*1 Qualls Alvie Robert L. Sr. Bailey,
(No. 12772) Submitted October 1968. Decided October plaintiff Godbey, Robert L. in error.
Greene, Ketchum, Pauley, & L. Pauley, Baker Lawrence for defendant in error. Judge:
Browning, County May on At election held in Cabell Bailey, Sr., Kitchen, L. Andrew J. Alvie Robert Qualls and were for nomination E. W. Pullen peace Kyle justice of District. for the office of Two nominated, Bailey four and 'Kitchen were to be upon the appeared to the winners as shown face of the returns, and after a Upon a recount returns. canvass Qualls Bailey, results were demanded both 25, 1968, announced on June the board canvassers showing Bailey, votes, Kitchen to have received the most 1,357 votes, Qualls, 1,292 votes. *2 27,1968, Qualls,
On June appellee the served this contesting Bailey his notice of appellant the legality grounds Bailey’s the on the nomination Bailey’s son, Precinct who served as an election official 'in Kyle District, ineligible 15 in appointment was as such performed official and in the course had unlawful acts votes, legality service. The as evidenced some by poll slips, grounds was also contested on the named given voters did not reside at the addresses 'and/or signatures signatures poll slips the on the varied appearing registration ap- permanent on and records pellee that the democratic moved entire vote cast peace in Precinct 15 for the office of Kyle Bailey District be declared invalid and disallowed. Qualls’ demurred to notice of and filed a notice of Qualls against setting grounds contest in his own forth behalf Also, not material filed with here. certain actions were proceedings Circuit Court of and had Cabell pertinent thereon which' are not situation on .the factual appeal. Bailey’s subsequent demurrer and a motion particulars county court for a bill of were overruled July and the court convened to hear the election contest on 22, Qualls July 1968. Evidence in behalf of taken was on 22, 23, 30, 29 and at which case and time he rested his Bailey moved a directed in his favor which was verdict Bailey overruled. Five witnesses behalf of were examined August 1, 1968, hearing adjourned on which time the was at August 5, 1968, until and were heard in witnesses behalf Qualls Bailey, rebuttal, August 5, and in on behalf 6 and 1968. It is noted in the record that Commissioner Dunfee, county court, present was not at member August 5, on 6 and 8. At the conclusion sessions testimony August 8, parties appropriate made on both relief in their behalf which were overruled. motions for court, being Bailey only moved the two also commissioners contest; mo- decision of present, for an immediate 196.8, decision, September 3, 2-1a was refused. tion On Commissioner all participating, Dunfee court ordered votes in appellant appellee dis- Precinct for both allowed on precincts basis of other returns Qualls declared A motion nominee. to reconsider September on 10, 1968, by decision, overruled 1-1 Com- being missioner Black absent.
Bailey applied for a writ of error to the Circuit Court of Cabell County, granted which writ was decision by separate court affirmed on orders entered application granted October Bailey 1968. On a writ of supersedeas 15, 1968, error and on October set matter for on October at which argued time argu- the case was Prior to submitted. ment, Qualls, by counsel, appeal moved to dismiss the improvidently grounds: assign- (1) awarded on the the sole ment of ruling error as to the circuit court’s that the asserts apparent circuit court refused a of error it is writ whereas on granted; (2) face that such writ was *3 affirming the order of county the circuit court the court’s prepared decision by appellant’s counsel without notice appellee to and, therefore, or his counsel is tantamount to judgment by consent; (3) entry the con- such orders error; stitutes (4) invited and local rules were violated respect entry the such orders. controlling In view of our the as to law the dis position proceeding, unnecessary to relate the it county evidence adduced before the court or to discuss the allegedly by county various errors committed the court. However, required an indication of the evidence to in precinct, validate entire vote in a the cast see Williamson 53 S. E. and Musick, Scaggs, Hatfield unnecessary 101 W. 133 E. We also deem Va. S. it questions by to discuss the raised the motion to dismiss. amended, provides part as follows: county “The court hear and shall decide election pursuant contests initiated preceding to the of the ... At trial of contest, section. the such legal proper the court hear all such shall evi- brought may by party, be before it either dence may, necessary, require produc- if deemed books, de- poll certificates and ballots tion posited The clerk, examine the with its same. hearing may by court from time be continued right require time, if shown that it, but the court trial of contest election. At shall declare the true result of such final such election, and of the entered on the records cause the same shall . . . Either or contestee court. contestant right appeal circuit court have the county county or decision of the from the final order the decision proceeding, . . . From court such court, appeal to the su- circuit shall lie cases, appeals, in other ...” preme court of part: Code, 3-5-20, amended, provides may . . . contest “Any candidate for nomination county election before procedures, county any primary election in which may practices or be in issue. results governing as that case shall