State ex rel. Manchin v. Lively

Citation170 W.Va. 672,295 S.E.2d 912
Decision Date20 September 1982
Docket NumberNo. 15599,15599
PartiesSTATE ex rel. A. James MANCHIN, Secretary of State, etc. v. James E. LIVELY, et al.
CourtSupreme Court of West Virginia

Syllabus by the Court

1. The Secretary of State of West Virginia does have standing to bring an action to obtain a constructive enforcement of the State's election laws by virtue of his role as chief election official and the powers given to him in W.Va.Code, 3-1A-6.

2. "A statute is presumed to operate prospectively unless the intent that it shall operate retroactively is clearly expressed by its terms or is necessarily implied from the language of the statute." Syllabus Point 3, Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980).

3. "A law is not retroactive merely because part of the factual situation to which it is applied occurred prior to its enactment; only when it operates upon transactions which have been completed or upon rights which have been acquired or upon obligations which have existed prior to its passage can it be considered to be retroactive in application." Syllabus Point 3, Sizemore v. State Workmen's Compensation Commissioner, 159 W.Va. 100, 219 S.E.2d 912 (1975).

Timothy N. Barber, Chauncey H. Browning, Jr., Atty. Gen., Charleston, for petitioner.

Gene Carte, Asst. Pros. Atty. and Paul M. Blake, Jr., Pros. Atty., Fayetteville, for respondents.

MILLER, Chief Justice:

This is an original petition for a writ of mandamus in which the petitioner, Secretary of State A. James Manchin, requests that we require the respondents to recount the votes in the Fayette County June primary election in compliance with the procedures required in W.Va.Code, 3-4A-28(4) [1982]. Respondents contend that the petitioner has no standing to bring this action and that because the effective date of the statutory changes occurred after the June 1, 1982 primary, the new statute is not controlling. We disagree with respondents' position. 1

On March 13, 1982, the West Virginia Legislature amended Article 4A of Chapter 3 of the West Virginia Code. Among the changes, the new law provides in Section 28(4) that in any requested recount, where there has been electronic voting, five percent of the precincts shall be randomly selected and the ballot cards manually counted.

The effective date of the new act, which was June 11, 1982, was ninety days from passage. Proximate to that date, a candidate for the State Senate, Andrew McClung, requested a recount and that the recount be conducted under the requirements of the newly effective provision of W.Va.Code, 3-4A-28(4). Thereafter, the Secretary of State was contacted and, being of the view that the recount provision of the new act was applicable, the Secretary of State brought this action in his capacity as chief elections official under W.Va.Code, 3-1A-6, seeking to compel enforcement of the new Code provision. 2

I. STANDING

We have recently delineated the function and use of the writ of mandamus and have noted that cases involving election controversies are frequently the subject of mandamus proceedings due to a need for prompt disposition. Smith v. The W.Va. State Board of Education, 170 W.Va. 593, 295 S.E.2d 680 (1982). E.g., State ex rel. Bromelow v. Daniel, 163 W.Va. 532, 258 S.E.2d 119 (1979); State ex rel. Maloney v. McCartney, 159 W.Va. 513, 223 S.E.2d 607 (1976), appeal dismissed, Moore v. McCartney, 425 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190; State ex rel. Cline v. Hatfield, 145 W.Va. 611, 116 S.E.2d 703 (1960).

Whether the Secretary of State has standing to obtain what amounts to a construction of the applicability of the new election statute is essentially resolved by examining his official duties. He is denominated in W.Va.Code, 3-1A-6, as "the chief election official of the State." Under this Code provision, he has the power and duty to "investigate the administration of election laws" and "[i]t shall be his further duty to advise with election officials." 3 Furthermore, the Secretary of State is given under this statute, after consultation with the State election commission, the authority "to make, amend and rescind such rules, regulations and orders as may be necessary to carry out the policies of the Legislature" as they pertain to the election laws. The statute also goes on to provide that all election officials shall abide by such regulations and orders. 4

It is apparent that the Legislature, by designating the Secretary of State as the chief election official and by recognizing that his office should advise local election officials as to the election laws, intended to give him some position or standing in the election law field. There are obviously those occasions when local election officials will seek his guidance as to proper election practices or interpretations of the election laws. Where, as here, there exists some ambiguity as to whether a given provision of the election law is applicable, we believe that it is only common sense to permit the Secretary of State to have standing to resolve the question by bringing an appropriate action. Moreover, as stated in 67 C.J.S. Officers § 250 (1978), "[g]enerally, public officers have capacity to sue commensurate with their public trust or duties without express statutory authority."

The general reason advanced for the above-stated rule is that the capacity to sue is an important incident to the duties of public officers and it is often necessary that such an official be able to ensure that he is acting properly by seeking court guidance. E.g., Carter v. Blaine Casualty Investment Company, 45 F.2d 643 (D.Idaho 1930); Auditor General v. Lake George & Michigan Railroad Company, 82 Mich. 426, 46 N.W. 730 (1890); City of Wilburton v. King, 162 Okl. 32, 18 P.2d 1075 (1933); Industrial Accident Board v. Texas Workmen's Compensation Assigned Risk Pool, 490 S.W.2d 956 (Tex.Civ.App.1973). In State ex rel. Carman v. Sims, 145 W.Va. 289, 115 S.E.2d 140 (1960), we permitted the West Virginia State Tax Commissioner to bring an original mandamus in this Court against the auditor to compel payment of certain travel vouchers submitted by employees of the tax commissioner.

