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

• Decision Date: 28 March 1969
• Docket Number: No. 12816,12816
• Citation: 166 S.E.2d 777,153 W.Va. 21
• Court: West Virginia Supreme Court
• Parties: ., et al., and Ralph J. Patrick, Jr. Supreme Court of Appeals of West Virginia

Page 777

166 S.E.2d 777

153 W.Va. 21

STATE ex rel. Lou SMOLESKI etc. v. The COUNTY COURT OF HANCOCK COUNTY, etc., et al., and Ralph J. Patrick, Jr.

No. 12816.

Supreme Court of Appeals of West Virginia.

Submitted March 18, 1969.

Decided March 28, 1969.

Syllabus by the Court

1. The provision of Code, 3--7--6, as amended, that notice of contest for a county or district office shall be given within ten days after the result of an election has been declared means the last legal binding declaration of result.

2. The provision of Code, 3--7--7, as amended, that the hearing of an election contest 'may be continued from time to time * * * but not beyond three months from the day of election * * *' means that such hearing may not be continued beyond three months of the last legal binding declaration of result of such election and not three months from the calendar day on which the ballots were cast.

3. Those points of the syllabus and portions of the opinions in the cases of Qualls v. Bailey, W.Va., 164 S.E.2d 421, and Nelson v. Nash, 126 W.Va. 568 (29 S.E.2d 253) which are contrary to, or inconsistent with, the holding herein are disapproved and Syllabus Point 1 and the portions of the opinion in the cases of State ex rel. Palumbo v. County Court, and State ex rel. Loop v. County Court, 151 W.Va. 61 (150 S.E.2d 887) disapproved in the Qualls case, are reinstated.

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

Pinsky, Mahan, Barnes & Watson, Frank Cuomo, Jr., Wellsburg, for respondent Patrick.

BROWNING, Judge:

Petitioner Lou Smoleski, the Democratic nominee for the office of sheriff of Hancock County, filed his petition for a writ of mandamus in this Court on March 13, 1969. The petition alleges that at the general election held in Hancock County on November 5, 1968, he received the highest number of votes for the office of sheriff and upon completion of the canvass was issued a certificate of election on December 19, 1968. Thereafter on the petition of the respondent Ralph J. Patrick, Jr., the Republican nominee for sheriff, this Court issued a writ of mandamus requiring the board of canvassers to reconvene and recount the ballots cast in precinct 32 in accordance with the directions set forth in a written opinion handed down February 4, 1969, (State ex rel. Patrick, v. County Court of Hancock County, etc., W.Va., 165 S.E.2d 822) and on February 10, 1969, upon completion of such recount the oath of office as sheriff was administered to Ralph J. Patrick, Jr. The petition then alleges that within ten days after February 10, 1969, the petitioner served notice on Patrick of his intention to contest the election and filed the same with the county court with the request that they begin hearing such contest; that the court refused to do so but recessed until February 13, 1969; on February 13, the contest was continued until February 21 when it was continued to February 28; on February 28 it was continued until March 3 and on March 3 the contest was again continued until March 14, 1969, all over the objections of the petitioner. The petition then alleges that the respondent members of the county court intend to delay such hearings and to refuse to complete such contest within the three months permitted by law in an effort to deny to petitioner his right to the office of sheriff and prays that a writ of mandamus be awarded directing the respondents, other than Ralph Patrick, Jr., to forthwith hear the contest between the petitioner and Patrick and to complete the same prior to May 9, 1969, and to declare the true result of such election. On March 13, 1969, this Court issued a rule to show cause why the relief prayed for should not be granted returnable before this Court on March 18, 1969. On the return day the respondent Patrick appeared and filed his demurrer, plea in abatement, answer and motion to dismiss the rule on the ground that it was improvidently awarded. There was no appearance by the other respondents; that is, the county court and the individual members thereof, and the petitioner made an oral motion in open Court to dismiss Patrick as a party respondent, which motion was sustained by a majority of the Court while Judges Browning and Calhoun would refuse, and thereupon counsel for relator moved for a 'peremptory' writ of mandamus on the ground that there being no defense in the case he is, without more, entitled to the writ as prayed for.

