Tri-State Greyhound Racing, Inc. v. Johnson

• Citation: 230 S.E.2d 837,160 W.Va. 33
• Decision Date: 29 October 1976
• Docket Number: No. 13774,TRI-STATE,13774
• Court: Supreme Court of West Virginia
• Parties: GREYHOUND RACING, INC. v. Ted W. JOHNSON, President, et al., County Commission of Cabell County, West Virginia, a Public Corporation.

Page 837

230 S.E.2d 837

160 W.Va. 33

TRI-STATE GREYHOUND RACING, INC. v. Ted W. JOHNSON, President, et al., County Commission of

Cabell County, West Virginia, a Public Corporation.

No. 13774.

Supreme Court of Appeals of West Virginia.

October 29, 1976.

Syllabus by the Court

Where W.Va.Code, 19--23--20 (1975) provides 'A petition . . . must be signed by qualified voters residing within the county equal to at least fifteen percent of the qualified voters within said county at the last general election,' the term 'qualified voters' as used in the second part means those actually voting and not those registered to vote because it is impossible to determine from the registration rolls whether a person is qualified.

Edward V. Lee, Robert H. Burford, John H. Hankins, Huntington, Ern Reynolds, Manassas, for relator.

Robert K. Means, Huntington, for Dr. Sheppe.

Carney M. Layne, William C. Beatty and A. Michael Perry, Huntington, for Johnson and Dunfee.

NEELY, Justice:

This mandamus proceeding was brought for the purpose of interpreting the local option election provision of the West Virginia Racing Statute, W.Va.Code, 19--23--20 (1975). We granted a rule to show cause because the statute is highly ambiguous and required an interpretation before the November 1976 general election. We deny relief.

Relator, Tri-State Greyhound Racing, Inc., received tentative approval from the West Virginia Racing Commission on July 31, 1976 for the construction of a dog racetrack in Cabell County, West Virginia, and caused notice of the tentative approval to be published in the Herald-Dispatch, a Huntington newspaper of general circulation. On September 29, 1976, a counterpart petition under W.Va.Code, 19--23--20 (1975) was filed with the respondent County Commission of Cabell County requesting a local option election to be held at the next general election in Cabell County on November 2, 1976 on the question of the proposed construction and establishment of the dog racetrack in Cabell County.

On September 29, 1976, the Commission entered an order accepting the filing of the petition, declaring it to be timely filed, and declaring that it contained the signatures of 11,144 qualified voters residing in Cabell County. This number exceeded 15% Of both the registered voters within Cabell County at the last general election and 15% Of the number of persons who actually voted at the last general election. At the time the September 29 order was entered the Commission issued a call for a local option election to be held November 2, 1976, on the question of the construction and establishment of the dog racetrack. The Commission on October 1, 1976 amended this order in several minor ways which did not change the intent and purport of the original order.

At the time of the entry of these two orders a determination had not been made concerning the validity of the signatures on the counterpart petition. However, on October 12, 1976, the Clerk of the County Commission, at the Commission's request, reported at a regularly scheduled open meeting that he and his staff had determined, by a comparison of the counterpart petition with the voter registration records, that the petition contained the signatures of only 8,418 qualified voters and not 11,144. This report was accepted by the County Commission as being true, and by order entered October 15, 1976, the Commission declared the actual number of signatures of qualified voters to be 8,418 and further declared that there were 56,795 persons registered to vote in Cabell County at the time of the last general election. Fifteen percent of 56,795 is 8,519, or 101 more than the number of valid signatures actually submitted on the counterpart petition. Notwithstanding the apparent deficiency of 101 signatures, the respondents confirmed the September 29 and October 1 orders which declared the counterpart petition valid and called for the local option election.

I

The only substantial question presented to this Court is the proper interpretation of W.Va.Code, 19--23--20 (1975) which provides for a local option election after the filing of the counterpart petition. The relevant text of this section reads:

A petition for a local option election on the question of the proposed construction and establishment of a horse or dog racetrack must be signed by qualified voters residing within the county equal to at least fifteen percent of the qualified voters within said county at the last general election. Said petition may be in any number of counterparts, but must be filed with the county commission prior to the expiration of the sixty-day period specified in the notice published by the racing commission in accordance with the provisions of section nineteen ( § 19--23--19) of this article.

Relator argues that the language 'signed by qualified voters residing within the county equal to at least 15% Of the qualified voters within said county at the last general election' should be interpreted as requiring the signatures of 15% Of those persons registered to vote rather than 15% Of those persons who actually did vote. Obviously at any given election registered voters far exceed the number of persons actually exercising the franchise. Accordingly, under relator's interpretation of the statute a far greater number of signatures would be required on the petition for a local option election than under the...