Of particular relevance is the case of Brown v. Superior Court of Los Angeles County, 5 Cal.3d 509, 487 P.2d 1224, 96 Cal.Rptr. 584 (1971), where the Secretary of State of California brought an original mandamus in the California Supreme Court to challenge a ruling that had declared an election statute to be unconstitutional. The court recognized that the Secretary of State had a beneficial standing in his role of chief election official which required him to advise other election officials on the meaning of the election laws. The court concluded that this role necessitated his ability to obtain court interpretation of election laws in order to properly administer them:

"His beneficial interest is amply demonstrated by a showing that he bears overall responsibility for administering the disclosure laws the constitutionality of which is now challenged. The uncertainty engendered by the respondent court's order of dismissal requires final resolution in order that the Secretary of State may be properly and fully informed with respect to these public responsibilities." 5 Cal.3d at 514, 487 P.2d at 1227, 96 Cal.Rptr. 587.

We, therefore, conclude that, under the foregoing authorities, the Secretary of State of West Virginia does have standing to bring an action to obtain a constructive enforcement of the State's election laws by virtue of his role as chief election official and the powers given to him in W.Va.Code, 3-1A-6. 5

II. EFFECTIVE DATE OF STATUTE

The respondents contend that although the effective date (June 11, 1982) of the amendments to W.Va.Code, 3-4A-1, et seq., was ninety days from the date of passage, the act should not have any applicability to any aspect of the June 1, 1982 election. This argument would have merit if new amendments were being applied to a voting transaction that was completed prior to June 11, 1982. However, the formal recount based on Candidate McClung's request was not scheduled to begin until June 15, 1982.

The particular section relied upon, W.Va.Code, 3-4A-28 [1982], amended the existing section to provide for a right upon the canvass and any requested recount, where voting was done by electronic voting, to have five percent of the precincts randomly selected and their ballots subject to a manual count. 6 We find that this provision has nothing to do with the initial voting procedures but is designed as a procedural device to come into play upon the canvass or any requested recount as a means of testing the accuracy of the tabulation obtained through the electronic voting device.

There is nothing within the terms of the new amendments which specifically exclude their applicability to the June 1982 primary election. The Legislature in 1978 changed the date of the primary election from the second Tuesday in May to the first Tuesday in June as of the year 1980. W.Va.Code, 3-5-1 [1978]. We must assume that, when the Legislature set the ninety-day effective date when the bill was passed in March of 1982, they were aware of the June 1982 primary date. Moreover, it is common knowledge that the recount provisions are typically post-election procedures. Consequently, we believe that the Legislature, acting with this knowledge, must have realized that the new amendments could well impact on recount procedures arising from the 1982 election. The Legislature's failure to specifically exclude the 1982 primary from the operation of the new amendments is contrasted with the fact that when the Legislature reset the primary date in W.Va.Code, 3-5-1 [1978], it made clear the particular primary on which the act would have its impact. 7 Consequently, we cannot imply any legislative intent to exclude this particular section from operating on the recount in this case.

Statutes are ordinarily given...

To continue reading

Request your trial
19 cases
  • White v. Manchin
    • United States
    • West Virginia Supreme Court
    • 13 Julio 1984
    ...election mandamus proceeding to the same degree of procedural vigor as an ordinary mandamus case." See also State ex rel. Manchin v. Lively, 295 S.E.2d 912, 913 n. 2 (W.Va.1982). Similarly, in State ex rel. Daugherty v. County Court, 127 W.Va. 35, 45, 31 S.E.2d 321, 326 (1944), this Court s......
  • State ex rel. Cohen v. Manchin
    • United States
    • West Virginia Supreme Court
    • 21 Noviembre 1984
    ...procedure in a number of cases where we were presented with an issue that required a prompt decision. E.g., State ex rel. Manchin v. Lively, --- W.Va. ---, 295 S.E.2d 912 (1982); State ex rel. Board of Education v. Rockefeller, 165 W. Va. 206, 281 S.E.2d 131 (1981); West Virginia Libertaria......
  • Secretary of State v. STATE LEGISLATURE
    • United States
    • Nevada Supreme Court
    • 14 Julio 2004
    ...The standing issue was discussed, however, during oral argument. 7. Nev. Const. art. 5, § 20. 8. State ex rel. Manchin v. Lively, 170 W.Va. 672, 295 S.E.2d 912, 915 (1982). 9. NRS 10. NRS 293.247(1). 11. NRS 293.182(1), (3). 12. NRS 293.190. 13. NRS 293.2696. 14. NRS 293.425; NRS 293.427. 1......
  • Conley v. Workers' Compensation Div.
    • United States
    • West Virginia Supreme Court
    • 20 Febrero 1997
    ...statute. Syl. pt. 3, Shanholtz v. Monongahela Power Co., 165 W.Va. 305, 270 S.E.2d 178 (1980). Syl. pt. 2, State ex rel. Manchin v. Lively, 170 W.Va. 655 , 295 S.E.2d 912 (1982).' Syl. pt. 4, Arnold v. Turek, 185 W.Va. 400, 407 S.E.2d 706 (1991).'...
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT