Terry v. Sencindiver
|153 W.Va. 651,171 S.E.2d 480
|16 December 1969
|Supreme Court of West Virginia
|Luke E. TERRY v. Vance E. SENCINDIVER.
Syllabus by the Court
1. A petition for appeal to this Court, whether it be from a judgment, decree or order of a circuit court under the provisions of Code, 1931, 58--5--3, or from a decision of a special court created under Code, 1931, 3--7--3, as amended, is properly filed when it is presented within the applicable statutory period to the clerk of this Court.
2. The word 'shall', in the absence of language in the statute showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation.
3. Where it clearly appears in an election contest that persons were permitted to vote after the hour of seven-thirty o'clock in the evening, prescribed by Code, 1931, 3--1--31, as amended, as the time when the polls shall close, the votes so cast shall be illegal and void.
4. Where illegal votes have been cast and have been commingled with the valid votes received in a precinct, making it impossible to purge such illegal votes, the entire vote of the precinct must be rejected if it appears that sufficient illegal votes were cast to affect, or leave in doubt, the result of said election.
Charnock & Charnock, John N. Charnock, Jr., Charleston, for petitioner.
Martin & Seibert, Clarence E. Martin, Jr., Martinsburg, for respondent.
This is an appeal from a decision of a special court convened pursuant to the provisions of Code, 1931, 3--7--3, as amended, for the purpose of determining which of two candidates was the duly elected Judge of the 31st Judicial Circuit.
At the general election held on November 5, 1968, the appellant, Luke E. Terry, sometimes referred to as 'contestant', was the candidate of the Republican Party and the appellee, Vance E. Sencindiver, sometimes referred to as 'contestee', was the candidate of the Democratic Party for the office of Judge of the 31st Judicial Circuit. This circuit is comprised of the counties of Berkeley, Jefferson and Morgan. At the conclusion of the canvass of the votes each of the aforesaid parties demanded a recount in each of the three counties. Such recounts were conducted and the result of the election was certified to the Secretary of State. The certification showed Mr. Sencindiver to be the winner by a margin of six votes and a certificate of election was duly issued to him. He is presently holding the office of Judge of the 31st Judicial Circuit.
Mr. Terry, desiring to contest the said election, filed his petition dated December 20, 1968, with the Honorable Hulett C. Smith, Governor of the State of West Virginia, pursuant to the provisions of Code, 1931, 3--7--3, as amended, and caused a notice of contest of election to be served upon the contestee. In his petition the contestant prayed that a special court be convened pursuant to the aforesaid statute to hear and determine all matters in contest in relation to this election and that he be declared duly elected to the subject office during and for the term beginning January 1, 1969. Mr. Terry therein designated D. H. Rogers, Jr., of Martinsburg, West Virginia, as his choice to serve as a member of the special court. C. Samuel Trump, of Berkeley Springs, West Virginia, was designated by Mr. Sencindiver, the contestee, as his selection as a member of the special court.
By Executive Order No. 1--69 the Governor appointed as the third member and presiding officer of the special court the Honorable K. K. Hall of Madison, West Virginia. The court was therein further directed to decide the election contest according to the law and evidence submitted to it and to certify its decision to the Governor. Accordingly, the case was considered upon the pleadings, sworn testimony, depositions and other evidence and by letter dated July 11, 1969, the decision of the court was submitted to the Honorable Arch A. Moore, Jr., Governor of the State of West Virginia. Along with the decision was forwarded the majority opinion which was written by Mr. Trump and concurred in by Mr. Hall. The opinion reflecting the decision of the court concluded as follows:
'It is the conclusion of the undersigned member of this Special Court that Vance E. Sencindiver is the winner of the Judgeship of the 31st Judicial Circuit of West Virginia by a total margin of 46 votes.
'If however the results of Precinct 38 are not excluded from the count, as I believe they ought to be, it would be my conclusion that Vance E. Sencindiver is the winner of said Judgeship by a total margin of seven votes.'
The minority opinion was submitted by Mr. Roders and expressed the view that 'Luke E. Terry should be declared elected by a majority of 5 votes.' It is from the decision of the majority that this appeal is prosecuted, the petition for appeal having been filed in the office of the clerk of this Court on August 9, 1969.
On September 3, 1969 the contestee filed his motion requesting that the petition of the contestant be dismissed on the ground he did not present his petition to the Supreme Court of Appeals or a judge thereof in vacation within the thirty-day period as provided by the statute. His contention is that filing with the clerk of the Court does not satisfy the statutory requirements and that neither the Court nor a judge in vacation issued any suspending order as allegedly required by the statute. Furthermore, the contestee contends that the contestant failed to sufficiently designate the errors committed by the special court.
The contestant in his petition questioned the validity of twenty-two ballots. In his answer the contestee submitted for consideration the validity of twenty-eight ballots. His answer further alleged that as a result of certain illegal practices in the conduct of the election at Precinct No. 38, Opequon District, Berkeley County, all votes cast at such precinct for this office should be rejected.
In relation to said Precinct No. 38 it is undisputed that 50--75 voters were permitted to vote after 7:30 P.M., the hour designated by the statute as the time when the polls shall be closed. It appears in the testimony and is undisputed that 50--75 voters were in line at the aforesaid closing time and that they were allowed to come into the building where the voting booths were located; that the outside doors were then locked and no one else was permitted to enter; and that voting by this group was not concluded until approximately 8:40 P.M. It is further admitted that these ballots were cast and commingled with all other ballots cast at that precinct. The decision of the special court in relation to Precinct No. 38 is based on its belief that the statute relating to the time for the closing of the polls is mandatory; that all votes cast after the said closing time are void; and, that such ballots being commingled with all the the votes cast would require the exclusion of votes cast in that precinct.
It was candidly admitted by counsel for the contestant, and such admission is borne out by the record, that if the special court were correct in excluding all of the votes cast in Precinct No. 38, the contestant could not prevail. The question thus presented is whether the provisions of the Code, 1931, 3--1--31, as amended, which provides in part: 'The polls shall be opened * * * at six-thirty o'clock in the forenoon and be closed at seven-thirty o'clock in the evening' are mandatory or merely directory.
In relation to the contestee's motion to dismiss this appeal it is noted that the language of the statute, Code, 1931, 3--7--3, as amended, provides that either party may appeal from the final decision of the special court by presenting his petition in writing 'to the supreme court of appeals, or a judge thereof in vacation * * *.' Compare this language to that used in Code, 1931, 58--5--3, which provides for the usual appeal to this Court, the pertinent part of which reads: 'Any person * * * wishing to obtain a writ of error, appeal or supersedeas * * * may present a petition therefor To the supreme court of appeals, or to a judge thereof in vacation * * *.' (Italics supplied) The same language is used in each statute in relation to the manner of presenting a petition for appeal. No one has ever questioned the propriety of filing a petition for appeal from a circuit court with the clerk of this Court nor is such procedure open to question. In view of the language used with respect to an appeal from a special court, we are firmly of the opinion that the filing of such petition with our clerk effects a proper presentation of the petition 'to the...
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