State ex rel. Smoleski v. County Court of Hancock County

• Decision Date: 01 July 1969
• Docket Number: No. 12830,12830
• Citation: 168 S.E.2d 521,153 W.Va. 307
• Parties: . Supreme Court of Appeals of West Virginia
• Court: West Virginia Supreme Court

Page 521

168 S.E.2d 521

153 W.Va. 307

STATE ex rel. Lou SMOLESKI v. The COUNTY COURT OF HANCOCK COUNTY, West Virginia, a

corporation, et al.

No. 12830.

Supreme Court of Appeals of West Virginia.

Submitted April 30, 1969.

Decided July 1, 1969.

Syllabus by the Court

1. Mandamus is the proper remedy to compel a county court, acting as an election contest court, to comply with the mandate of this Court in relation to such election contest.

2. Though the writ of mandamus will be denied where another and sufficient remedy exists, if such other remedy is inadequate or is not equally as beneficial, convenient and effective, mandamus will lie.

3. The tendency in this jurisdiction is to enlarge and advance the scope of the remedy of mandamus, rather than to restrict and limit it, in order to afford the relief to which a party is entitled when there is no other adequate and complete legal remedy.

Preiser, Greene & Hunt, Stanley E. Preiser, W. Dale Greene, L. Alvin Hunt, Charleston, for relator.

Frank Cuomo, Jr., Wellsburg, Robert G. Altomare, Asst. Pros. Atty., Weirton, for respondents.

HAYMOND, President:

This is an original proceeding in mandamus instituted in this Court April 23, 1969, in which the petitioner, Lou Smoleski, Democratic Nominee for the office of Sheriff of Hancock County, West Virginia, seeks a writ to compel the defendants, The County Court of Hancock County, West Virginia, a corporation, Edward Nogay, William C. Graham and Joseph H. Manypenny, individually and as commissioners of the County Court of Hancock County, West Virginia, forthwith to reconvene as an election contest court and to hear and determine the pending election contest between the petitioner Lou Smoleski as contestant against the defendant Ralph J. Patrick, Jr., as contestee, to vacate and set aside the declaration in its order of April 17, 1969 that the contestee Ralph J. Patrick, Jr. is the duly elected sheriff of Hancock County, West Virginia; to permit the petitioner and the defendant to subpoena and to produce, at the hearing of such election contest, witnesses to testify concerning matters and things set forth in the notice of contest and the amended notice of contest of the contestant and the counter-notice of contest of the contestee, and, in the event the testimony of any such witnesses should be held to be incompetent and inadmissible, to permit each party to said election contest to vouch the record to show such testimony of any such witness; and to proceed to conduct and complete such election contest in the manner provided by law; to admit and consider all proper and pertinent testimony in behalf of either party; and to complete such election contest promptly and without delay and within the time prescribed by law.

Upon the petition and its exhibits, this Court issued a rule returnable April 29, 1969, at which time this proceeding was heard upon the petition and its exhibits, the separate demurrer of the defendant Ralph J. Patrick, Jr. to the petition, the answer of the defendants Edward Nogay, William C. Graham and Joseph H. Manypenny, individually and as commissioners of the County Court of Hancock County, West Virginia, the answer and cross-petition of the defendant Ralph J. Patrick, Jr. and the exhibits filed with that pleading, the demurrer of the petitioner to the cross-petition of the defendant Ralph J. Patrick, Jr., and the written briefs and the oral arguments of the attorneys for the respective parties, and was submitted for decision.

On May 2, 1969, this Court, by order, awarded a writ of mandamus which granted the relief prayed for in the petition.

This opinion is now filed for the purpose of stating the reasons for the action of this Court in granting the writ.

By order entered March 28, 1969, this Court awarded a writ in the mandamus proceeding of State ex rel. Smoleski v. The County Court of Hancock County, W.Va., 166 S.E.2d 777, which commanded the defendant, The County Court of Hancock County and the present defendants individually and as commissioners of the county court, 'to promptly assemble as an election contest court as provided by law and with diligence and expedition hear the evidence of the contestant and the contestee and render a decision within the time provided by law.'

Section 7, Article 7, Chapter 3, Code, 1931, as amended, dealing with the hearing by a county court of county and district election contests, provides, in part, that 'Subpoenas for witnesses for either party shall be issued by the clerk of the county court, and served as in other cases, and the witnesses shall be entitled to the same allowances and privileges, and be subject to the same penalties, as witnesses attending a circuit court in a civil suit.', and 'At the trial of such contest, the court shall hear all such legal and proper evidence that may be brought before it by either party, and may, if deemed necessary, require the production of the poll books, certificates and ballots deposited with its clerk, and examine the same.'

It is manifest from the pleadings that the county court did not comply with the mandate of this Court in the above cited mandamus proceeding in that, after reconvening, it refused to permit the contestant, the petitioner here, and his counsel to examine certain ballots in precincts Nos. 17, 20, 27 and 36; refused to issue subpoenas for some witnesses requested by him; refused to permit him to present evidence of certain witnesses in his behalf; and refused to permit him to offer evidence relating to matters alleged in his amended notice of contest and to incorporate in the record, by way of avowal, such rejected evidence. According to the undenied allegations of the answer and cross-petition of the defendant Ralph J. Patrick, Jr., it also refused to permit him, as contestee, and his counsel to examine certain ballots in precincts Nos. 34 and 37; refused to issue subpoenas for some witnesses requested by him; refused to permit him to call and present the evidence of certain witnesses in his behalf, and refused to allow him to...