State ex rel. Plymale v. Garner
| Decision Date | 19 November 1962 |
| Docket Number | No. 12189,12189 |
| Citation | 128 S.E.2d 185,147 W.Va. 293 |
| Court | West Virginia Supreme Court |
| Parties | STATE of West Virginia ex rel. PLYMALE et al. v. George L. GARNER et al., etc., of City of Huntington, etc. |
Syllabus by the Court.
1. If a valid petition for a municipal home rule charter is filed with a city council under the provisions of Code, 8A-2-2, as amended, requesting said council to submit to the voters of the city the question: 'Shall a charter be framed by representatives of the voters?', the city council should provide by proper ordinance for an election on such question at any general election or regular municipal election occurring next after the petition is filed with the council if there is a reasonable interval between the filing of the petition and the election.
2. The city council or city clerk has the right and duty to determine the sufficiency of a petition filed under the provisions of Code, 8A-2-2, and amended, requesting the submission to the voters of the city the question of adopting a charter but such determination must be made within the prescribed time and if no specific time is set out in the statute then, in any event, within a reasonable time.
3. The fact that some signatures on a petition are not genuine does not authorize the rejection of the entire petition.
4. Those who are charged with the duty of passing or acting on the validity of the signatures on an initiative petition are subject to judicial control, and when a proceeding is instituted in a court all of the issues involved in the proceeding are to be determined by the court and not the parties.
5. When the validity of a petition is neither admitted nor denied by a party questioning the validity thereof after a mandamus proceeding involving the validity of such petition is instituted in a court with allegations in the pleading that the petition in question is valid, the burden is upon the party questioning the validity of the petition and if no evidence is taken or submitted thereon it will be presumed by the court that the petition is valid.
Beckett & Burford, Robert H. Burford, Huntington, for relators.
Maxwell W. Flesher, Selden S. McNeer, Huntington, for respondents.
This is an original proceeding in mandamus instituted in this Court by the petitioners, J. Fred Plymale, E. E. Sturm, Harry Yoho, A. M. Van Hoose, Howard L. Bailey and Oliver W. Spurlock, citizens, residents, qualified voters and electors of the City of Huntington, Cabell County, West Virginia, against the respondents, George L. Garner, Bert H. Early, Bob E. Myers, A. E. Harris, John J. Durkin, W. R. Moser and Harry S. Damron, members of the Municipal of the City of Huntington, and Florence Williams, City Clerk of said City.
Upon application to this Court, a rule in mandamus was granted requiring the respondents to show cause why a writ of mandamus should not be awarded against them requiring them to submit to the voters of the City of Huntington at the general election to be held on November 6, 1962, the question: 'Shall a charter be framed by representatives of the voters?' The rule was returnable September 5, 1962, but upon request of the parties a continuance was granted until September 11, 1962, and the case was submitted to this Court for decision on argument and briefs. By order entered September 25, 1962, this Court held that the petitioners herein were entitled to a writ of mandamus as prayed for and awarded such writ. This opinion has been prepared and filed for the purpose of stating the reasons for the Court's awarding of the writ as prayed for by the petitioners.
A joint and several demurrer and an answer of all the respondents except Bert H. Early were filed to the petition in mandamus and the separate demurrer and the answer of Bert H. Early, with exhibits filed in addition thereto, were filed by Early to the said petition. A stipulation of facts was filed and made a part of the record.
On July 9, 1962, the petitioners in this proceeding filed a petition with the Council of the City of Huntington, the respondents herein, purporting to bear the signatures of 15,572 voters of said city, requesting that the council provide by ordinance for submission to the voters at the general election to be held on November 6, 1962, the question: 'Shall a charter be framed by representatives of the voters?', under the provisions of Code, 8A-2-2, as amended.