be the same such by of a magisterial districts. offices or offices such decision circuit court of the be reviewed by supreme appeals . . . court of State. review, “Any petition for of a finally determined nomination not candidate for a days preceding date of the next within ten next for dele- primary, or of a candidate election after the preced- gate any convention within holding convention, ing the date fixed for person face dismissed, stand and the shown nomi- election to be the returns any to have his nated for office shall be entitled printed upon the ballot to be voted name *4 election, person face at the and the shown delegate of any as a the returns to have been elected in convention entitled to such con- shall be sit delegate.” vention as a VIII, 24 of Constitution of West Vir- Article Section ginia, County Courts, provides of entitled Powers insofar “They shall, pertinent [county in all cases that courts] judge election, qualification and returns members, of all and district of their own
389 otherwise, officers, subject regulations, by appeal or to such justice may prescribed by be law.” The office Gore, peace in Baer v. is district office and this Court held statutory 50, 530, pertinent 79 W. 90 Va. S. E. that under the provisions, appeal now ruling circuit court would he to a between two for the office contestants for the nomination justice peace appeal cir- that an ruling Chapter cuit court’s would he to this Court. Virginia governing the Code of West contains the law paragraph tions in this state. The first of Article Section chapter provides, part, of that that “Unless restricted context, chapter apply shah every general, primary, special candi- which dates are nominated or elected. . . .” Article 7 is entitled Contested Elections. Section 7 of that article has been part although it the law of since formation this state its has, course, That been amended on several occasions. section, out, providing as heretofore set after that the detailing court shall hear and decide election contests and procedure therefor, “The these two sentences: contains time, continued the court from time to be right it, if it not require be shown that but beyond final three At the months election. trial of such contest shall declare the true result the count election, of such entered on the cause the same Apparently records of the court.” the first case language in an was discussed E. 2. was 51 S. Stafford Judge Brannon, with reference to the force of the three “Though limitation, it in this said: is not involved case, provision forbidding a continuance not language only directory? True, pro- hibitory saying continued be- yond months; gravely I but doubt whether non-com- pliiance would work a of the case. discontinuance long holding.” I should hesitate before so That statement at least one later decision this Court dismissed single being syllabus point dictum. obiter This is the Nash, W. Nelson Va. 29 S. E. 2d *5 390 Code, 3-9-3, pant “That 3-7-7]
election contest: [now hearing of an election prohibits a continuance election, limits day of months from the agreement jurisdiction court; be- county contin- that such tween the contestant and the eontestee authority may extends nor restores uance be had neither lapse by power county they once are lost of time.” Primary 5 entitled Chapter
Article 3 of the Code is interesting Nominating Elections and Procedures. It is legislature not fit to did see observe of this state adopt legislation relating until elections Code, 3-7-7, as provisions As heretofore stated amended, had law from its formation. been the of this state to a 20 of Article are vital of Section controlling question Court determination of before can- proceeding in this a contest between two case. This office party for nomination to a district didates of same County. Contests 20 is entitled Election Cabell Section begins “Any thus: candidate Court Review. by the nomination for or an office to be filled election to any or political thereof voters of the State or subdivision any any membership political party exe- candidate for on committee, may election before cutive any primary county in which court of procedures, may or practices tion results issue. governing procedure in the same as that such case by election the contest magisterial (Italics supplied.) districts.” offices offices language given full The italicized heretofore been has Wayne County Staley effect this Court. In involving W. Va. 73 S. E. Code, 3-9-2, held [now providing that in an election the contestant 3-7-6] give notice after the
contest must the eontestee mandatory the election was declared and that result of giving in the of such notice the absence such contest. In to hear was without quoted approval following language the Nash case: diligent public policy “The of this State calls for timely officers, boards, action tribunals and ascertaining declaring courts in final results adjourn an election. Election boards *6 counted, until all the votes and are a certificate signed. Code, result made and 3-5-30. On fifth day canvassers is (Sundays excepted) after election board required convene canvass the Adjournments may returns. of such board be made longer ‘but no absolutely necessary’. than is If a desired, recount is a demand therefor must be made officially before the result is Code, 3-5-33; declared. Duty Thompson, 415, 417, v. 79 W. 11; Va. 91 E.S. Beacom Canvassers, v. Board 463, 122 W. Va. 10 E. A required give S. 2d 793. contestant is notice of contest to the contestee within ten after the binding last and Code, declaration 3-9-2; of result. County Court, v. 58 W. Va. 51 E. 2. S. Stafford presented Notice of county contest must be court at its delivery first term after of such contestee, notice to placed and shall be on the docket hearing. of that court for Code, 3-9-3; Staf- County Court, supra. finally, And hear-
