153 W. Va. 21 | W. Va. | 1969
Petitioner Lou Smoleski, the Democratic nominee for the office of sheriff of Hancock County, filed his petition for a writ of mandamus in this Court on March 13, 1969. The petition alleges that at the general election held in Hancock County on November 5, 1968, he received the highest number of votes for the office of sheriff and upon completion of the canvass was issued a certificate of election on December 19, 1968. Thereafter on the petition of the respondent Ralph J. Patrick, Jr., the Republican nominee for sheriff, this Court issued a writ of mandamus requiring the board of canvassers to reconvene and recount the ballots cast in precinct 32 in accordance with the directions set forth in a written opinion handed down February 4, 1969, (State ex rel. Ralph J. Patrick, Jr. v.
Chapter 100, Acts of the Legislature, 1863, provided, with regard to county and district offices, for a canvass of the returns and a declaration of results by the canvassers, except where notice was given of an intention to contest. The act then provided: “. . . In such cases no declaration of the result shall be made; but the board shall appoint a day, not less than five nor more than twenty days thereafter, when they will hear and consider such written depositions . . . and such other evidence, as may be produced. They may continue the hearing from time to time if it be shown that justice and right require it, but not beyond the twentieth day after the day first appointed for the hearing . . . .” Chapter 118, Acts of the Legislature, 1872-3 changed this procedure somewhat, in
Two other acts of the legislature; Chapter 89, Acts of 1891, Regular Session, Section 89, Acts of the Legislature, Regular Session, 1893, Section 89, although neither refers to an election contest, are we believe important in resolving the specific issue presented for decision in this case. By the amendment of 1891 circuit courts were given jurisdiction of the writ of mandamus to require “Any officer or person, upon whom any duty is devolved by this chapter ... to perform the same . . .” By the 1893 amendment this Court was specifically empowered by mandamus to require election officials to perform the duties required of them under the chapter on Elections. This is the pertinent language: “A mandamus shall lie from the supreme court of appeals, or any one of the judges thereof in vacation, returnable before said court, to compel any officer herein to do and perform legally herein any duty required of him.” Prior to the Acts of 1891 and 1893 with regard to the applicability of mandamus in election cases it was necessary for a losing candidate to go through a contest before the county court and if still the loser seek a review by way of certiorari to the circuit court. Thereafter if still unsuccessful he could petition this Court for a writ of error. Dunlevy v. County
How are statutes to be construed? How is the meaning of words in a statute to be ascertained? How far is it permissible to inquire into the con*27 ditions existing at the time of the passage of the act? From what sources, and by what rules is the legislative intent to be ascertained? Are the matters of history and legislation, above detailed, entitled to any weight or consideration in the solution of this question? The answers come from the highest court in the land.
“Where the language of a statute is in any manner ambiguous, or the meaning doubtful, resort may be had to the surrounding circumstances, the history of the times, and the defect or mischief which the statute was intended to remedy.” . . .
The dissenting opinion in the Daniel case is interesting.
It is evident that it was the legislative intent to put an end to the interminable delays in deciding election cases and in addition to the two amendments relating to mandamus, Chapter 6, Section 3, of the Code of 1899, contained the language now before us that: “The hearing may be continued by the court from time to time, if it be shown that justice and right require it, but not beyond three months from the day of election.” The first case in which this Court was called upon to determine the meaning of that language was Stafford v. County Court, 58 W. Va. 88, 51 S. E. 2. That case was decided by this Court on May 27, 1905. However, that was the second time that the case had made its way to this Court, the first decision having been rendered on December 20, 1904. In Stafford v. Board of Canvassers, 56 W. Va. 670, 49 S. E. 364, Stafford was the Democratic candidate for prosecuting attorney of Mingo County in the election held on November 8, 1904, and his Republican opponent was John A. Sheppard. In that case Stafford sought a writ of mandamus invoking the original jurisdiction of this Court relying upon the amended statute heretofore quoted of 1893 but after full hearing the writ was denied with directions in the opinion for the court to proceed to count certain ballots. As to what transpired after the first decision I quote from President Judge Brannon’s opinion in 58 W. Va., at page 89, 51 S. E. 2: “Pursuant
2. The provision of section 1, chapter 6, Code of 1899, that notice of contest for a county office shall be given within ten days after the result of an election has been declared, means the last legal binding declaration of result, where there have been two declarations, one irregular.
