State ex rel. Pinson v. Varney, 10848

• Decision Date: 10 January 1957
• Docket Number: No. 10848,10848
• Citation: 142 W.Va. 105,96 S.E.2d 72
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. James E. PINSON et al. v. Riley VARNEY et al.

Page 72

96 S.E.2d 72

142 W.Va. 105

STATE ex rel. James E. PINSON et al. v. Riley VARNEY et al.

No. 10848.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 27, 1956.

Decided Oct. 9, 1956.

Opinion Filed Oct. 23, 1956.

Dissenting Opinion Jan. 10, 1957.

Syllabus by the Court.

1. The election provided for by Chapter 86 of the 1951 Acts of the Legislature, relating to election of members of boards of education, is a general election.

2. A vacancy existing in the membership of a board of education can be filled by the electorate only in the manner and at the times provided for by Chapter 86 of the 1951 Acts of the Legislature.

Bias & Bias, E. Gaujot Bias, W. Graham Smith, Jr., Slaven & Staker, Lant R Slaven, Robert J. Staker, J. Brooks Lawson, Williamson, for relators.

John J. Justice, John F. Bronson, Williamson, for respondents.

GIVEN, Judge.

The State, at the relation of James E. Pinson, Sid A. Ferrell, Mingo P. Keadle, Frank Allara and Howard S. Coleman, in a petition filed herein on the 11th day of September, 1956, prayed a peremptory writ of mandamus requiring the defendants Riley Varney, A. Wayne Hatfield and Leslie E. Phillips, as members of the Board of Ballot Commissioners of Mingo County, to honor and accept a certificate of announcement of the candidacy of Pinson for the office of member of the Board of Education of Mingo County, at the election to be held in that county on November 6, 1956. The certificate of announcement, in usual form, was presented to the board of ballot commissioners, which certificate the board summarily refused to accept or honor. Defendants William Adair, Charles Perry and Andrew Herald filed a demurrer to the petition, based on the premise that the facts alleged in the petition disclosed that no vacancy existed on the Board of Education of Mingo County to be filled at the election to be held November 6, 1956. No question of fact is in dispute. The case was heard on the petition, the demurrer thereto, briefs and oral arguments. An order was previously entered denying the writ prayed for, and stating that the reasons for denying the writ would be later announced in an opinion.

At the time of the holding of the primary election in Mingo County in May, 1956, Okey B. Glenn and C. Fred Shewey were elected members of the Board of Education of Mingo County to fill terms expiring December 31, 1956. Subsequent to the primary election, B. J. Webb resigned as a member of the board and Charles Perry was appointed by the board to fill the vacancy created by the Webb resignation. The regular term of Webb would have expired December 31, 1956, and the appointment of Perry was attempted to be made effective until that date.

On August 21, 1956, C. J. Hamilton and William Adair resigned as members of the board. On the same day, the board appointed William Adair to fill the vacancy created by the resignation of Hamilton. The regular term of Hamilton would have expired December 31, 1960, and the appointment of Adair to fill that vacancy was attempted to be made effective until that date. Also, on August 21, 1956, the board appointed C. Fred Shewey to fill the vacancy created by the resignation of William Adair. Shewey declined to accept the appointment. The board then appointed the defendant Andrew Herald to that vacancy. The regular term of Adair, terminated by his resignation, would have ended December 31, 1956, and the appointment of Herald to fill such vacancy was attempted to be made effective until that date.

It is the contention of petitioners that the appointments to fill the several vacancies are valid no longer than the date of the general election to be held in Mingo County November 6, 1956, and that candidates to fill such vacancies may be elected at that time. Defendants contend that the appointments to fill the vacancies are valid for the remainder of the regular terms for which the respective members were elected, except they concede, as we believe they must, that the appointment of William Adair cannot, in any circumstance, be valid subsequent to the time of the holding of the primary election in Mingo County in 1958, if a person then be elected and qualified to fill the unexpired term of C. J. Hamilton. Thus it appears that the problem before the Court is to determine whether the vacancies occurring in the membership of the board of education subsequent to the primary election held in May, 1956, are such as may be filled by the electorate at the election to be held in November of the same year.

