and file the notice with the county court at its next term. On the 24th day of February, the county court met in regular session, and Stafford presented to it the said notice of contest and asked that it be filed and the proceeding docketed in said county court, but the court refused to entertain or docket the notice; and later Stafford asked this Court to award a mandamus to compel the county court and its members to allow said notice of contest to be filed and to docket the contest x>roceeding and hear and determine the same.
One question in this case is this: After the notice of contest had been served a special term of the county court was held. Its call did not include this contested election case as a matter for its action, and the notice of contest was not presented at that special term, but it was presented at the next regular term. It is said that the county court was justified in refusing to docket the case on the ground that the notice was not presented to the county court at its first term after declaration of the result of the election, since the Code of 1899, chapter 6, section 3, says: "Notice of contest shall be presented to the county court at its first term after the same is delivered to the person whose election is contested * * and the same shall be docketed for trial at that Court." This presents the question whether a special term of the court is the first term after service of notice of contest under this statute. We think it is not. "When a statute speaks of terms, the terms fixed by law are meant, not special terms appointed by the court." Tompkins v. Clackamas, 11 Ore. 36(5; Smith v. Cutter, 10 Wend. 591. We think that, as a general rule, when a statute requires a thing to be done at a term of court it means a regular term. This is, and ought to be, the rule, unless something in the statute calls for another meaning. We should not incline to a construction which would defeat the contestant from having a hearing. But outside of that consideration we say, that the times of regular term are known to the people, while special terms have no regularity, sitting only when called for particular business specified in the call. No other business than that specified in the call can be acted on at a special term. Hamilton v. County Court, 38 W. Va. 71. The notice of a special term is of limited publication only posted at the court house door, perhaps for the short term of only two days. Few persons know of such session, and it would be a harsh construction of the statute to say that " First term " means a special term not known to the community at large. Such a construction would be hurtful and often defeat just rights and work surprise and wrong.
In support of the claim that the notice was presented to the county court too late it is further argued that the Code of 1899, chapter 6, section 3, contains the language, "The hearing may be continued from time to time by the court, if it be shown that justice and right require it, but not beyond three months from the date of election." From this statute it is argued that more than three months had passed from the election to the day when the notice of contest was presented to the county court, and as that statute contemplates that the contest must be ended within three months from the election, it follows that the notice commencing the contest cannot be filed in the court after three months from the election. To this we reply: 1. That language refers to a contest proceeding already docketed in the court. It presupposes that a notice of contest has been filed and the proceeding on the court docket, and it is designed to forbid delay and procrastination in the hearing and decision of the case. It is not designed to fix a time for the commencement of the proceeding. That is done by those other provisions of the statute fixing the time within which notice must be served by the contestant on the contestee, and fixing the time for the presentation of that notice to the county court. The provision just quoted has no relation to the commencement of the case, to the origination of the case, but only to its continuance as a pending case after it had been once brought into being. 2. Though it is not involved in this case, is not that provision forbidding a continuance beyond three months only directory? True, the language is prohibitory in saying that the case...
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