ford ing of an election ‘may be continued from time the to time . .. but not three months from Code, of election.’ 3-9-3. “Evaluation foregoing of the statutes enacted in public policy furtherance of the above mentioned brings legislative intent into bold relief: election result should be determined and declared dispatch. and determination of an election contest proceeding by is the last which object legislature attained, is and the statutory provision here considered is an overall limitation of process entire making returns of election, canvassing thereof, recounting the ballots cast, contesting the result.” Also, in Fry, Irons v. 129 W. Va. E.S. a primary election contest in which the issue before this Court concerned the sufficiency of the of contest notice and the interrelationship between what Code, 3-5-20, is now Code, 3-7-7,the “So, Court stated: we-think that under Dry den Code, case and 3-5-20], pro- 3-4-25 [now vides that the in a pur- contest for a nomination ported to have been at a primary made election ‘shall be governing same as that general the contest of a Dryden county offices’, case is de-
point notice is with the case at bar and contestant’s Dryden Dryden . fective. . .” The case referred Swinburn, general 234, a election contest. provides
Section 20 the decision further by the upon may reviewed section circuit court of the this Court. appeals no time limitation time has when such ap- governing However, statutes effected. Code, 58-3-4, peals court, circuit court to a Code, 58-5-4, would from circuit court to E. See, Boggs’ 63 S. apply. Estate, In Re: W. Va. 2d 497. apparent language Code, 3-5-20, as they amended, that must be legis- together purpose
read order to effectuate the *7 Code, words, lature as In other to contested elections. to unless the complete 3-5-20 is intended be not not Code, it. As heretofore of 3-7-7 are read with provides Code, specifically the stated 3-5-20 n underthat governing the shall be same as that section the Code, follow- general of 3-7-7. The contests elections under its ing provision is, apparent for Code, of 3-5-20 reasons arising of the language, applicable only out to a contest “Any contest, a or primary results of election: finally de- review, for a nomination not of a candidate for preceding days the date termined within ten next primary, or of a for dele- election after the candidate next gate any days preceding the within ten next to convention dismissed, holding convention, fixed the stand date for by person face the the shown returns and the any to nominated for office shall be primary election be printed upon the ballot to his name have entitled election, person upon shown to at the voted delegate any elected as a to the returns to been face of a be entitled to sit such convention as convention shall urgency disposing a for contest after delegate.” The compelling reason not general election is a until his successor a will hold over receives incumbent qualifies and otherwise for the office. election certificate following Not so a primary election. There must be a determination of every the winner in such election within general such time as placed upon he election ballot. was quoted for that reason that the last provisions Code, 3-5-20, amended, adopted. Those were provisions are not an exclusion of the three months Code, contained in 3-7-7, but were a further upon limitation the county court, court, and this circuit regard Court with when, regardless to cir- the time obtaining, cumstances finality then there must be a proceedings. provide That section does rule not one following time element for the determination of a contest primary applicable election whereas a different rule Code, under Code, 3-7-7. rule under 3-7-7 applicable general primary elections as well as elec- tions. In addition to that limitation is the further there Code, 3-5-20, applicable limitation primary elections stated, obvious reasons they apply as heretofore only candidates for nomination tion for the they apply usual and district offices but political also to the candidates to a To convention. be suc- cinct, under if not a there is determination court, election either upon appeal, appeal circuit court upon court, preceding the circuit within ten the date holding litigation fixed for election, end, dismissed, is at an stands and the candidate the contest who the face of returns received the most votes will clerk be certified to the party circuit as the nominee for that his office. *8 County the In recent case of ex rel. Palumbo State Court, 61, 150 E. W. Va. S. this Court had before primarily question interpreting it for determination the of following Code, 3-7-7, the sentence of as “The amended: presented notice of shall be to the its contest court at the is to person first term after same delivered the whose contested, is the for election same be docketed 'County County in court.” Court of trial such The Kanawh'a hearing pursuant had refused of at notice contest during given upon the term court which the notice was phrase, after”, the belief that the “first term the meant following This term and in not term then session. decision, a 4-1 held otherwise directed court to hear contests