Bevins v. Blackburn

97 S.E.2d 46, 142 W. Va. 564, 1957 W. Va. LEXIS 35
CourtWest Virginia Supreme Court
DecidedMarch 12, 1957
DocketNo. 10865
StatusPublished
Cited by1 cases

This text of 97 S.E.2d 46 (Bevins v. Blackburn) is published on Counsel Stack Legal Research, covering West Virginia Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bevins v. Blackburn, 97 S.E.2d 46, 142 W. Va. 564, 1957 W. Va. LEXIS 35 (W. Va. 1957).

Opinions

Riley, President:

This proceeding was instituted under Code, 6-6-7, in the Circuit Court of Mingo County, by James Richard Bevins, Burgess William Lowe, Flavia W. Shelton, Lassie Hatfield, Lillie Ruth Crum, William P. Crum, Virginia E. Saltón,. Wharton V. Linkous, Earl W. White, Bertie C. Roach, Taylor V. Marcum, Lillie Marcum, Peggy Ann Herald, Maggie White, and Maude P. Dickinson, all residents and qualified voters in the Third Ward of the City of Williamson, four of whom are registered Republicans and eleven of whom are registered Demo[567]*567crats, in which the petitioners seek to remove respondent, William French Blackburn, Jr., from the office of Councilman of and for said Third Ward in the City of Williamson, on the ground that respondent is not a resident of such ward, not a qualified voter therein, and, therefore, is not qualified to serve as Councilman for the Third Ward in the City of Williamson. To a final order of the circuit court, denying the prayer of the petition and dismissing the proceeding, this writ of error is prosecuted.

At the municipal primary election held in the City of Williamson on April 12, 1955, the respondent was nominated on the Democratic ticket for the office of Councilman for the Third Ward in a five-way race, at which primary election respondent received about twenty-eight per cent of the Democratic votes in the Third Ward, with a plurality of four votes over the second highest candidate in the primary. In the general election, held in the City of Williamson on June 14, 1955, the respondent, by a certificate of result of the election, issued by the City Council of Williamson, acting as a canvassing board, was declared elected as Councilman for the Third Ward for a term of three years, beginning July 1, 1955, on which date the respondent was sworn in as such councilman, and has since performed the duties of that office.

The respondent Blackburn first became domiciled in and a resident of the City of Williamson, in the year 1951, where, in the month of December, 1951, he registered to vote, which was his first registration to vote anywhere in the State of West Virginia.

It is alleged in the petition that respondent’s first and only residence in the City of Williamson was located on Mulberry Street within the confines of the Second Ward of the City of Williamson; that the only business office which respondent has ever maintained in Williamson has always been in the Second Ward thereof; and that the first registration of respondent for voting was in Precinct No. 3, which is in the Second Ward of the City [568]*568of Williamson, in which is located the only home respondent has had in that city.

The petition further alleges that respondent voted in Precinct No. 3 in the Second Ward of the City of Williamson at the primary and general elections held in the months of April and June, 1952; and also voted at the same place in the primary and general State-County elections held in May and November, 1952.

In the petition it is further alleged that on April 28, 1954, the respondent, without changing his residence or address, and still living within the boundaries of the Second Ward of the City of Williamson and Precinct No. 3, transferred, or had transferred, his registration from Precinct No. 3 in the Second Ward to Precinct No. 6 in the Third Ward; and that since such transfer the respondent has been voting in said Precinct No. 6 in the Third Ward, the first and only municipal election wherein he cast his vote in said Third Ward being the municipal primary election, wherein he was a candidate as aforesaid for councilman in April, 1955.

The pertinent provisions of the special charter under which the City of Williamson is operated, as enacted by Chapter 136, Acts of the Legislature, Regular Session, 1933, and the sections of such charter which are pertinent to a decision in this case are as follows:

“Sec. 5. The municipal authorities of the city shall consist of a mayor and four councilmen, who shall constitute and be known as ‘the council of the City of Williamson.’ One councilman shall be elected by the voters of each of the respective wards and the mayor shall be elected at large.
* * *
“Sec. 8. No person shall be eligible to hold the office of mayor, councilman, or any subordinate office, unless at the time of his election or apportionment he is legally entitled to vote in the city election for mayor and members of the council.
* * *
[569]*569“Sec. 11. Every citizen of this state, who has been a bona fide resident of the city for sixty days next preceding any city election, and who is otherwise legally entitled to vote under the constitution and laws of this state, and who has been duly registered as herein provided for, shall be entitled to vote at such city election at the precinct in which they respectively reside; but no person shall be deemed a resident of such city by reason of being stationed therein for any temporary purpose. * * *

It is alleged in the petition, and the record before this Court discloses, that the boundary between the Second and Third Wards has been set by ordinance of the Council of the City of Williamson, as a result of which ordinance the boundary line runs near to or through the residence of the respondent, which the petition alleges is within the Second Ward of the City of Williamson and beyond the confines of the Third Ward thereof, which last-named ward the respondent, so the petition alleges, presumes to represent.

At a meeting of the Council of the City of Williamson, held on March 12, 1943, as shown by petitioners’ “Exhibit G”, which is a certified copy of an excerpt from the minutes of the meeting held on March 12, 1943, of record in Council Journal Book No. 6 of the City of Williamson, it appears that the council provided by ordinance for a change in the boundary lines of Wards Nos. 2, 3, and 4 of the City of Williamson, and ordered that the boundary lines thereof be altered and changed as follows:

“SECOND WARD.
H» H» H*
“Beginning at the intersection of Harvey Street & Tug River; then up Harvey Street with the center thereof to the intersection of Joseph Street; thence along Joseph Street with the center thereof to the intersection of Fairview Avenue; thence along Fairview Avenue with the center thereof crossing High Street and running on the Eastern side of the High Pressure Reservoir and the East side of the Water Plant to the [570]*570top of the ridge at the corporation line; thence with the corporation line around said ridge to the line of the First Ward, and with the Western line of the First Ward, it being the line between the lands of Williamson Mining Mfg. Co., and Lawson heirs, to Tug River; thence down Tug River to the place of beginning.
“THIRD WARD.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

Anthony J. Veltri v. Diane Parker and John Michael Withers
750 S.E.2d 116 (West Virginia Supreme Court, 2013)

Cite This Page — Counsel Stack

Bluebook (online)
97 S.E.2d 46, 142 W. Va. 564, 1957 W. Va. LEXIS 35, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bevins-v-blackburn-wva-1957.