Wilson v. County Court of Logan County, 12569

• Decision Date: 24 May 1966
• Docket Number: No. 12569,12569
• Citation: 150 W.Va. 544,148 S.E.2d 353
• Court: West Virginia Supreme Court
• Parties: Amos C. WILSON and Horace England, Members of the Board of Ballot Commissioners of Logan County v. The COUNTY COURT OF LOGAN COUNTY, a Public Corporation, et al.

Page 353

148 S.E.2d 353

150 W.Va. 544

Amos C. WILSON and Horace England, Members of the Board of Ballot Commissioners of Logan County v. The COUNTY COURT OF LOGAN COUNTY, a Public Corporation, et al.

No. 12569.

Supreme Court of Appeals of West Virginia.

Submitted May 3, 1966.

Decision Order May 5, 1966.

Opinion Announced May 24, 1966.

Syllabus by the Court

1. The proper procedure for testing the sufficiency of an answer to the petition in a mandamus proceeding is by demurrer to the answer. An alleged defect in a verification of such an answer, if not raised by demurrer, will be regarded as having been waived.

2. A demurrer to an answer in a proceeding in mandamus admits the truth of all facts which are well pleaded in the answer.

3. It is mandatorily required by Section 27 of Article VIII of the Constitution of West Virginia, and by Code, 1931, 7--2--2, that each county of the state shall be laid off into magisterial districts. While, under the provisions of the statute, a county court is given broad powers in redistricting the county, it has no power or authority to abolish all magisterial districts.

4. In redistricting the county pursuant to the provisions of Code, 1931, 7--2--2, a county court acts in the exercise of a legislative or governmental function.

5. Under the provisions of Code, 1931, 7--2--2, a county court has the right and power in its discretion to select an appropriate time for redistricting the county, and this Court cannot interfere with a proper exercise of that discretion.

6. 'To entitle one to a writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.' Point 4, Syllabus, State ex rel. Zagula et al. v. Grossi, Clerk et al., 149 W.Va. 11 (138 S.E.2d 356).

Phillips & Willson, Robert D. Phillips, Logan, for relators.

Oval D. Damron, Pros. Atty., W. Bernard Smith, Asst. Pros. Atty., Logan, for respondents.

CALHOUN, Judge.

In this proceeding in mandamus, the petitioners, Amos C. Wilson and Horace England, as members of the board of ballot commissioners of Logan County, filed in this Court on April 19, 1966, their petition in which the County Court of Logan County, a public corporation, W. E. Bivens and W. C. Dingess, as commissioners, and Raymond Chafin, as clerk of the county court, were named as respondents.

The prayer of the petition is that a peremptory writ of mandamus be issued to require the County Court of Logan County to reconvene in special meeting and, at such meeting, enter an order 'voiding' its prior order of April 5, 1966, by which Logan County was redistricted so as thereafter to be composed of four magisterial districts instead of the three magisterial districts into which the county had theretofore been divided; to require Raymond Chafin, in his capacity as clerk of the county court, to deliver to the petitioners 'voting machine labels or other ballots' in his possession which contemplated that the primary election in Logan County thereafter to be held on May 10, 1966, would be on the basis of four rather than three magisterial districts; and further commanding the respondents to attach to the voting machines for the primary election the 'voting machine ballot labels certified and ordered by Petitioners,' and which were formulated on the basis of three rather than four magisterial districts.

The basic question which was presented for decision in this case was whether the upcoming primary election should be held in Logan County on the basis of three magisterial districts, in accordance with the contention of the petitioners, or on the basis of four magisterial districts, in accordance with the contention of the respondents. A determination of that basic question involved a determination of the validity of the county court's redistricting order of April 5, 1966.

On April 25, 1966, the Court awarded a rule in mandamus returnable on May 3, 1966. On the latter date the case was submitted for decision upon the petition; upon the answer of the respondents to the petition; upon the motion of the petitioners to exclude the answer; upon the demurrer of the petitioners to the answer; and upon briefs and oral arguments of counsel.