at of court. that term question decision is now the Court law this now has no criticism it as to then relates issue However, it. majority before fol- contains lowing language: “It noted the re- will be that at the time quest for the contest was made case the hearings to refused hold and set to be them beginning heard at next term October which would have been more than three months after primary election, they no they time that contend jurisdiction period pro- to hear them. The three months Code, 3-7-7, amended, applies for in hear- only vided as to ing procedure, de- applicable to the time element termining governed by of contests in elections is ‘Any Code, 3-5-20, amended, which follows: as reads as review, such a candidate finally next nomination determined within preceding the date after ” This dismissed, (Emphasis supplied.) . . shall . . . stand syllabus point Palumbo word- is the first in the case: “The ing regard statute Code, 3-7-7, amended, beyond
contained prolonged, pertains refers or election contest not to be hearings in election only from time time to continuances hearings com- require in order to contest cases possible date of the election.” pleted as after the soon holding as, only that case as, and Insofar insofar dis- case it is with the decision the instant conflict approved. stated, applicable under
For the reasons heretofore Code, 3-7-7, amended, we find that County County was without Court Cabell 3, 1968, September inasmuch more to enter its order elapsed had date since the than three judgment of of which this arose. election out County is reversed and Court Cabell the Circuit the order of the is directed reverse *9 County of Cabell disallowing the votes for the democratic justice peace cast in Precinct 15 Kyle Qualls declaring District one of the nominees of party justice democratic district for office that peace, Bailey, with the direction further that Robert Sr., be one declared for the the democratic nominees peace Kyle office of of the District his name be certified to the Clerk the Circuit Court Cabell may place upon so that that official name his general election ballot to be voted at the next election on November
Reversed and remanded with directions.
Berry, President, dissenting:
I
majority opinion
dissent from the
wherein
now holds
it
provisions
3-7-7,
of Code
limits the
jurisdiction
pri-
court
to hear and determine
mary election
contests to a three months
from the
date of
holding
the election
disapproves
the unanimous
just
years ago
Court on
question
this same
two
County Court,
case of
ex rel.
Loop
State
Palumbo and
W. Va.
When argued the Palumbo Sep- was tember, 1966, attorney respondents contended jurisdiction this Court did not have decide the hear or case for elapsed the reason that more than three months had since the necessary dispose election. question question before the of when the case should docketed for trial in the court could be taken up, jurisdiction because this Court would to deter- question mine that if period prohibited the county hearing the case. This is made abundantly clear the Palumbo case wherein is stated the unanimous that: appears “It also to be the contention respondents inasmuch as three months have elapsed election, which was May court has no
to hear the contest. This is based on the amended, dealing with contin- in Code in a county uances general *10 part as which reads election contest hearing by may be continued ‘The follows: justice time, if court and time to from it be shown right require it, but day from the election.’ request “It at the time will be noted for contest was made this case hearings to hold of the contest refused term set them be heard at ginning next be- 1966, which would have been October election, 'primary more than three months after they they contend no time that provided hear The months for to in Code procedure, termining them. three hearing 3-7-7, amended, applies only to as applicable and the time element to de- gov- primary elections is contests by 3-5-20, 'amended, erned Code which reads as ‘Any contest, review, or follows: such for finally nomination not deter- candidate preceding days next mined within the next election date of ** * primary shall stand after” * * dismissed, supplied.] [Emphasis Chapter Virginia gen- West 3 Code of which was erally amended deals with this State. elections Chapter provisions apply All of to all elections general, primary, special they whether elections unless be by certain are restricted various sections beginning clearly the context. This is set out at the 3-1-2, amended, that: chapter it is in Code wherein stated context, provisions of this “Unless restricted general, special chapter apply every primary, ** nominated or elected election in which candidates are 3-7-7, as provisions of Code supplied.] The [Emphasis * “* * con- amended, provide that: time, shown time to if tinued the court from require it, beyond right but not ** provision been of election This has course, only applied and, in the Code since county court in elections tion contest before primary at which elections had when this state until 1915 con- amended, was enacted 3-5-20,as time Code tests for primary provided “Any elections and it that: * * * of a finally candidate for a nomination not determined preceding within ten the date of the * * * next election after the shall stand dismissed !> * * *
There
was no
at common law for election con-
tests and such
governed
specific
contests must be
as to the
provisions as
contained
either the constitution or statute.