On June 25, 1962, the Council of the City of Huntington adopted two ordinances, the first establishing a fee for refuse removal and the second a fee for fire protection, in accordance with the provisions of Code, 8-4-20, as amended. These fees were to become effective July 1, 1962, and were adopted for the purpose of producing over one-half million dollars in additional revenue for the city. On July 7, 1962, two petitions were filed with the Clerk of the City of Huntington protesting each of the fee ordinances under the provisions of Code, 8-4-20, as amended. Most of the relators in this present proceeding participated in and obtained the petitions protesting the ordinances for the refuse removal and fire protection fees.
Under the provisions of Code, 8-4-20, as amended, which was rewritten by the legislature after Chapter 8A was placed in the code, if thirty percent of the registered voters of the city, by written petition duly filed by them, protest against such ordinances they shall not become effective until they shall be ratified by a majority of the votes cast at a municipal election. The petition protesting the fire fee ordinance purported to contain the names of 17,842 voters and the petition protesting the refuse removal ordinance purported to contain the signatures of 18,524 voters. The City of Huntington has 46,159 registered voters.
Upon the receipt of the three petitions mentioned above they were examined by members of the City Council and it appeared that a number of the petitioners had signed the same petition more than once; that signatures of different petitioners had been signed by one person; that many of the petitioners gave addresses which were outside the City of Huntington and, in several instances, even in adjoining states; and that some of the petitioners were minors or not qualified voters. The council thereupon directed the clerk to examine the petitions to determine their sufficiency. A systematic procedure was initiated by the council involving the identification of each petitioner and the indexing in alphabetical order of each name on each petition. After identification and indexing the signatures on each petition were to be checked for duplications and, through the use of voter registration books, the validity of the signatures, current voter registration of the signers and other voter qualifications were to be determined.
The clerk adopted the procedure outlined above and on July 10, 1962, at the direction of the council began a process of checking the petitions protesting the refuse and fire fee ordinances because they were filed prior to the charter election petition. Four regular employees of the city were assigned full-time to this task and five additional full-time clerical workers were obtained for such work. At the time the stipulation of facts was filed in this case, which was September 11, 1962, about 4500 names had been checked on each of the petitions pertaining to the refuse and fire protection fees and about 1500 had been found or declared invalid on each. Only 458 signatures had been examined on the charter petition at that time, 112 of which were declared valid, 129 of which were declared invalid, and 217 of which had not been thoroughly checked for validity.
No formal challenge to the petition in question in this proceeding was made and neither the clerk nor the council had declared the petition valid or invalid at the time of the hearing in this Court, and the council had not taken any steps to adopt an ordinance for an election on the question: 'Shall a charter be framed by representatives of the voters?' As heretofore stated the next general election will be held in the City of Huntington on November 6, 1962. No other general election will be held until November 5, 1964, and the next regular municipal election will be held in the City of Huntington on the first Tuesday in June, 1965. Huntington is a Class I City.
This entire proceeding turns on the provisions of Code, 8A-2-2, as amended, which reads as follows:
'The governing body of a city may provide by ordinance for the submission to the voters of the city at any general election or at a regular or a special municipal election of the question, 'Shall a charter be framed by representatives of the voters?': Provided, however that the governing body of a city may not, without the petition of the voters, as hereinafter set forth, submit the same question to the voters more than once in any two year period after the effective date of this act.
'The governing body of a city shall, upon petition bearing the signatures, written in their own handwriting, of voters of the city equal in number to fifteen per centum, if a class I or class II city, and ten per centum, if a class III city, of the total registration of voters therein, or if there be no registration of voters then a like per centum of duly qualified voters for the last preceding general election, provide by ordinance for the submission to the voters of the city at any general election or at a regular municipal election of the question, 'Shall a charter be framed by representatives of the voters?'
'The governing body of a city shall provide by ordinance for a special election on said question if a petition bearing the signatures in their own handwriting of voters of the city equal in number to fifteen per centum if a class I or class II city, and ten per centum if a class III city, of the total...
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