State ex rel. Bess v. Black

139 S.E.2d 166, 149 W. Va. 124, 1964 W. Va. LEXIS 41

• Court: West Virginia Supreme Court
• Decided: October 23, 1964
• Docket: No. 12383
• Status: Published

Opinions

Browning, Judge:

Petitioners, averring themselves to be eleven qualified voters and residents of Cabell County, West Virginia, instituted this original proceeding in this Court in behalf of themselves and 8,752 other qualified voters and residents of Cabell County seeking a writ of mandamus to compel the respondents, the individual members of the County Court of Cabell County and the County Court of Cabell County, to enter an order calling a local option election in that county pursuant to the provisions of Code, 61-10-28, as amended.

Code, 61-10-28, as amended, provides:

“The county court of any county is hereby authorized to call a local option election for the purpose of determining the will of the voters as to whether the provisions of section twenty-five of this article shall continue in effect in said county.

“A petition for such local option election shall be in the form hereinafter specified and shall be signed by qualified voters residing within said county equal to at least ten per cent of the persons quali-

fied to vote within said county at the last general election. Said petition may be in any number of counterparts and shall he sufficient if substantially in the following form:

“PETITION ON LOCAL OPTION ELECTION RESPECTING WORK, LABOR OR BUSINESS ON SUNDAY IN.__COUNTY, WEST VIRGINIA

“Each of the undersigned certifies that he or she is a person residing in_County, West Virginia, and is duly qualified to vote in said county under the laws of the State, and that his or her name, address and the date of signing this petition are correctly set forth below.

“The undersigned petition said county court to call and hold a local option election upon the following question: Shall the provisions of section 25, article 10, chapter 61 of the Code of West Virginia, one thousand nine hundred thirty-one, as amended, continue in effect in_ County, West Virginia?

“Name Address Date

“ (Each person signing must specify either his post-office address or his street number.)

“Upon the filing of a petition for a local option election in accordance with the provisions of this section, the county court shall enter an order calling a local option election and providing that the same shall be held at the same time and as a part of the next primary or general election to be held in said county. Said county court shall give notice of such local option election by publication in two newspapers of opposite politics and of general circulation within said county. Said notice shall be given at least once each week for two successive weeks prior to the date of said election. . . .”

The petition, in substance, alleges the filing of a petition ■under this section, before October 9, 1964, and after October 1, 1964, signed by 8,763 qualified voters residing in Cabell County and that 5,954 signatures of qualified voters residing in Cabell county were sufficient to comply with the 10% requirement of the statute; the provisions of the statute as to the calling of a local option election are mandatory but the respondents have arbitrarily and capriciously refused to abide thereby; and, the petition is valid in all respects and satisfies all requirements of the statute. The petition then prays for a writ of mandamus directed to respondents commanding them to enter an order calling a local option election to be held at the same time as the next general election to be held November 3, 1964, and to give the required notice thereof.

Filed as a part of the petition are the affidavit of Chad Ketcham, an attorney, who states that a petition in the statutory form, containing the names of 8,763 residents and voters of Cabell County, was filed with the County Court of Cabell County after October 1, 1964, and before October 9, 1964, and the affidavits of three of the petitioners, each of whom states that he is familiar with the petition and that the same was prepared and signed after June 1, 1964, and filed with the County Court at the time previously mentioned.

This Court awarded a rule to show cause why the writ should not issue as prayed for on October 13, 1964, returnable October 20, 1964, and pursuant to the rule, respondents appeared and answered, denying: that a single petition containing 8,763 names was filed with the respondents; that the petition is valid in all respects and satisfies the requirements of the statute; that the respondents’ action in refusing to call said election was arbitrary and capricious; and, that petitioners have shown a clear legal right to the relief sought. The answer then avers that: five separate petitions were filed, containing 6300, 204, 433, 324, and 1439 signatures, respectively, the first being filed on October 1,1964, and the last being filed on October 8, 1964, the fifing order of the last reciting “. . . Said petitions are hereby filed as a part of the petitions heretofore filed.”; the signature of petitioner, Pearl Bess, does not appear on any of the petitions and the signature of petitioner H. L. Markham does not appear on any of the petitions, nor does it appear on the voters’ registration records of Cabell County; the signatures of several of the other petitioners appear multiple times, ranging from 2 to 5, on the petitions, the eleven petitioners thus accounting for eighteen of the purported 8,763 signatures; and, three of the signatures bear dates prior to June 1, 1964, two dated May 28, 1964, and one dated May 30, 1964. The above discrepancies with regard to the signatures are set forth in the affidavit of Elizabeth Daniel, a deputy clerk of the County Court of Cabell County. The answer also avers that, upon the filing of the first four petitions, the respondents directed the County Clerk to ascertain if sufficient signatures of persons qualified to vote appeared on the petitions, individ-idually or collectively, to meet the requirements of the statute with the result that there were insufficient signatures to cause such election to be held. In support of this averment, two certificates of the clerk are filed as Exhibits 8 and 9 with the answer, the first, dated October 7,1964, certifies that upon a preliminary survey, the petitions were found to contain 6,333 signatures, of which 2,293 were found to be invalid, the remaining 4,040, being less than 5,954, not being checked, and the second certificate, dated October 8, 1964, certifying that upon a further check the petitions were found to contain 7,324 names, of which 1,423 were determined to be invalid, the remaining 5,901 names not being checked.

The answer further asserts: that the question involved herein was submitted to the voters of Cabell County at the primary election held on May 12, 1964, resulting in a “Yes” vote; that such was a final determination of the question in Cabell County; that absentee ballots and the voting machines have already been prepared for the election to be held on November 3, 1964; and, that 667 absentee ballots, on which the question does not appear, have been returned, with the consequent disfranchisement of these 667 voters.

Petitioners demurred to the answer, in substance asserting that the same is insufficient in law and constitutes no defense to the proceeding and replied, in part, attempting to resolve the discrepancies with regard to petitioners’ signatures, and challenging the materiality and sufficiency of the various allegations of the answer. Petitioners also moved for a peremptory writ notwithstanding the answer on the principal grounds: (1) the answer is insufficient in law; (2) petitioners have established a prima facie case which has not been rebutted by respondents; (3) respondents have had six days since service of the rule upon them during which they have adduced no evidence nor made any attempt to adduce any evidence; and (4) the burden is upon the respondents to prove the petition invalid, which they have made no effort to do.

This Court, on October 23, 1964, issued the writ of mandamus sought, directing respondents to enter an order that a local option election be held in the county of Cabell at the general election on November 3, 1964, to determine whether the voters of that county desire that Code, 61-10-25, as amended, remain in effect in that county, and this opinion is now being handed down stating the reasons for such action.

On the return day of the rule theretofore issued in this proceeding the respondents by oral motion of counsel requested a continuance of the hearing for at least three days, which motion, after due consideration, was overruled by the Court. The continuance was denied for the reason that the last of the five petitions, or counterparts, submitted by the petitioners in this proceeding had been filed with the county court on the 8th day of October, 1964, and no effort had been made by the respondents to ascertain the validity of the 1439 names appearing thereon which, if valid, taken together ■with the names unchecked on the previous counterparts, would have constituted more than 10% of the voters of that county. Furthermore, the pertinent statute provides that the county court shall give notice to the citizens of a county when such an election is to be held by advertising such twice not less than one week apart in newspapers of general circulation in such county. If this Court had granted the continuance until Friday, October 23, 1964, and the case had been submitted for decision on that day it would have been virtually impossible for the Court to have considered the matter and handed down its decision in time for two such publications to be made prior to the election and at least one week apart. It is the view of this Court that the five petitions, or counterparts, should have been treated as one petition and the respondent county court was apparently of the same view, for upon the filing of the last petition on October 8, 1964, the order recited “Said petitions are hereby filed as part of the petitions heretofore filed”. Upon this question see Leigh v. Hall (Ark., 1960), 339 S. W. 2d 104; Hammett v. Hodges (Ark., 1912), 149 S. W. 667. The Court is also of the opinion that the reason assigned for the rejection of certain signatures upon the petitions, that is, where the street number or the date of the signing was filled in by some person other than the signer, as shown by respondents’ Exhibit 14, was not valid. Widick v. Pursifull (Ky., 1945), 187 S. W. 2d 447. See also, State ex rel. Noyes v. Lane, 89 W. Va. 744, 110 S. E. 180.

The respondents by their answer raise the question of whether under the applicable statutory provision, Code, 61-10-28, as amended, which provides: “The county court of any county is hereby authorized to call a local option election for the purpose of determining the will of the voters, ...” more than one election may be held to determine the issue. It is the contention of the respondents that, inasmuch as such a local option election was held in the county of Cabell at the primary election of May 12, 1964, the respondents are not required to and are without authority to call another local option election for the same purpose. This Court is not in agreement with that contention and believes that if the legislature had so intendéd it easily could have, and would have, said so. The absence of any language to that effect, we believe, is conclusive of the question and shows that more than one local option election could be held in the county if a valid petition were timely filed prior to a general or special election. This Court, in Cohen v. Securities Co., et al., 96 W. Va. 676, 123 S. E. 793, found similar language in a restrictive covenant of a deed which was in controversy to be not so restrictive. This was the controversial language of the deed: “Party of the second part (grantee) covenants and agrees for itself and assigns that the said lot hereby conveyed shall never be used for the purpose of constructing flats or apartments thereon, and that no house shall be built on said lot nearer to Quarrier Walk than the house now owned and occupied by Oscar Nelson, and that no dwelling house shall he built upon the said lot except a one-family house. . . .” The Court, in discussing this provision, said: “Upon the theory that the indefinite article ‘a’ means ‘one’, the plaintiffs contend that the words, ‘a one-family house’ as used in the covenant create a numerical limitation, confining the number of residence structures to be build on the lot to one one-family house. On the other hand, defendant Mortgage Securities Company insists that such is not the true intention or meaning of the covenant and that the words ‘a one-family house’ are merely descriptive of the generic character or quality of the resident structures which may be erected; and that the article ‘a’ is used only for the purpose of euphony in the grammatical construction of the sentence, and not as a word of numerical limitation. In other words, no dwelling house should be constructed which may be designed for the use of more than one family. . . .” See also Code, 2-2-10 (a), and Vol. 1, Words and Phrases, pp. 4, 5.

It is true that Code, 61-10-28, as amended, provides in this language for the submission of this issue to the voters of a county: “The ballot to be used in said local option election shall have printed thereon substantially the following: ‘Shall the Sunday Closing Law continue in effect in_ _County of West Virginia? __Yes _No.’ ” and it was ably argued by counsel for the respondents that this language is conclusive or at least persuasive upon his contention that this question could not be submitted to the voters of a county more than once. Certainly it may be conceded that that language is persuasive upon the question of whether such local option election could be again held in a county which had elected to eliminate the provisions of the Sunday Closing Law and petitioners sought to have another election to reinstate the law. However, we do not have such an issue before us and shall not attempt to pass upon that supposititious situation. Suffice to say that in the case before us, the legislature, if it so intended, could have easily obviated the issue by using the specific word “one” in the appropriate places rather than the generic article “a”. Respondents denied generally the allegations of paragraph 11 of the petition, that is, that the petition filed with the county court “is valid in all respects and completely satisfies all the requirements of the statute . . and this denial, taken in context with the following allegation contained in the respondents’ answer, to which the petitioners demurred, caused this Court some concern. In other words, by their demurrer, they admit so much of it as is well pleaded:

“1. The respondents aforesaid deny the allegations contained in Paragraph I of the Petitioners’ Petition, and in further support of said denial say that they are informed and do believe that:

“(a) There has been no single petition filed which contains 8,752 names of persons qualified to vote in Cabell County, West Virginia, and further say that five separate petitions, each composed of a number of counterparts, have been filed or'lodged with said County Court. True copies of the certificates requesting filing of each of those said petitions are attached hereto and made a part hereof, marked as Respondents’ Exhibits, 1, 2, 3, 4, and 5.”

It is the contention of counsel for the respondents that by demurrer to that provision of the answer the petitioners put themselves out of court. A careful reading of this allegation of the answer does not deny that any valid signature was contained on the petitions filed with the county court and that all such signatures were invalid for one reason or another, but it states only that no single petition was “filed which contains 8,752 names of persons qualified to vote in Cabell County”. The pertinent statutory provision provides that those who would seek a local option election upon this question must file with the county court at a time not specified the signatures of at least 10% of the registered voters of that county and, as heretofore stated, proper certification as to the validity of the names upon those petitions. The county court, upon the filing of the first four of these petitions containing the names of 7,261 professed voters of Cabell County, directed its clerk to make an investigation to determine whether the names contained on those petitions were qualified voters of Cabell County, and, pursuant to that investigation, 1,423 signatures thereon were found to be invalid for one reason or another, leaving unchallenged 5,901 names. However, it was necessary to secure the names of 5,954 voters of that county to constitute 10% of the registered voters thereof and no further checking was made of the signatures on the first four petitions inasmuch as the respondents considered it unnecessary. Thereafter, and on October 8, 1964, a fifth petition was filed containing 1,439 additional signatures, which, added to the 5,901 unchecked names, constituted more than the necessary 10% required. The members of the county court made no investigation of the signatures on the fifth petition and the only reason given therefor was the oral statement made by counsel for the respondents in seeking a three-day continuance to the effect that counsel for the petitioners prior to the filing of the last petition had indicated or agreed that the matter would not be pursued further. However, when asked whether counsel who represented the petitioners in this Court or their former counsel submitted the fifth fist of names, counsel for respondents conceded that it was one of the attorneys of the firm which had represented the petitioners before the county court. This Court then had no recourse but to find that there were sufficient unchallenged names upon the petition to require this question to be submitted to the voters of Cabell County on November 3, 1964.

Certainly it could not be seriously contended by anyone that the members of the county court, when confronted in this Court by a proceeding in mandamus upon the face of the record of which there appeared to be a sufficient number of signatures to require the submission of the question to the voters of a county, could shift the responsibility for establishing before this Court the validity thereof to the petitioners rather than for that responsibility to fall upon the members of the county court. If that were true, there would probably never be held any such election if the county commissioners did not desire to hold one. If the petitioners in mandamus could be required to again prove the validity of the signatures upon their petitions, after having complied with the statute by doing it once, it would probably be impossible for the citizens of any county to secure a local option vote upon this question. See State ex rel. Plymale v. Garner, 147 W. Va. 293, 128 S. E. 2d 185.

Respondents also raise the question of the timeliness of the filing of the petition with the county court, and this Court can readily appreciate the problems with which a governmental body is faced when presented with a petition requiring the number of signatures involved herein. However, in the absence of a definite date having been fixed by the legislature for the filing thereof, we cannot say that the time of the filing of the final petition in this case was not within a reasonable time prior to the election and that the petition herein was not duly filed. See State ex rel. Zagula v. Grossi, 149 W. Va. 11, 138 S. E. 2d 356; State ex rel. Plymale v. Garner, 147 W. Va. 293, 128 S. E. 2d 185. It may be true as contended by the respondents that some voters of Cabell County who vote by absentee ballot will be deprived of the privilege of voting on this question, but as to this contention we believe that the following comments from the opinion of State ex rel. Revercomb and State ex rel. Hill v. O’Brien, Secretary of State, 141 W. Va. 662, 91 S. E. 2d 865, are analogous:

“If those who have the responsibility of distributing ballots to voters of this State, who will be members of the armed services on the 8th day of May, 1956, exercise due diligence, there will be few, if any, such voters who will be deprived of the right to vote for a candidate for the nomination for the office of United States Senator. The only other alternative for the selection of candidates for that office is the holding of party conventions, and, in such cases, few, if any, citizens of this State who are in the armed services would have an opportunity to participate in such selections. We believe it to be the policy of the lawmakers of this State to permit the voters generally to participate in the selection of candidates for all offices in primary elections whenever possible, and have given consideration to that fact in arriving at our decision as to the legislative intent when Chapter 90 was enacted in 1951. Even though such interpretation of the provisions of Chapter 90 may result in some voters in the armed services, who make early requests for absentee ballots, receiving a ballot containing all of the candidates of his political party, except those for United States Senator, all of the civilian voters of this State and most of those in the armed services will have an opportunity to select nominees for all offices to be voted on at the May 8 primary election. It is better that a few be deprived of the opportunity to vote for candidates for one office than that the electorate of the entire State be prevented from selecting nominees for this office by primary election in keeping with the public policy of this State.

If due diligence had been used by the respondent members of the county court it is certain that more voters who voted by absentee ballot in Cabell County would have had an opportunity to vote upon this question.

The applicable statutory provision is clear and unambiguous. Therefore it is not subject to construction or interpretation by this Court, but must be applied in accordance with the intent expressed therein. This rule applies whether the written instrument be a provision of a constitution, a legislative act or any other written instrument. This is the first syllabus point in the case of Cotiga Development Co. v. United Fuel Gas Co., 147 W. Va. 484, 128 S. E. 2d 626: “A valid written instrument which expresses the intent of the parties in plain and unambiguous language is not subject to judicial construction or interpretation but will be applied and enforced according to such intent.” To the same effect is Lewis v. Dils Motor Company, 148 W. Va. 515, 135 S. E. 2d 597. Further reference is made to many decisions of this Court cited in the opinions in the two above cited cases. In considering this provision, it is basic to consider that this and all other courts of this land have adhered to certain rules for ascertaining the intent of any written instrument. If the language used be clear and unambiguous, it simply applies the language used to the factual situation. If it is found to be ambiguous, the applicable rules are used to ascertain its meaning and, if the language thereof be irreconcilable, rules are equally well established for determining the dominant intent in the circumstances. However, no court under our system of jurisprudence has yet laid down a rule by which it may be determined into which of these categories the controverted language of a writing falls. That must be determined upon the facts of each particular case.

We reserve the question raised by petitioners as to the right of the county court to delegate to the clerk of that court or to any other persons the authority to summarily remove signatures from such a petition as this question is not reached in view of the decision herein.

For the foregoing reasons, we therefore hold that the petitioners have shown a clear legal right to a writ of mandamus commanding the relief demanded of the County Court of Cabell County and the individual members thereof.

Writ awarded.