Petitioners rely, primarily, at least, on the following statutory provisions: Code, 18-5-2, as amended, relating to vacancies in offices of members of boards of education, which, in so far as pertinent, reads: 'The board shall, by appointment, fill within thirty days any vacancy that occurs in its membership. Such appointments shall continue until the next general election, when the voters shall elect a successor for the unexpired term * * *'; Code, 3-1-8, which reads: 'Any vacancy in any elective office may be filled at a general election'; and Code, 3-10-1, which reads: 'Elections to fill vacancies shall be for the unexpired term, and shall be held at the same places, and superintended, conducted and returned, and the result ascertained, certified and declared, in the same manner, and by the same officers, as in general elections; and the persons elected, having first duly qualified, shall enter upon the duties of their respective offices'.

These statutory provisions, however, were enacted prior to the enactment of Chapter 86 of the 1951 Acts of the Legislature. Section 5b of that chapter, 3-4-5b, Michie's 1955 Code, in so far as deemed material, reads: 'An election for the purpose of electing members of the county board of education shall be held on the same date as the primary elections as now provided by law, but upon a non-partisan ballot printed for the purpose. In such non-partisan election the person receiving the highest number of votes shall be elected for a long term, and if more than one is to be elected for a long term, the one receiving the next highest shall be elected; and if more than two are to be elected the candidate or candidates receiving the next highest votes shall be declared elected for any short term or terms, as the case may be, to fill vacancies * * *'. It may be noticed that the quoted provision specifically provides for elections to fill any 'long term', or 'any short term or terms, as the case may be, to fill vacancies'.

Chapter 86 of the 1951 Acts of the Legislature, Section 5a, 3-4-5a, Michie's 1955 Code, also specifically provides the method of 'Announcement of Candidacy for Membership on Board of Education'. In so far as deemed pertinent, it reads: 'Any person who is eligible to hold office as a member of a county board of education may, at least thirty days prior to the day fixed for the primary election, file a certificate with the clerk of the circuit court of the county, declaring himself a candiate for election to such office * * *'. It is significant, we think, that the only statutory provision relating to announcements of candidates for offices of members of boards of education requires that such announcements be filed 'thirty days prior to the day fixed for the primary election'.

Chapter 86 of the 1951 Acts contained only three sections. One section related to the nomination of candidates, other than candidates for offices of members of boards of education; the next section dealt only with the announcement of candidates for election to offices of members of boards of education; and the last section, 5b, dealt with the election of members of boards of education. It seems clear, therefore, that in the enactment of those sections the Legislature observed clearly the distinction between a primary election for the nomination of candidates, and a general election for the purpose of electing to office. This necessarily seems so, since pertinent statutes eliminated any method of nominating candidates for members of boards of education, but required that such members be elected, not nominated, at 'an election' then authorized.

If the several statutory provisions cannot be harmonized, controlling effect must be given to the last enactment of the Legislature. '2. And where two distinct statutes stand in pari materia, and sections thereof are in irreconcilable conflict, that section must prevail which can properly be considered as the last expression of the law making power, this without regard to the relative position of such sections in the Code.' Board of Education v. County Court of Tyler County, 77 W.Va. 523, 87 S.E. 870. 'Consistency in statutes is of prime importance, and, in the absence of a showing to the contrary, all laws are presumed to be consistent with each other. Where it is possible to do so, it is the duty of the courts, in the construction of statutes, to harmonize and reconcile laws, and to adopt that construction of a statutory provision which harmonizes and reconciles it with other statutory provisions * * *'. 50 Am.Jur., Statutes, Section 363. See 82 C.J.S., Statutes, § 365; State ex rel. Revercomb v. O'Brien, W.Va., 91 S.E.2d 865; State ex rel. Thompson v. Morton, W.Va., 84 S.E.2d 791; State v. Snyder, 89 W.Va. 96, 108 S.E. 588; Farmers & Merchants Bank of Reedsville v. Kingwood National Bank, 85 W.Va. 371, 101 S.E. 734.

The basis of petitioners' position rests strongly, if not solely, on the use of the words 'general election' in the statutes quoted above. From that basis, they conclude that the election to be held in November, 1956, is the 'general election' referred to in the statutes quoted. We believe, however, that the election provided for in section 5b is constituted the general election for the purpose of electing persons to membership on bards of education, whether the election be for a 'long term', for a 'short term', or 'to fill vacancies'. The language seems to exclude any other...