State Ex Rel. W. G. Peterkin v. City Council Of City Of Parkersburg.

• Decision Date: 29 January 1924
• Citation: 95 W.Va. 502
• Court: West Virginia Supreme Court
• Parties: State ex rel. W. G. Peterkin v. City Council of City of Parkersburg.

95 W.Va. 502

State ex rel. W. G. Peterkin

v.City Council of City of Parkersburg.

Supreme Court of Appeals of West Virginia.

Submitted January 9, 1924.

Decided January 29, 1924.

1. Municipal Corporations Grounds of Petition for Removal of

Officer Must Relate to Fitness or Official Conduct.

Under Section 21 of the Charter of Parkersburg" (Chapter 83, Acts 1911). providing for the removal of the holder of any elective office at special election to be called by the council upon a sufficient petition for the purpose being submitted to it by the city clerk, which shall contain a "general statement of the grounds" for which the removal of the officer is sought, and be signed by electors entitled to vote for his successor equal in number to at least twenty per centum of the entire vote for all the candidates for the office of mayor cast at the last preceding general municipal election, the grounds to be stated in the petition must relate to the fitness of such officer to hold office or his official conduct therein. (p. 507).

2. Same Affidavit to Petition for Removal of Officer Held Suffi-

cient.

The Act further provides that a signer of each "paper" making up the petition shall make affidavit thereto that the statements therein are true as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be. One affidavit to each "paper" will satisfy this requirement, although the paper may be composed of several sheets bound together containing signatures of the voters, (p. 513).

3. Same Inadequacy of Funds No Excuse for Refusal to Hold

Election to Remove Officer.

The council will not be permitted to defend its action in refusing to call such election when a proper petition for the purpose has been submitted to it by the city clerk, on the ground that the city is without available funds of the current fiscal year to meet the necessary expense of holding the election. (p. 513).

(McGinnis, Judge, dissenting.)

Original mandamus by the State, on the relation of W. G-. Peterkin, against the City Council of City of Parkersburg.

Writs refused.

W. G. Peterkin and Merrick & Smith, for relator.

Smith D. Turner and James S. McCluer, for respondent...

Litz, Judge:

At a municipal election held April 3d, 1923, in the city of Parkersburg for the election of a mayor and four councilmen to serve three years term of office beginning April 16th, 1923 J. S. Dunn, as mayor, and Okey De Vaughn, W. H. Dunbar, K. B. Stephenson, and Burdette Woodyard, as councilmen, were, on the face of the returns shown, and by the election board of the city declared, to have been elected; and each thereafter having qualified, since the 16th day of April, 1923, has been exercising the powers of his respective office.

In the election J. S. Dunn, as candidate for mayor, was opposed by W. B. Stout, and Okey DeVaughn, W. H Dunbar, K. B. Stephenson and Burdette Woodyard, as candidates for councilmen, were opposed by four other candidates; the said Burdette Woodyard receiving the lowest number of votes of any of the four successful candidates for councilmen.

Soon after the election board had ascertained, declared and published the results of the election, as shown by the face of the returns, W. E. Stout and Prank McKim, defeated candidates for mayor and councilmen, respectively,

demanded a recount by the board of the votes cast. This demand for recount having been refused by the board, W. E. Stout obtained from the circuit court of Wood county an alternative writ of mandamus for the purpose of compelling the board to make a recount of all the votes cast at the election for mayor; but upon a, hearing thereof the peremptory writ was denied. To this ruling of the circuit court a writ of error was granted.

On May 9th, 1923, Frank McKim secured from this Court an alternative writ of mandamus to compel a recount by the election board of all of the votes cast in the said election on behalf of the several candidates for councilmen; but the peremptory writ was refused in this proceeding on the ground that the election board was without power to make recount, no demand therefor having been presented until after the returns had been canvassed, the results ascertained, declared and published, and certificates of election issued to the successful candidates. McKim v. Brast, 94. W. Va. 122, 117 S. E. 875. Thereafter Stout's writ of error against the election board, upon his motion, was dismissed. In the meantime Stout and McKim instituted, before the election board, contest proceedings against Dunn and Woodyard which, having been decided adversely to the contestants, were by them appealed to the circuit court of Wood county, where the same are now pending.

