State ex rel. Lawhead v. Kanawha County Court
| Decision Date | 23 July 1946 |
| Docket Number | 9868. |
| Parties | STATE ex rel. LAWHEAD v. KANAWHA COUNTY COURT et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
Under Section 26, Article 2, Chapter 50, Acts of the Legislature Regular Session, 1943 (Permanent Registration Law), the pendency of an election to be held within thirty days from the date demand is made by a qualified voter to register does not preclude his right to register. But the voter making such demand is only entitled to vote at an election to be held thirty days or more from the date thereof.
Philip H. Hill, of Charleston, for petitioner.
Dale G. Casto, of Charleston, for respondents.
Jean Powell Lawhead filed her petition in mandamus in this Court against the County Court of Kanawha County, West Virginia, a corporation, Carl Calvert, its president, James G. Carper and Mont Cavender, commissioners of said Court, Paul E. Wehrle clerk of said court, and Raymond Young, deputy clerk thereof seeking to compel respondents to register her as a voter in precinct No. 118, City of Charleston, Charleston District, Kanawha County, West Virginia.
The controlling facts are not in dispute. The municipal authorities of the City of Charleston, on July 3, 1946, called a special election to be held July 26, 1946, for the purpose of authorizing a special tax levy. Relator is a resident of precinct No. 118 above mentioned, having all other qualifications of a voter therein, but is not registered as such. On July 6, 1946, she appeared in person in the office of the Clerk of the County Court of Kanawha County, West Virginia, demanded that she be registered as a voter in said precinct, which demand was refused. The refusal to register relator was based on the ground that relator's demand was made within thirty days next preceding the special election above mentioned, and that under the provisions of Section 26 of the Permanent Registration Law, as amended by Chapter 50, Article 2, Acts of the Legislature, Regular Session, 1943, relator was not then entitled to be registered. Upon such refusal relator made no further effort to register with the county court or its clerk, but made this application for a rule in mandamus, which was granted by three Judges of this Court in vacation.
Statutes relating to permanent registration of voters will be found in Chapter 43, Article 2, Acts of the Legislature, Regular Session, 1941, Chapter 50, Article 2, Acts of the Legislature, 1943, and Chapter 62, Article 2, Acts of the Legislature, Regular Session, 1945. A statute of temporary application with reference to registration of persons in the armed services of the United States, not here pertinent, will be found in Chapter 1, Acts of the Legislature, Extraordinary Session, 1944. The Permanent Registration Law, as embodied in said Chapters 43, 50, and 62, will be hereinafter referred to as the Permanent Registration Law, noting the appropriate sections as designated in those chapters.
Respondents attempt to justify a refusal of the peremptory writ on two grounds: (a) That mandamus does not lie, relator having an adequate remedy by obtaining 'a hearing before the county court', under the provisions of Section 37, Permanent Registration Law; and (b) that registration of relator is inhibited by the provisions of Section 26, Permanent Registration Law, as amended, she having made demand for registration within thirty days of the time of holding the special election called by the municipal authorities of the City of Charleston.
Generally mandamus is not an appropriate remedy where another sufficient and specific remedy exists. State ex rel. Miller v. Board, 126 W.Va. 248, 27 S.E.2d 599; Payne v. Staunton, 55 W.Va. 202, 46 S.E. 927, 2 Ann.Cas. 74. 'Conversely, if such remedy is inadequate or is not as equally beneficial, convenient, and effective, mandamus is available.' State ex rel. Miller v. Board, supra [126 W.Va. 248, 27 S.E.2d 601]. See Hardin v. Foglesong, 117 W.Va. 544, 186 S.E. 308. Under the statute invoked by respondents, a hearing by the county court for the purpose of reviewing a case pertaining to registration cannot be held within twenty days immediately preceding an election in which the person desiring to register seeks to vote. Section 38, Permanent Registration Law, as amended.
Section 37, Permanent Registration law, giving the right to a hearing before the county court for the purpose of determining the right to register as a voter, provides for reviews by a circuit court and this Court. Reading Sections 37 and 38, as amended, together, it may be that the remedy therein provided is adequate. However, we express no opinion as to the effect of said sections, and the adequacy of the remedy therein provided.
The duties of respondents respecting registration are imposed by the Permanent Registration Law, which is an integral part of Chapter 3, Code. That the performance of duties imposed by Chapter 3, Code, may be enforced by mandamus is clearly set forth in the following language: * * *' Code, 3-5-41. The scope of mandamus as it existed at common law is extended by the provisions of the statute above quoted. The issuance of a writ of mandamus by this Court in matters pertaining to registration of voters, if the right to register is clear, is authorized by statute.
The right of suffrage is not an absolute, inherent and natural right. Brannon v. Perkey, 127 W.Va. 103, 107, 31 S.E.2d 898, 901, 158 A.L.R. 631; State v. Edwards, 95 W.Va. 599, 122 S.E. 272. But such right is so important and necessary for the maintenance and operation of our form of Government that the qualifications of voters are set forth with particularity in Section 1, Article IV of the Constitution of this State, as said section is supplemented by the Nineteenth Amendment to the Constitution of the United States. The Legislature has no power to diminish or increase the qualifications established by the Constitution. Brannon v. Perkey, supra; State v. Edwards, supra. Although registration for voting is indispensable to the exercise of the right of suffrage, and rests primarily on the constitutional qualifications of the registrant, the Legislature has the power and the duty to enact appropriate laws for the 'registration of all qualified voters in this State.' Article IV, Section 12, Constitution of West Virginia. Pursuant to the constitutional mandate, various statutes have been enacted establishing a system for the registration of voters, which was radically changed by the enactment of the Permanent Registration Law in the year 1941.
The general purpose of the constitutional provisions and statutes relative to voting and registration of voters is to permit all persons to vote who have the constitutional qualifications, and to prevent fraud in establishing the status of legal voters by means of registration. A person who is not registered is not entitled to vote, although qualified. Section 3, Permanent Registration...
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