State ex rel. Bess v. Black

• Decision Date: 07 December 1964
• Docket Number: No. 12383,12383
• Citation: 139 S.E.2d 166,149 W.Va. 124
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Pearl BESS et al., etc. v. Frank BLACK et al., etc., and the County Court of Cabell Co., W. Va., a Corp.

Page 166

139 S.E.2d 166

149 W.Va. 124

STATE ex rel. Pearl BESS et al., etc.

v.

Frank BLACK et al., etc., and the County Court of Cabell

Co., W. Va., a Corp.

No. 12383.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 20, 1964.

Decided Oct. 23, 1964.

Written Opinion Filed Dec. 1, 1964.

Dissenting Opinion Dec. 7, 1964.

Syllabus by the Court

1. Under the provisions of Code, 61-10-28, as amended, petitions or counterparts will be treated as one petition even though filed on different dates.

2. In the absence of a clear intent to the contrary appearing from the language

therein, Code, 61-10-28, as amended, will be regarded as providing for more than one local option election to determine whether the provisions of Code, 61-10-25, as amended, remain in force.

3. A writ of mandamus will issue to compel the holding of a local option election pursuant to the provisions of Code, 61-10-28, as amended, where it appears from the record that a sufficient number of signatories to a petition calling for such election remain unchecked and are therefore unchallenged.

4. The burden of establishing the invalidity of a petition is upon those who challenge its sufficiency.

5. In the absence of a definite date having been fixed by the legislature for the filing of a petition under Code, 61-10-28, as amended, a reasonable time will be presumed, and the determination of whether such a petition is filed within a reasonable time will depend upon the facts in each particular case.

Stanley E. Preiser, W. Dale Greene, Charleston, for relator.

Carl A. McComas, Huntington, for respondents.

BROWNING, Judge:

Petitioners, averring themselves to be eleven qualified voters and residents of Cabell County, West Virginia, instituted this original proceeding in this Court in behalf of themselves and 8,752 other qualified voters and residents of Cabell County seeking a writ of mandamus to compel the respondents, the individual members of the County Court of Cabell County and the County Court of Cabell County, to enter an order calling a local option election in that county pursuant to the provisions of Code, 61-10-28, as amended.

Code, 61-10-28, as amended, provides:

'The county court of any county is hereby authorized to call a local option election for the purpose of determining the will of the voters as to whether the provisions of section twenty-five of this article shall continue in effect in said county.

'A petition for such local option election shall be in the form hereinafter specified and shall be signed by qualified voters residing within said county equal to at least ten per cent of the persons qualified to vote within said county at the last general election. Said petition may be in any number of counterparts and shall be sufficient if substantially in the following form:

'PETITION ON LOCAL OPTION ELECTION RESPECTING WORK, LABOR OR BUSINESS ON SUNDAY IN ..... COUNTY, WEST VIRGINIA

'Each of the undersigned certifies that he or she is a person residing in ..... County, West Virginia, and is duly qualified to vote in said county under the laws of the State, and that his or her name, address and the date of signing this petition are correctly set forth below.

'The undersigned petition said county court to call and hold a local option election upon the following question: Shall the provisions of section 25, article 10, chapter 61 of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, continue in effect in ..... County, West Virginia?

'Name ........ ........

Address ........ ........

Date ... ...

'(Each person signing must specify either his postoffice address or his street number.)

'Upon the filing of a petition for a local option election in accordance with the provisions of this section, the county court shall enter an order calling a local option election and providing that the same shall be held at the same time and as a part of the next primary or general election to be held in said county. Said county court shall give notice of such local option election by publication in two newspapers of opposite politics and of general circulation within said county. Said notice shall be given at least once each week for two successive weeks prior to the date of said election. * * *'

The petition, in substance, alleges the filing of a petition under this section, before October 9, 1964, and after October 1, 1964, signed by 8,763 qualified voters residing in Cabell County and that 5,954 signatures of qualified voters residing in Cabell County were sufficient to comply with the 10% requirement of the statute; the provisions of the statute as to the calling of a local option election are mandatory but the respondents have arbitrarily and capriciously refused to abide thereby; and, the petition is valid in all respects and satisfies all requirements of the statute. The petition then prays for a writ of mandamus directed to respondents commanding them to enter an order calling a local option election to be held at the same time as the next general election to be held November 3, 1964, and to give the required notice thereof.

