79 W. Va. 50 | W. Va. | 1916
Between Ira P. Baer and William Gore has arisen a controversy as to which of them received a plurality of votes cast in the June primary election for nomination as a .candidate for justice of the peace of Logan district, Logan county, to be voted for in the general election to be held November 7, 1916. The returns of the election, as ascertained by the commissioners and clerks conducting it, and by the county court as a board of canvassers, showed a plurality in favor of Gore, while upon appeal the circuit court found Baer nominated as a candidate, and not Gore, who assigns error.
These findings resulted from variant interpretations of the section of the primary election law that requires each voter to state upon oath his party affiliations, his age and residence, etc., as a prerequisite to the right to esercise the elective franchise at the polling place where he offers himself as a voter in a primary. §26a (13), ch. 3, Barnes’ Code. The section is: “On entering the election room, the voter shall announce his name, and if he is duly registered, or has obtained transfer as provided by law, he shall sign his name and place of residence in a book of the party whose ballot
The election commissioners and the board of canvassers apparently interpreted the provision quoted as directory only, while the circuit court treated it as mandatory. This diversity constitutes the real cause of the controversy, although other questions arise as incidental to the main issues to be adjudged on the writ of review. The provisions of the enactment are expressed in imperative terms. They are positive and unequivocal. Generally “shall”, when used in constitutions and statutes, leaves no way open for the substitution of discretion. 35 Cyc. 1451; Madderom v. Chicago, 194 Ill. 573; Coleman v. Eutaw, 157 Ala. 340; Sate v. Talty, 166 Mo. 559. All authorities coincide in holding mandatory all statutory requirements, although contained in an election law, if it appears reasonably certain the legislature intended them to have that effect. Morris v. Board of Canvassers, 49 W. Va. 262. This court in Daniel v. Simms, 49 W. Va. 554, interpreted as imperative a provision requiring each voter to place the names of all persons for whom he desired to vote in one column of the ballot and to designate the office to be filled by each of them. Hence, it seems obvious that the legislature intended that each elector who offers to vote in a primary should declare his party affiliation as a condition of
One of the many.reasons assigned and argned by counsel to show that a writ of error does not lie from this court to the circuit court, in proceedings of this nature, is that the .value of a nomination for an office is less than one hundred dollars. No value is alleged or proved; and, when measured by any recognized standard of pecuniary valuation, a nomination may not easily be appraised. But an exact appraisement of the subject matter of a controversy is not always indispensable. For an actual monetary value in excess of one hundred dollars is not essential to empower this court, on writ of error or appeal, to determine causes “involving the constitutionality of a law”. §3, art. 8, Const.; §4, ch. 113, and §1, ch. 135, Code; Williamson v. Musick, 60 W. Va. 532; Typewriter Co. v. Piggott, 50 W. Va. 1. Of course, to be adjudged the right to invoke this jurisdiction, it must appear with reasonable certainty, as obviously in this case it does appear, that a correct interpretation and construction of the challenged statute is vital to a just determination of the litigation. These provisions manifest an intention to make this requirement essential to confer on this court power and right to determine, on writ of error or appeal, controversies between parties where the matter in dispute is less in value than the jurisdictional amount. Not every charge of infirmity in an enactment, however, will so operate. A mere factitious or spurious assertion of constitutional invalidity will'not suffice. “The court will examine and determine for itself whether such claim is well founded; and, in order for jurisdiction to attach, it must affirmatively appear that a fairly debatable constitutional question was and is involved”. 3 C. J. 391. That an interpretation of the provision requiring an oath of party affiliation, in view of the constitutional provisions found in §11, art. 3, is vital to a correct solution of the questions herein involved, seems too obvious to permit of argument. The essential rights of the parties, those rights upon which the board of canvassers and the circuit court wholly disagreed, depend conclusively upon the legal validity of that requirement. It marks the point of divergence between the
Again, it is contended that the writ does not lie, because, although an appeal lies in such cases to the circuit court under the authority of the statute, it vests that court only with such power as and no more than the board of canvassers had and exercised, and that the action of both was ministerial. In support of this contention are cited Railway Co. v. Board of Public Works, 28 W. Va. 264, and Mackin v. County Court, 38 W. Va. 338, holding that by no appellate process can this court review the action of inferior tribunals exercising merely ministerial or administrative functions; that, to be appealable, the action must essentially be judicial in nature. If sound, the proposition urged against the right deniéd or restricted applies with the same degree of consistency to the right conferred by the primary act on the circuit courts. On them is bestowed generally functions purely judicial. Nevertheless, they may and do act, under legislative authority, in matters not strictly judicial. If the legislature may clothe and has clothed circuit courts with power so to act, why may it not also confer the same authority on this court? But we may inquire whether a canvass by the circuit court of primary election returns, under authority of the statute, is purely ministerial or administrative in nature. Does it not possess the essential elements of a judicial function? An affirmative answer seems to be justified by the distinctions noted in some of our decisions in tax assessment proceedings. The two cases cited to sustain the argument referred to limit the power of circuit courts to review assessments made by assessors as revised by the county courts when apparently administrative. But an adjudication of the tax-ability of any species of property results from the exercise of a judicial function, though involved in a tax assessment proceeding. Distilling Co. v. County Court, 62 W. Va. 442. And, while conceding the administrative character of the acts performed in assessing property for taxation by an assessor, and the review thereof by the county court, yet upon appeal by the party aggrieved, alleging illegality in the assessment,
Nor can the right of review on. writ of error reasonably be denied on the ground that the legislature did not expressly authorize it., As later announced herein, a re-canvass by the circuit court, under the statute providing therefor, partakes of the nature of a contest between rival claimants in an election for an office, and is to be governed and controlled by the same procedural regulations. When so considered and treated, both are contests, and “controversies” within the contemplation of §4, ch. 113, and §1, ch. 135, Code. There was no special authorization regarding the right of review by this court in post election contests under §3, ch. 6, Code. But if, as held in Williamson v. Munich, supra, a contest for an office is reviewable here on writ of error, so is a contest for a nomination under §26a22 of chapter 3. Both contain the essential elements of a controversy.
