Terry v. Sencindiver, No. 12883

CourtSupreme Court of West Virginia
Writing for the CourtCAPLAN
Citation153 W.Va. 651,171 S.E.2d 480
PartiesLuke E. TERRY v. Vance E. SENCINDIVER.
Decision Date16 December 1969
Docket NumberNo. 12883

Page 480

171 S.E.2d 480
153 W.Va. 651
Luke E. TERRY
v.
Vance E. SENCINDIVER.
No. 12883.
Supreme Court of Appeals of West Virginia.
Submitted Nov. 18, 1969.
Decided Dec. 16, 1969.

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.

[153 W.Va. 652] 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

Page 481

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.

CAPLAN, Judge.

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 [153 W.Va. 653] 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 [153 W.Va. 654] is the winner of the Judgeship of the 31st Judicial Circuit of West Virginia by a total margin of 46 votes.

Page 482

'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...

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55 practice notes
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • March 12, 1986
    ...responsibility under West Virginia Code § 51-9-9 (1981 Replacement Vol.) becomes manifestly clear. See Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969) ("The word 'shall' in the absence of language in the statute showing a contrary intent on the part of the legislature......
  • State ex rel. Clark v. Blue Cross Blue Shield, No. 24625-24627.
    • United States
    • Supreme Court of West Virginia
    • December 4, 1998
    ...a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Point 2 Syllabus, Terry v. Sencindiver, 153 W.Va. 651[, 171 S.E.2d 480 (1969)].' Syl. pt. 3, Bounds v. State Workmen's Compensation Comm'r, 153 W.Va. 670, 172 S.E.2d 379 (1970)." Syl. pt. 9, State......
  • State v. Berrill, No. 23050
    • United States
    • Supreme Court of West Virginia
    • June 14, 1996
    ...showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).' Syl. pt. 5, Rogers v. Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986)." Syllabus point 3, Ruble v. Office of Secretar......
  • Eubanks v Hale, 1980596
    • United States
    • Supreme Court of Alabama
    • November 5, 1999
    ...where no other remedy would adequately correct distortions in election results caused by fraud or neglect); cf. Terry v. Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969). Indeed, this Court has the inherent authority - - and the duty -- to enforce the Constitution of the United States and......
  • Request a trial to view additional results
55 cases
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • March 12, 1986
    ...responsibility under West Virginia Code § 51-9-9 (1981 Replacement Vol.) becomes manifestly clear. See Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969) ("The word 'shall' in the absence of language in the statute showing a contrary intent on the part of the legislature......
  • State ex rel. Clark v. Blue Cross Blue Shield, No. 24625-24627.
    • United States
    • Supreme Court of West Virginia
    • December 4, 1998
    ...a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Point 2 Syllabus, Terry v. Sencindiver, 153 W.Va. 651[, 171 S.E.2d 480 (1969)].' Syl. pt. 3, Bounds v. State Workmen's Compensation Comm'r, 153 W.Va. 670, 172 S.E.2d 379 (1970)." Syl. pt. 9, State......
  • State v. Berrill, No. 23050
    • United States
    • Supreme Court of West Virginia
    • June 14, 1996
    ...showing a contrary intent on the part of the legislature, should be afforded a mandatory connotation." Syl. pt. 2, Terry v. Sencindiver, 153 W.Va. 651, 171 S.E.2d 480 (1969).' Syl. pt. 5, Rogers v. Hechler, 176 W.Va. 713, 348 S.E.2d 299 (1986)." Syllabus point 3, Ruble v. Office of Secretar......
  • Eubanks v Hale, 1980596
    • United States
    • Supreme Court of Alabama
    • November 5, 1999
    ...where no other remedy would adequately correct distortions in election results caused by fraud or neglect); cf. Terry v. Sencindiver, 153 W. Va. 651, 171 S.E.2d 480 (1969). Indeed, this Court has the inherent authority - - and the duty -- to enforce the Constitution of the United States and......
  • Request a trial to view additional results

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