The Constitution of this State has provided for contested elections between opposing candidates from the birth of the State. Article 8, Section 24, provides as far as is pertinent that county courts '* * * shall, in all cases of contest, judge of the election, qualification and returns of their own members, and of all county and district officers, subject to such regulations, by appeal or otherwise, as may be prescribed by law.' Chapter 3 of the Code, entitled Elections, implements this Constitutional provision and all statutory references herein are to articles and sections of that chapter as last amended by the Legislature of this State. The vital language of Code, 3--7--7, as amended, is: 'The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from The day of election.' (Italics supplied) The controlling issue in this proceeding is a determination of the meaning of these four italicized words. That requires a review of the history of the pertinent provisions of Code, 3--7--6 and 7, as amended. It also calls for an evaluation of the decisions of this Court particularly those following soon after material changes in the pertinent sections of the Code were made by the legislature during the last decade of the nineteenth century.

Chapter 100, Acts of the Legislature, 1863, provided, with regard to county and district offices, for a canvass of the returns and a declaration of results by the canvassers, except where notice was given of an intention to contest. The act then provided: '* * * In such cases no declaration of the result shall be made; but the board shall appoint a day, not less than five nor more than twenty days thereafter, when they will hear and consider such written depositions * * * and such other evidence, as may be produced. They may continue the hearing from time to time if it be shown that justice and right require it, but not beyond the twentieth day after the day first appointed for the hearing. * * * ' Chapter 118, Acts of the Legislature, 1872--3 changed this procedure somewhat, incorporating the language of the present Code, 3--7--6, as amended, as to the notice of contest in writing with a list of disputed votes within ten days after the declaration of result and changed the pertinent language of Code, 3--7--7, as amended, to read: '* * * They may continue the hearing from time to time if it be shown that justice and right require it, but not beyond the time designated for such officer to qualify. * * *' This latter provision also was apparently unsatisfactory and by the Acts of 1882, the legislature again amended 3--7--7 to read: 'The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from the day of election.' which language, as hereinbefore noted has been carried intact through subsequent amendments into the present statute.

Two other acts of the legislature: Chapter 89, Acts of 1891, Regular Session, Section 89, and Acts of the Legislature, Regular Session, 1893, Section 89, although neither refers to an election contest, are, we believe, important in resolving the specific issue presented for decision in this case. By the amendment of 1891 circuit courts were given jurisdiction of the writ of mandamus to require 'Any officer or person, upon whom any duty is devolved by this chapter * * * to perform the same * * *' By the 1893 amendment this Court was specifically empowered by mandamus to require election officials to perform the duties required of them under the chapter on Elections. This is the pertinent language: 'A Mandamus shall lie from the supreme court of appeals, or any one of the judges thereof in vacation, returnable before said court, to compel any officer herein to do and perform legally herein any duty required of him.' Prior to the Acts of 1891 and 1893 with regard to the applicability of mandamus in election cases it was necessary for a losing candidate to go through a contest before the county court and if still the loser seek a review by way of certiorari to the circuit court. Thereafter if still unsuccessful he could petition this Court for a writ of error. Dunlevy v. County Court of Marshall County, 47 W.Va. 513, 35 S.E. 956, is an example of the delay that resulted under the old procedure. In that case Dunlevy and one Davis were opposing candidates for the office of county commissioner of the county of Marshall. Upon the canvass Dunlevy appeared to be the winner and Davis demanded a recount, at the end of which Davis had a majority of three. Dunlevy applied to the circuit court for a certiorari which was awarded and that court remanded the case with directions that the board of canvassers reconvene and recount certain illegally rejected ballots which would have resulted in the election of Dunlevy whereupon Davis obtained a writ of error from the Supreme Court of Appeals and the case was finally decided on March 24, 1900, approximately a year and a half after the election in November, 1898. Unfortunately, no cases interpreting the provisions of the Acts of 1863, 1872--3, or placing a contemporary interpretation on the 'three months' provision of 1882 have been found. However, the following statement in the Dunlevy opinion may be significant: 'Is Certiorari a proper remedy? It is certainly inadequate. It being a mere appellate process, subject to the law's delays, the term of office may expire before...