Passing to the assignments, it is argued that the circuit court erred in its adverse rulings on the motions severally made by Gore, who appeared specially for the purpose, to dismiss the appeal on the ground that the bond and notice required by chapter 6 of the Code were not given, and the record made by the board of canvassers was insufficient to warrant the appeal. To these rulings he timely’ excepted, as he also did to the action of the court on his objection to its
Tbe same conclusion seems warranted as to tbe notice, although for different reasons. “Tbe action of tbe board of canvassers, or of any political committee, at any primary election, may be'appealed from by any candidate thereat, to the circuit court of tbe county. All such contests shall be .governed by tbe provisions of the code of West Virginia, so far as tbe same are applicable, as found in chapter six thereof”. §26a22, ch. 3, Barnes' Code. Chapter 6 does of course contemplate a notice to set in motion contest proceedings. The apparent purpose is to advise the adverse party of the defects or irregularities relied on, to show the particulars in respect of which the contestant claims an office denied to him as the result of a canvass of the votes cast therefor, and to designate the votes cast for him and not counted, or cast for his opponent and counted, which erroneously have been included in the count or excluded from it in numbers sufficient to work an alteration of the result favorable to him. But it is not of individual votes east and not counted, but of the exclusion of the votes at two precincts of Logan district, deemed illegal because the electors entitled to vote thereat failed to designate their party affiliation as required by the primary law, that Gore complains. Both contestants knew this was the sole meritorious contention between them. They had that knowledge from the beginning.- That was the chief cause of the subsequent proceedings, the obvious origin and basis of the divergent opinions expressed respecting the votes cast and counted or excluded for that reason. The essence of the inquiry was the power to ascertain the result by excluding the votes so east. Upon that issue the ease was heard and determined. Gore and ,Baer remained personally present during the progress of the canvass, and to the same extent participated therein. Thus, it seems that every purpose to
By the next objection, Gore challenged the right of the circuit court to hear the matter de novo. The statute amply clothes that court with authority so to hear and determine the results of a primary. Why it may not perform that function under the power given, no convincing argument asserts and no sufficient answer suggests. By allowing an •appeal, the legislature evidently intended to confer the jurisdiction exercised in contest cases between rival claimants of •an office arising out of a general election, as required by §3, ch. 6, Code, and to hear de novo and justly determine the actual results of the primary. The section authorizing an •appeal denominates the appellate proceeding a contest, and points out the regulatory proceedings therefor. Apparently, the act placed both controversies in the same category, and prescribed the same procedural regulations to govern the mode of ascertaining the rights of the claimants of a primary nomination and the contestants for an office.
The vital contention is the assault made upon the constitutionality of the act requiring the voter to indicate by his oath his party affiliation before he is entitled to express by ballot -a choice between candidates in the primary election. In this discussion, it must be remembered always that we are dealing exclusively with a primary election law, and not with the right to vote in a general election. That right is not in issue now. The elections are fundamentally different. In a primary the voters of each political organization participating are conceded the privilege to determine for themselves by ballot who shall be their candidates for the different elective offices. Although voting at the same place and time, for the same purpose, they vote only within the party with which they affiliate. No impropriety appears, and none is urged, against the classification of voters by parties in a nomination election.
Moreover, primary elections are so far matters of public concern that, within legislative discretion unrestrained by any provision of the organic law of the state, they are objects of proper and reasonable regulations in the exercise of gov
' Finally, it is contended that the provision requiring each voter to state on oath the political organization with which he affiliates before he is entitled to vote in the primary violates the constitutional provisions that “no religions or political test oath shall be required as a prerequisite or qualification to vote”, and that with certain negative exceptions all male citizens twenty one years of age or over “shall be entitled to vote at all elections held within the counties in which they respectively reside”. But is the requirement of the primary election law of the political identification of the voter, verified by his signature and affivavit, in the nature of the test oath forbidden by the organic law? That identification is essential to effectuate the statute. Without that requirement, the law would be useless and inefficient. If electors can exercise the elective franchise in primaries indiscriminately, adverse partisans may dictate or procure the nomination of persons as candidates not desired by a majority of the voters of a different party organization, and thereby impose upon it undesirable nominees. But such requirement is not a test oath. It is a reasonable regulation, operating as a reciprocal protection and security against imposition by the voters of one political organization upon the adherents of another. It does pot tend to impair the elective franchise, or impinge upon any constitutional guaranty or inhibition. No one is denied the right to vote. It is merely a mode of ascertaining the party affiliation of the voter. It does not assume to test the right to vote, but to identify him with the party organization for whose candidates he desires to vote in the primary. As such it is upheld in Ladd v. Holmes, supra; State v. Drexel, 74 Neb. 776; Biter v. Douglass, supra; State v. Nichols, 50 Wash. 522; Hopper v. Stack, supra; Ex parte Wilson, 7 Okla. Cr. Rep. 624; Kelso v Cook, 110 N. E. 987; State v. Flaherty, supra. As announced by these and other authorities, to prescribe reasonable regulations for exercising the elective franchise in primaries is within legislative power and competency. The statute assailed is not an unreasonable regulation. Frequently, to protect the
These conclusions necessitate an affirmance of the judgment of which Gore complains.
Affirmed.