State ex rel. Palumbo v. County Court of Kanawha County, s. 12597
| Decision Date | 03 November 1966 |
| Docket Number | Nos. 12597,12598,s. 12597 |
| Citation | 151 W.Va. 61,150 S.E.2d 887 |
| Court | West Virginia Supreme Court |
| Parties | .Grover Smith, Jr., E. S. 'Bill' Thompson and J. Kemp McLaughlin, asCommissioners of said County Court of Kanawha County, West Virginia, and S.Grover Smith, Jr. STATE of West Virginia ex rel. James W. LOOP v. The COUNTY COURT OF KANAWHA COUNTY, West Virginia, a Corporation, and S.Grover Smith, Jr., E. S. 'Bill' Thompson and J. Kemp McLaughlin, asCommissioners of said County Court of Kanawha County, West Virginia, and L. E.Thompson. Supreme Court of Appeals of West Virginia |
Syllabus by the Court
1. The wording of the statute with regard to the three months period contained in Code, 3--7--7, as amended, beyond which an election contest is not to be prolonged, refers or pertains only to continuances of hearings from time to time in election contest cases in order to require such hearings to be completed as soon as possible after the date of the election.
2. A primary election contest must be determined within ten days of the date of the next election after the primary and if not completed by that time the contest shall stand dismissed. Code, 3--5--20, as amended.
3. A nunc pro tunc order must be based on some memorandum on the records relating back to the time it is to be effective and such order cannot be entered if the rights of the parties may be adversely affected thereby.
4. If orders have been entered in previous years fixing the terms of a county court and such terms have been followed by the county court, it is not necessary to enter an order fixing such terms of said court each year in order for such terms to be legal terms of such court.
5. An election contest should be held at the earliest possible time and should be commenced and ended within a comparatively short space of time.
6. The polar star for the guidance in the construction of statutes dealing with election contests is that they should be liberally construed, in order that the will of the people in the matter of choosing their public officers may not be defeated by merely technical objections.
7. The provision of Code, 3--7--7, as amended, dealing with when an election contest should be heard by a county court reads as follows: 'The 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 in such court.' The 'first term' contained in the statute means the immediate term or the present term of court in session when the notice is presented, in order to be consistent with the requirement that an election contest must be held at the earliest possible time and be commenced and ended within a comparatively short space of time.
Charles M. Love, John A. Amick, Kenneth L. Coghill, Charleston, for relator.
Charles G. Peters, George S. Sharp, Charleston, for respondents.
These cases which were consolidated for the purposes of argument and decision involve an identical point in the construction of a West Virginia Statute, with reference to in what term of a county court an election contest must be held. They arise out of a recount held in Kanawha County to determine the nominee for a position on the Democratic ticket for County Court and to determine the nominee for the fourteenth position on the Democratic ticket for House of Delegates, there being fourteen members of the House in that County to be elected in the general election of November, 1966. The Petitioners, Mario J. Palumbo and James W. Loop, were denied places on the general election ticket and demanded that the county court docket a contest.
The case arises specifically out of the refusal of the county court to set the contest for hearing in the July term of the court which was in progress at the time the recount ended and still in progress after the notice of contest had been properly served and presented to the county court for docketing. The court took the position that under the statute applicable the contest could not be heard until the term starting after the contest notice was presented to the court, and that term did not begin until October 1, 1966, which would have left insufficient time in all probability to determine the contest, appeal the results, and have the winner placed on the ballot for the general election in November, 1966.
Petitioners Palumbo and Loop each presented a petition praying that his contest be docketed immediately and proceedings started without delay.
Rules were issued by this Court on August 13, 1966, against the County Court and the various other parties concerned, commanding them to show cause why peremptory writs of mandamus should not be awarded as prayed for. These rules were returnable September 7, 1966, and the proceedings were consolidated and submitted to the Court for decision on arguments and briefs.
On September 13, 1966, an order was entered by the Court granting the writs prayed for and this opinion is now prepared giving the reasons for the Court's decision.
Petitioners Palumbo and Loop were candidates for nomination in the primary election held in Kanawha County on May 10, 1966. Palumbo ran against an incumbent member of the County Court, S. Grover Smith, Jr., who was declared the nominee by the Board of Canvassers. Similarly, Loop was declared the fifteenth place member out of a large field of which only fourteen could be nominated. In order to be nominated, he would have had to displace at least the fourteenth place man, L. E. 'Duck' Thompson, who was certified as holding the fourteenth place.
After the canvass but prior to the certification of the winners, the two petitioners demanded a recount, which was held by the county court sitting as canvassers. In the process of this recount, the official papers in connection with the election were examined in many precincts, but the county court, acting as a board of canvassers, again on July 20, 1966, certified the same winners as had been certified in the canvass.
Within ten days following this last certification, the petitioners gave detailed notices to the adverse parties that they would ask for a contest in accordance with Chapter 3, Article 7, Section 6, Code of West Virginia, alleging mainly as grounds that so much fraud and illegality had occurred in ten precincts in the case of Palumbo and in three precincts in the case of Loop as to taint the entire vote of those precincts and to make it impossible to ascertain the correct result; and the notices stated that petitioners, therefore, would ask that all the returns of these precincts be thrown out. Various allegations of fraud were detailed, such as deceased persons voting, persons voting from addresses that no longer existed, the signing of poll slips for persons who did not go to the polls through illness or other cause, buying of votes, and improper interference by precinct officials with voters. The throwing out of these returns would make Palumbo and Loop winners in their respective contests for nomination.
Following the service of these notices of contest, they were presented with proof of service to the county court on August 1, 1966, which was a date still in the July term of the court, and demand made that the contest be set for hearing. The county court, by a two to one vote, refused to docket the contest on the ground that it could not legally be set until the next regular term which would commence on October 1, 1966. This action of the court in refusing to hear the contests in the July term is the reason this case arose and writs of mandamus were sought from this Court to compel the county court to hold the hearings without delay.
A collateral issue was raised by an order of the county court entered July 13, 1966, which is discussed at length in this mandamus proceeding in the pleadings and briefs. Apparently for about fifty years the court had been accustomed to have four terms a year as required by the Constitution and various statutes, and at least for recent years an order had been entered by the court at its first meeting in January fixing the commencement of these four terms at the first secular or working day in each quarter of the year, that is, approximately January 1, April 1, July 1, and October 1, and these terms ran through each quarter to the last day of the quarter, so that the court was in continuous session, except for holidays or Sundays which might happen to intervene at the time the quarters of the year changed.
Through some inadvertence, no such order fixing terms was entered for the year 1966, but the court proceeded to hold its terms in accordance with previous years, so that it actually followed without an order the same schedule it had previously followed with an order. On July 13, 1966, the court, in an effort to correct this supposed failure to comply with the law requiring the setting of terms, entered what the parties refer to as a nunc pro tunc order attempting in the middle of the year to set the terms as they had formerly been set. This merely confirmed what was already being done in the way of holding terms. Petitioners allege that this order setting the next term for October was entered in an attempt to deprive them of their right to be heard, and that it is an improper nunc pro tunc order.
To the petitions for writs of mandamus, respondents filed joint and several answers and demurrers. Both answers and demurrers in effect raised the main legal question as to when this contest should have been docketed. The answer raises collateral points, such as that the nunc pro tunc order was entered in good faith and for no purpose of depriving petitioners of their rights, and that the petitioners were guilty of procrastination in the...
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