Filed as a part of the petition are the affidavit of Chad Ketcham, an attorney, who states that a petition in the statutory form, containing the names of 8,763 residents and voters of Cabell County, was filed with the County Court of Cabell County after October 1, 1964, and before October 9, 1964, and the affidavits of three of the petitioners, cash of whom states that he is familiar with the petition and that the same was prepared and signed after June 1, 1964, and filed with the County Court at the time previously mentioned.

This Court awarded a rule to show cause why the writ should not issue as prayed for on October 13, 1964, returnable October 20, 1964, and pursuant to the rule, respondents appeared and answered, denying: that a single petition containing 8,763 names was filed with the respondents; that the petition is valid in all respects and satisfies the requirements of the statute; that the respondents' action in refusing to call said election was arbitrary and capricious; and, that petitioners have shown a clear legal right to the relief sought. The answer then avers that: five separate petitions were filed, containing 6300, 204, 433, 324, and 1439 signatures, respectively, the first being filed on October 1, 1964, and the last being filed on October 8, 1964, the filing order of the last reciting '* * * Said petitions are hereby filed as a part of the petitions heretofore filed.'; the signature of petitioner, Pearl Bess, does not appear on any of the petitions and the signature of petitioner H. L. Markham does not appear on any of the petitions, nor does it appear on the voters' registration records of Cabell County; the signatures of several of the other petitioners appear multiple times, ranging from 2 to 5, on the petitions, the eleven petitioners thus accounting for eighteen of the purported 8,763 signatures; and, three of the signatures bear dates prior to June 1, 1964, two dated May 28, 1964, and one dated May 30, 1964. The above discrepancies with regard to the signatures are set forth in the affidavit of Elizabeth Daniel, a deputy clerk of the County Court of Cabell County. The answer also avers that, upon the filing of the first four petitions, the respondents directed the County Clerk to ascertain if sufficient signatures of persons qualified to vote appeared on the petitions, individually or collectively, to meet the requirements of the statute with the result that there were insufficient signatures to cause such election to be held. In support of this averment, two certificates of the clerk are filed as Exhibits 8 and 9 with the answer, the first, dated October 7, 1964, certifies that upon a preliminary survey, the petitions were found to contain 6,333 signatures, of which 2,293 were found to be invalid, the remaining 4,040, being less than 5,954, not being checked, and the second certificate, dated October 8, 1964, certifying that upon a further check the petitions were found to contain 7,324 names, of which 1,423 were determined to be invalid, the remaining 5,901 names not being checked.

The answer further asserts: that the question involved herein was submitted to the voters of Cabell County at the primary election held on May 12, 1964, resulting in a 'Yes' vote; that such was a final determination of the question in Cabell County; that absentee ballots and the voting machines have already been prepared for the election to be held on November 3, 1964; and, that 667 absentee ballots, on which the question does not appear, have been returned, with the consequent disfranchisement of these 667 voters.

Petitioners demurred to the answer, in substance asserting that the same is insufficient in law and constitutes no defense to the proceeding and replied, in part, attempting to resolve the discrepancies with regard to petitioners' signatures, and challenging the materiality and sufficiency of the various allegations of the answer. Petitioners also moved for a peremptory writ notwithstanding the answer on the principal grounds: (1) the answer is insufficient in law; (2) petitioners have established a prima facie case which has not been rebutted by respondents; (3) respondents have had six days since service of the rule upon them during which they have adduced no evidence nor made any attempt to adduce any evidence; and (4) the burden is upon the respondents to prove the petition invalid, which they have made no effort to do.

This Court, on October 23, 1964, issued the writ of mandamus sought, directing respondents to enter an order that a local option election be held in the county of Cabell at the general election on November 3, 1964, to determine whether the voters of that county desire that Code, 61-10-25, as amended, remain in effect in that county, and this opinion is now being handed down stating the reasons for such action.

On the return...