In the month of November, 1923, separate petitions were circulated among the voters of Parkersburg for the removal of Dunn as mayor and Woodyard as one of the councilmen of the city, under Section 21 of the city charter, which in part provides:

"The holder of any elective office may be removed at any time by the electors qualified to vote for a successor of such incumbent. The procedure to effect the removal of an incumbent of an elective office shall be as follows: A petition signed by electors entitled to vote for a successor to the incumbent sought to be removed, equal in number to at least twenty per centum of the entire vote for all candidates for the office of mayor cast at the last preceding general municipal election, demanding an election of a successor of the person sought to be removed shall be filed with the city clerk, which petition shall contain a general statement of the grounds for which the removal is sought. The signatures to the petitions need not all be appended to one paper, but each signer shall add to his signature his place of residence, giving the street and number. One of the signers of each such paper shall make oath before an officer competent to administer oaths, that the statements therein made are true as he believes, and that each signature to the paper appended is the genuine signature of the person whose name it purports to be. Within ten days from the date of filing such petition, the city clerk shall examine and from the voter's register ascertain whether or not said petition is signed by the requisite number of qualified electors, and if necessary, the council shall allow him extra help for that purpose, and he shall attach to said petition his certificate showing the result of said examination. If, by the clerk's certificate, the petition is shown to be insufficient, it may be amended within ten days from the date of said certificate. The clerk shall, within ten days after such amendment, make like examination of the amended petition and if his certificate shall show the same to be insufficient, it shall be returned, to the person filing the same; without prejudice, however, to the filing of a new petition to the same effect. If the petition shall be deemed to be sufficient, the clerk shall submit the same to the council without delay. If the petition shall be found to be sufficient, the council shall order and fix a date for holding said election, not less than thirty days nor more than forty days from the date of the clerk's certificate to the council that a sufficient petition is filed." (Chapter 83, Acts of Legislature 1911.)

The petition for removal of Dunn, purporting to have been signed by 3219 qualified electors, and the petition for the removal of Woodyard, by 3192, were on the 28th day of November, 1923, submitted to and filed with the clerk of the city. The total number of votes cast at the election for both candidates for Mayor in the election was 8730.

The petition for the removal of Woodyard, for grounds, states that, "At said election there were eight candidates for city council, four to be elected, and that said Woodyard was shown, on the returns to have received the lowest vote of the four candidates declared to have been elected, and that one, Frank McKim, another candidate, was shown to have received the highest vote of the four other candidates; that an apparent majority of the votes east at said election was procured by fraud to be shown on the returns as having been cast for said Burdette Woodyard, and that at said city election illegal and fraudulent ballots were used and counted for said Burdette Woodyard in the election returns in such numbers as to show on the face of said returns a majority of votes for said Woodyard over said McKim, when in truth and in fact the majority of the qualified voters voting at said election had not voted for said Woodyard for said office but had voted for the said Frank McKim, another candidate for said office; that the declared result of said election is not a true expression of the will of the voters; and that the said Burdette Woodyard is now holding the office of member of the city council of the1 city of Parkersburg to which he was not honestly and fairly elected."

The petition for removal of Dunn as mayor, for grounds, likewise states: "That an apparent majority of the votes cast at said city election of April 3d, 1923, was procured by fraud to be shown on the returns as having been cast for said J. S. Dunn, and that at said city election illegal and fraudulent ballots were used and counted for said J. S. Dunn in the election returns in such numbers as to show on the face of said returns the majority of votes for said Dunn, when in truth and in fact a majority of the qualified voters voting at said election had not voted for said Dunn for the office of mayor, but had voted for W. E. Stout, the other candidate for said office; that the declared result of said election is not a true expression of the will of the voters; and that the said J. S. Dunn is now holding the office of mayor of the city of Parkersburg to which he was not honestly and fairly elected."

On December 7th, 1923, the city clerk certified that the petitions for the removal of Dunn and Woodyard had...