3. The provision of section 2, chapter 6, Code of 1899, that a pending contest for a county office shall not be continued more than three months after the election, applies only to a contest actually pending, and does not apply to or limit the time for giving or filing notice of contest.
Some years later, in 1944, this Court held in the single syllabus point of Nelson v. Nash, 126 W. Va. 568, 29 S. E. 2d 253: “That part of Code, 3-9-3, which prohibits a continuance of the hearing of an election contest beyond three months from the day of election, limits the jurisdiction of the county court; and an agreement between the contestant and contestee that such continuance may be had neither extends nor restores the authority and power of the county court once they are lost by lapse of time.” At the election of November 3, 1942, Nelson and Nash were opposing candidates for the office of commissioner of the county court of Cabell County. The following is from the statement of facts in the unanimous opinion:
. ; . The canvass of the election disclosed that Nash received a majority of the votes cast. Nelson in due time demanded and was granted a*30 recount, the result of which also disclosed that Nash had received a majority of the ballots cast.
On December 24, 1942, Nelson served a notice of contest of the election on Nash, . . .
By agreement of counsel “the hearing of the contest” was continued to January 11, 1943, and thereafter to February 15, 1943. It will be noted that the last mentioned date was more than three months subsequent to the general election of 1942; to wit, November 3. The date when the recount ended and Nash received his certificate of election from the county court is not mentioned in the opinion. It was obviously well within three months was the view of this Court at that time that the three-months period in Code, 3-7-7 began to run on November 3, 1942, and not on or after December 14, 1942, when Nash must have received his certificate of election to permit Nelson, on December 24, to serve a notice of contest upon Nash inasmuch as ten days is the mandatory limit there-prior to February 15, 1943. Such would indicate that it for. The writer of the opinion had this to say with reference to the language heretofore discussed in the second Stafford case: “The expression of the learned Judge who wrote the opinion in Stafford v. County Court, supra, with reference to the statute herein discussed is obiter, and although we regard the utterance with great respect, it being unnecessary for a decision of the Stafford case, its value as a precedent is not apparent.” The opinion then states, excluding the citation of authorities: “At the inception of the proceeding, the County Court of Cabell County undoubtedly had jurisdiction, but it failed to exercise it. Nothing was done in this contest proceeding, except to serve a notice, docket it for hearing, and enter two agreed orders of continuance. In the meantime the three months had elapsed. Jurisdiction once existing may lapse by failure to exercise it within the time limited by statute. . . The question which would arise had the contest been in process of hearing when the three months elapsed is not here presented, and we therefore express no opinion thereon.”
In Qualls v. Bailey, 152 W. Va. 385, 164 S. E.2d 421, decided by this Court on October 25, 1968, syllabus point one, and portions of the opinion of the Palumbo case were “disapproved.”. This is the 'first syllabus point in that case: “The provisions of Code, 3-7-7, as amended, limiting the jurisdiction of a county court to hear and determine election contests to a three months period from the date of the election, applies to both primary and general elections and is mandatory; and, upon the expiration of such three months period, a county court is without jurisdiction to proceed to determine an election contest theretofore pending before it.” Insofar as the Qualls case held that the three-months period in Code, 3-7-7, began to run on the day on which voters went to the polls and not when the last valid certificate of election was delivered to the winning candidate it is expressly overruled and such portions of the syllabus and opinion in the Palumbo case as are consistent with the decision of the Court in this case are approved and reinstated. Also, the Nash case is overruled insofar as the decision therein is in conflict with the decision of the Court in this case.
It is with extreme reluctance that the writer of this opinion agrees with the majority of this Court that the language “day of election” in 3-7-7 does not mean in this case November 5, 1968, that being the day that a general election was held in this State and the people of Hancock and the other fifty-four counties of this State went to the polls and cast their ballots. But, as so aptly put by Judge Dent, in his dissent in the Daniel case, “It is better than that confusion should continue to preváil in our elections, that the questions here raised should be settled
Therefore it is the opinion of this Court that the writ of mandamus shall issue directing the respondent members of the County Court of Hancock County to promptly assemble as an election contest court as provided ¡by law and with diligence and expedition hear the evidence of the contestant and contestee and render a decision within the time provided ¡by law.
Writ awarded.