State ex
Daugherty
rel.
County Court,
Lincoln
321;
31 E.S.
Myers Garner,
State ex rel.
Va.
148 W.
92, 133 S. E. 2d
Certainly
3-5-20,
the context of Code
amended, clearly
restricts
the context of Code
as far as
election contests are concerned.
wording
of these sections
toas
limit
time
for hear-
ings
entirely
different. The
specifically applying
section
contests of
elections fixes a different
time limit
*11
primary
for
election
to be determined in
contests
the same
manner
procedure
that
for election
for
offices
contests
state
are different
county
for
3-7-1,
contests
offices. Code
as
amended.
3-7-3,
Code
amended, provides
as
for election
special
contests
secretary
state,
before
court for
auditor,
treasurer,
attorney general,
agriculture,
commissioner
judges
Supreme
Appeals,
judges
Court of
and
of a
circuit court. All of
Chapter
in
apply
sections
to both
primary
general
elections unless there is some difference
procedure
between the
primary
general
in a
election.
3-1-2,
Code
as amended.
It will be noted that
the election
governed
contests
certain state
offices are not
provisions
in Codes 3-7-6
provisions
as amended. The
apply
of these
do
sections
to such contested elections
and the continuance
applicable
three months is not
in
cases,
the contest of these
as well as in
primary
tion contest
Daugh-
before
court. See State ex rel.
erty
County Court,
v. Lincoln
It true that regard is confusion considerable with to the provisions relating to elections, the time limit for contested primary general, both has existed virtue of the period decisions of Court years this over a and in an attempt following to reconcile the- cases the statement was placed in the Palumbo case: “'Due to the fact confusion cases, any in with election contest has arisen connection prior decided any of may be contained statement dealing consistent with such matters not cases case connection therewith with the decision Palumbo that: disapproved.” also stated in the It was 3-5-20, amended, provides as the “Code, that contests as offices or offices primary elections state result political under conducted subdivisions the state procedure in a provided for contests same course, involving county provision, of offices. This appropriate.” only applicable to the where Palumbo case: “It would be further was stated in the juris- have say senseless to did not diction to months after hear a election case three contested dealing the date of the statute election when gives specifically with elections appellate finally determine such courts to * * up contested elections until within preceding the after date the next election * * regard wording Therefore, with *’. the statute only period clearly pertains the three months refers hearings election contest cases continuances completed require order contest cases such election possible election.” soon as after the date of the deal with con- in Code no tinuances of from time to time and doubt originally for a intended to refer to continuances time, two, contested a week or order disposed dispatch. elections *12 agree Judge I in the with the statement of Brannon Mingo County Court, 88, 2, 58 W. Va. 51 S. E. Stafford apparently this which was the first case matter discussed, although questioned it is he whether dicta in question a continuance be- forbid yond present three months. decision prohibit completion former of a contest hear- some cases if ing elapsed if had the three months even taking of parties in the middle of the evidence were never continued. case had been majority opinion in the case at b'ar would effect
prohibit election contests in counties such as Kanawha with present appears ballot in use because it from the Palumbo case that election completed contests could not be within primary election. The tion in that May 10, 1966, case was held on and the canvass and recount completed were not July 20, 1966, until about two months and ten after the and notices of provided statute, given had were not returned to August 1, court until Rules were issued August 1966, this Court on prayed for in which was over three months after the election and the case was not submitted September decision until 7, 1966. It is clear therefore in the Palumbo case ruling that under the at the case bar this Court would not have had to hear that although jurisdiction case and specifically of the Court was questioned by attorney respondents for. the could even question have raised the on its own motion and need never have point presented decided the other in the case and the would place taken never in the subjecting parties Kanawha unnecessary expense. Webber, Grottendick v. 134 W. Va. 854; 61 E. Montgomery S. Montgomery, 147 W. Va. 480; 128 S. Rose, E. 2d Lester v. S. E. 2d 80.
For the dissenting reasons stated in opinion, I do not syllabus point think that one of the Palumbo casé and the part opinion pertaining thereto should have been overruled.