State ex rel. Staley v. Wayne County Court, No. 10505

• Court: Supreme Court of West Virginia
• Citation: 137 W.Va. 431,73 S.E.2d 827
• Docket Number: No. 10505
• Parties: STATE ex rel. STALEY, v. WAYNE COUNTY COURT et al.
• Decision Date: 14 January 1953

Page 827

73 S.E.2d 827 137 W.Va. 431 STATE ex rel. STALEY,
v.
WAYNE COUNTY COURT et al. No. 10505. Supreme Court of Appeals of West Virginia. Submitted Sept. 4, 1952.
Decided Sept. 13, 1952.
Opinion Filed Jan. 14, 1953.

Page 828

Syllabus by the Court.

1. In the absence of evidence to the contrary recitals in an order of a county court sitting as a board of canvassers will be presumed to be correct and valid.

2. In the absence of evidence to the contrary public officers will be presumed to have properly performed their duties and not to have acted illegally, but regularly and in a lawful manner.

3. The declaration of the result of an election for a county [137 W.Va. 432] office is the finding by a county court sitting as a board of canvassers.

4. The provision of Section 2, Article 9, Chapter 3, Code, 1931, that the contestant in an election contest involving a county or district office shall give notice to the contestee within ten days after the result of the election is declared, is mandatory and must be strictly complied with; and unless such notice is given within that time a county court is without jurisdiction to entertain, hear and determine such contest.

5. A county court, which by reason of the failure of the contestant to give notice to the contestee in an election contest within ten days after the result of the election is declared is without jurisdiction to hear and determine such contest, will be restrained from entertaining, hearing and determining such contest by writ of prohibition from this Court.

William B. Hogg, Williamson, for relator.

Page 829

Okey P. Keadle, Thomas W. Harvey, Huntington, for respondents.

HAYMOND, President.

This is an original proceeding in prohibition instituted in this Court on August 7, 1952, by the petitioner G. Walter Staley against the defendants, the County Court of Wayne County, West Virginia, a corporation, S. P. Fry, Oscar Watts, and W. Frank Harrison, commissioners and members of the County Court of Wayne County, and as such members of the board of canvassers of that county, and Clifford Hatten. The petition seeks a writ from this Court to prohibit the county court and its members from entertaining jurisdiction of an election contest instituted in that court on July 12, 1952, by Clifford Hatten, as contestant,[137 W.Va. 433] against the petitioner, G. Walter Staley and Taylor Frazier, as contestees.

Upon the filing of the petition a rule was awarded returnable before this Court on September 3, 1952. On that day, answers having been filed by the defendants, the County Court of Wayne County, S. P. Fry, Oscar Watts, and W. Frank Harrison, commissioners and members of that court and as such members of the board of canvassers of Wayne County, and the defendant, Clifford Hatten, this proceeding was heard and submitted for decision upon the foregoing pleadings and evidence submitted by the petitioner in the form of authenticated copies of orders of the county court dated July 1, 1952, and August 4, 1952, a copy of the motion filed by G. Walter Staley, contestee, in the county court on August 4, 1952, to dismiss the election contest, and a duplicate original of the notice of contest of the contestant, Clifford Hatten, dated July 12, 1952, filed and docketed by that court on August 4, 1952, and upon the written briefs and the oral arguments in behalf of the respective parties. On September 6, 1952, by order entered on that day, this Court awarded a writ, as prayed for by the petitioner, which prohibited the defendants, the County Court of Wayne County, and S. P. Fry, Oscar Watts and W. Frank Harrison, commissioners, and each of them, from entertaining, hearing and determining the election contest then pending in that court, and from taking any further action in such election contest other than to dismiss it at the cost of the contestant Clifford Hatten. This opinion is now filed for the purpose of stating the reasons for the issuance of the writ.

The petition alleges in substance that at the primary election held in Wayne County on Tuesday, May 13, 1952, the petitioner, G. Walter Staley, the defendant Clifford Hatten, and Taylor Frazier were candidates for the Democratic nomination for sheriff of that county; that upon a canvass of the returns of the primary election it was ascertained that the petitioner Staley received the highest number of votes for such nomination and became the Democratic nominee for that office; that a recount was [137 W.Va. 434] demanded; that the recount, during which representatives of the petitioner and the defendant Clifford Hatten respectively were present, disclosed when completed that the petitioner Staley received 3573 votes, Hatten 3536 votes, and Frazier 1471 votes; that upon the completion of the recount on July 1, 1952, the defendant, the County Court of Wayne County sitting as the board of canvassers, officially declared the final results of the primary election, including the final result of the Democratic nomination for sheriff, declared the petitioner Staley to be the Democratic nominee for that office, directed the clerk of the county court to issue appropriate 'certificates of nomination' to the several candidates entitled to such certificates, and finally adjourned; that on July 12, 1952, the petitioner Staley was served with a notice, given by the defendant Clifford Hatten that he would contest the nomination of the petitioner Staley; that the notice of such election contest was not given to the petitioner Staley within ten days after the result of the primary election was declared as required by Section 2, Article 9, Chapter 3, Code, 1931; that on August 4, 1952, at a regular session of the County Court of Wayne County, the defendant Clifford Hatten caused such notice of election contest to be filed and docketed; that the petitioner Staley moved the court to quash the notice and to dismiss the election contest on the ground that the county court was without

Page 830

jurisdiction to entertain such contest; and that the county court, by a two to one vote of its members, overruled the motion of the petitioner and set the matter for hearing on August 11, 1952. The prayer of the petition is that the defendants the County Court of Wayne County and its members be prohibited from entertaining jurisdiction of the...