On May 5, 1966, the Court entered an order by which the motion to exclude the answer and the demurrer to the answer were severally overruled and by which the Court held and adjudged that the petitioners had not shown a clear legal right to the relief sought by them in their petition and by which the prayer of the petition accordingly was denied. By that order the Court reserved the right later to file a written opinion setting forth its reasons for the decision. This opinion has been prepared and is filed pursuant to the reservation in the order of the right to do so. On the day of the entry of the order by which the Court set forth its decision of the legal questions arising in the case, Judge Browning filed a dissenting opinion in writing in which he set forth the reasons for his disagreement with the Court's decision.

The procedure in this case is unusual in that the dissenting opinion was prepared and filed in advance of the preparation and filing of the majority opinion. Normally a dissenting opinion is in the nature of an expression of disagreement with matters decided and views stated in the majority opinion. In the unique circumstances of this case, the majority opinion necessarily, to some degree, must assume the nature of a reply to views expressed in the dissenting opinion.

In the dissenting opinion, the disagreement of its author has been stated in language which may be appropriately characterized as scathing and harshly denunciatory, rather than moderate and restrained. We of the majority are charged with having stubbornly emphasized Code, 1931, 7--2--2, and with having refused to give any consideration to applicable constitutional provisions and other pertinent statutes. We are charged with having raised 'in hauteur' our 'august judicial robes;' with having figuratively stepped over 'the feuding politicians' of Logan County; and with having acted 'pontifically.' If we properly comprehend the effect of this spectacular verbiage, it amounts to a charge that we of the majority have assumed an attitude of haughtiness and arrogance; that we have comported ourselves with unbecoming pomposity; and that we have heedlessly flaunted pertinent statutes and constitutional provisions. We are content to rely upon the Court's decision for our vindication.

The dissent seems to imply that this case arises from maneuvering of hostile political factions for personal reasons and for the purpose of avoiding an honest election in Logan County. The opinion states that the people who are responsible for this political maneuvering and consequent flood of litigation constitute a 'minute portion' of the citizens and voters and that ninety-nine percent of the sixty-five thousand citizens of Logan County 'are law- abiding, patriotic men and women striving constantly to establish better government' and to elect better men and women to political offices. We do not challenge the correctness of these percentages, though it may be that this and other cases recently in court serve to emphasize the disproportionate influence and potency of the one percent and to furnish a basis for a challenge to the ninety-nine percent, including the author of the dissenting opinion, to exert an influence for good in proportion to their numbers in the political and official life of the county.

We regard with indulgence and charity the fact that the author of the dissenting opinion saw fit to direct such harsh language toward his four associates on the Court because, as the dissenting opinion discloses, he is a native son of Logan County. If one stands too close to a mountain, it is impossible for him to view it in its broad outline and expanse. It may conceivably be that we of the majority, who are not natives or residents of Logan County have been able to approach a decision of this case in a more objective way than can be expected of a mere human being who, through the years, has lived so close to the situation which gives rise to the series of court cases of a political or factional nature which have arisen in recent months in Logan County.

The motion to strike the answer is based on the fact that the verification of the answer is dated April 2, 1966. This is an obvious typographical error, because the answer replies in detail to allegations of the petition and the petition was verified on April 16, 1966. It is reasonably apparent that, as a matter of fact, the verification should have been dated May 2, 1966, the day before the case was argued and submitted for decision. We are of the opinion that this irregularity is not of such critical character as to require us to exclude the answer from our consideration, especially without giving the respondents leave to correct the obvious error. This is especially true, we believe, because of the fact that the petitioners demurred to the answer and because of the fact that the case was orally argued before the Court on its merits before the motion to exclude was actually filed. Since this objection was not raised by demurrer, it must be regarded as waived. See State ex rel. Bika v. Ashworth, 128 W.Va. 1, 3, 35 S.E.2d 351, 352; Code, 1931, 56--4--36 and 56--4--65; 71 C.J.S. Pleading Section 564(2), page 1137.

The Rules of Civil Procedure do not apply to proceedings in mandamus. R.C.P. 81(a)(5). The demurrer, therefore, was a proper pleading by which to test the legal sufficiency of the allegations of the answer. Code, 1931, 56--4--36. The demurrer must be treated as having admitted the truth of all matters of fact which were well pleaded in the answer. 6 M.J., Demurrers, Section 28, page 26.

The demurrer charges (1) that all voting precincts in Logan County were abolished by the county court's redistricting order of April 5,...