State ex rel. Staley v. Wayne County Court

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

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.

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 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.

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, 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 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 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 foregoing election contest.

The answer of the defendants, the County Court of Wayne County, S. P. Fry, Oscar Watts, and W. Frank Harrison, commissioners and members of the county court and as such members of the board of canvassers, admits that the recount of the votes cast in the primary election for the nomination for sheriff was completed on July 1, 1952, and that on that day the members of the county court and of the board of canvassers of Wayne County announced the results as set forth in the order of July 1, 1952, a copy of which was filed by the petitioner, but states that they 'are not advised as to the actual date when said order was entered upon the records of this Court', and alleges that 'certificates of nomination', dated July 3, 1952, were prepared in the office of the clerk of the county court, were signed by the members of the canvassing board on that day, and were subsequently delivered to the candidates entitled to receive them. The answer also admits the allegations of the petition relating to the action taken by the defendant Clifford Hatten and by the petitioner Staley before the county court on August 4, 1952, and states that the motion of the petitioner to quash the notice and to dismiss the election contest was overruled by a majority of the members of the county court and that the hearing of the contest was set for August 11, 1952. It also alleges that the members of the county court have no interest in the subject matter of the contest, except as members of that court; that they are impartial as to the petitioner Staley and the defendant Clifford Hatten; that they are advised that the certificate dated July 3, 1952, issued to the petitioner Staley, constituted their official action; and that the notice of contest was filed within the time permitted by law.

The answer of the defendant Clifford Hatten denies the allegations of the petition that the final results of the primary election were officially declared on July 1, 1952, and that the petitioner was declared to be the Democratic nominee for sheriff on that day, and alleges that the copy of the order dated July 1, 1952, filed by the petitioner, was not made, signed, or entered before August 4, 1952. It further alleges that no declaration or certificate of the result of the primary election as to the Democratic nomination for sheriff was made by the county court sitting as a board of canvassers until July 3, 1952; that on that day the members of the county court, as such board, executed certificates in writing declaring the results of such primary election; and that the notice of the primary election contest was served on the petitioner Staley within ten days after the final result of the primary election was declared.

The certified copy of the order dated July 1, 1952, filed by the petitioner, recites that at a regular session of the County Court of Wayne County, sitting as a board of canvassers, held at the courthouse on Tuesday, July 1, 1952, S. P. Fry, president, and Oscar Watts and W. Frank Harrison, commissioners, were present; that the court continued to recount the Democratic votes cast in the primary election held May 13, 1952, and recounted the votes cast at Precinct No. 37 of the county; that the court, having ascertained the results of the recount of the votes cast on May 13, 1952, at all the precincts in Wayne County, found the results for the office of sheriff to be that G. Walter Staley received 3573 votes, that Clifford Hatten received 3536 votes, and that Taylor Frazier received 1471 votes. The...