State Ex Rel. Casey v. Pauley

210 S.E.2d 649, 158 W. Va. 298

• Court: West Virginia Supreme Court
• Decided: December 20, 1974
• Docket: 13537
• Status: Published

Opinions

Berry, Justice:

This original proceeding in mandamus was instituted by Patrick Casey against Jack L. Pauley, individually and as the County Clerk of Kanawha County, Dewey E. S. Kuhns, Thomas Black, and Kelly Castleberry, individually and as Commissioners of the County Court of Ka-nawha County and ex-officio board of canvassers, and Judge George W. Wood, individually and as incumbent Judge of the Intermediate Court of Kanawha County, West Virginia, to compel the county court as the ex-officio board of canvassers to reconvene for the purpose of certifying the petitioner as the one elected to the office of Judge of the Intermediate Court of Kanawha County in the November 5, 1974 general election. This Court granted a rule in mandamus on November 25, 1974 returnable December 3, 1974 but the case was continued until December 10, 1974. The county court filed a demurrer and the respondent Wood filed an answer to the petition and the case was submitted for decision on the briefs and oral arguments on behalf of the respective parties.

In the November 5, 1974 general election the petitioner, Patrick Casey, the prosecuting attorney of Kanawha County, was the Democratic nominee for the office of Judge of the Intermediate Court of Kanawha County and George W. Wood, who held the office of Judge of the Intermediate Court of Kanawha County before the general election, was the Republican nominee. Judge Wood’s term of office was to expire on December 31, 1974. At the general election the petitioner received 31,490 votes and the respondent, George W. Wood, received 23,678 votes. At the same general election on November 5, 1974 the voters of Kanawha County, as well as voters statewide, voted upon the question of ratification of a proposed amendment to the Constitution of West Virginia, which was designated as the Judicial Reorganization Amendment. In Kanawha County the voters voted 30,546 for ratification and 15,579 against ratification of the amendment. The Judicial Reorganization Amendment was ratified by a large majority throughout the state.

On November 18, 1974 the board of canvassers completed its canvas and publicly announced that the petitioner received 31,490 votes and respondent George W. Wood received 23,678 votes. On November 20, 1974 Jack L. Pauley, the County Clerk of Kanawha County, submitted the certificate of election results to the board of canvassers. However, the certificate of election results omitted the results with respect to the office of Judge of the Intermediate Court of Kanawha County. Jack L. Pauley stated in an accompanying letter to the board of canvassers: “The ratification of the Judicial Reform Amendment raises certain questions concerning the expiration of the term of office of incumbent Judge George W. Wood. Until these questions are finally resolved, I would withhold certification of Patrick Casey as the winner of that election.” The board of canvassers then certified the results of the November 5, 1974 general election, omitting certification of the results of the office of Judge of the Intermediate Court of Kanawha County.

The petitioner asked the board of canvassers, by letter, to reconvene and certify him as the winner of the office of Judge of the Intermediate Court of Kanawha County. However, the board of canvassers wrote a letter to the petitioner informing him that the ratification of the Judicial Reorganization Amendment raised certain questions concerning the date of expiration of Judge Wood’s term of office and refused to certify the petitioner as winner of that election until the questions were resolved by a court of competent jurisdiction.

Article VIII, Section 5 of the amendment which was ratified by the voters on November 5, states that: “* * * each statutory court of record of limited jurisdiction existing in the State immediately prior to such effective date shall become part of the circuit court for the circuit in which it presently exists, and each such judge of such statutory court of record of limited jurisdiction shall thereupon become a judge of such circuit court.” Article VIII, Section 7 provides that:

“Any justice of the supreme court of appeals and any judge of any circuit court, including any statutory court of record of limited jurisdiction which becomes a part of a circuit court by virtue of section five of this article, in office on the effective date of this article shall continue in office until his term shall expire, unless sooner removed or retired as authorized in this article: Provided, That as to the term of any judge of a statutory court of record of limited jurisdiction which does not expire on the thirty-first day of December, one thousand nine hundred seventy-six, the following provisions shall govern and control unless any such judges shall be sooner removed or retired as authorized in this article: (1) If the term would, otherwise expire before the thirty-first day of December, one thousand nine hundred seventy-six, such term shall continue through and expire on said thirty-first day of December, one thousand nine hundred seventy-six (2) if the term would otherwise expire on the first day of January, one thousand nine hundred seventy-seven, such term shall terminate and expire on the thirty-first day of December, one thousand nine hundred seventy-six, and (3) if the term would otherwise expire after the thirty-first day of December, one thousand nine hundred seventy-six, but other than on the first day of January, one thousand nine hundred seventy-seven, such term shall continue through and expire on the thirty-first day of December, one thousand nine hundred eighty-four.”

The threshold question to be answered in this proceeding is whether or not mandamus is a proper remedy in a case of this kind. Mandamus cannot be used for the trial of an election contest case in the first instance. State ex rel. Booth v. State Board of Ballot Commissioners, _ W. Va. _, 196 S.E.2d 299 (1973). There is no question that the petitioner received the greater number of votes for the office for which he was a candidate at the November 5, 1974 election and the election itself is not contested. The certificate of election and the certificate of the results of the election were withheld as to the petitioner because of certain questions raised by the respondents. It is true the board of canvassers cannot determine constitutional questions or interpret a constitutional amendment. Dickinson v. Thorn, 102 W. Va. 673, 135 S.E. 478 (1926). However, the certification of the results of an election by a board of canvassers is a non-discretionary duty and mandamus lies to require the discharge of such duty by public officials. Mandamus lies to compel a board of canvassers to perform its legal duty. Code 3-1-45, as amended. Duncan v. Cabell County, 138 W. Va. 106, 75 S.E.2d 97 (1953); State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S.E.2d 416 (1949). This Court has held that mandamus may be used to determine constitutional questions. State ex rel. City of Charleston v. Coghill, _ W. Va. _, 207 S.E.2d 113 (1973); State ex rel. Building Commission v. Moore, _ W. Va. _, 184 S.E.2d 94 (1971); State ex rel. County Court v. Demus, 148 W. Va. 398, 135 S.E.2d 352 (1964); State ex rel. County Court v. Bane, 148 W. Va. 392, 135 S.E.2d 349 (1964).

It is agreed by the parties in this proceeding that the date of the ratification of the Judicial Reorganization Amendment was November 5, 1974, the date of the election. Under the law, this is the date a constitutional amendment becomes effective unless another date is otherwise specified in the amendment. State ex rel. O’Connell v. Duncan, 108 Mont. 141, 88 P.2d 73 (1939); Whitcomb v. Young, 279 N.E.2d 566 (Ind. 1972). The provisions of the Judicial Reorganization Amendment pertinent to the questions raised in this proceeding are self-executing since no legislation is necessary to give effect to the provisions. See, Kneip v. Herseth, 214 N.W.2d 93 (S.D. 1974); Appeal of Crescent Precision Products, Inc., 516 P.2d 275 (Okla. 1973); Haile v. Foote, 901 Idaho 213, 409 P.2d 409 (1965).

It is clear from the pertinent provision of the Judicial Reorganization Amendment that the term of office of the respondent George W. Wood is extended through December 31, 1976. This is clearly provided for in the following language of section 7: “Any justice of the supreme court of appeals and any judge of any circuit court, including any statutory court of record of limited jurisdiction which becomes a part of a circuit court by virtue of section five of this article, in office on the effective date of this article shall continue in office until his term shall expire, * * * Provided, That as to the term of any judge of a statutory court of record of limited jurisdiction which does not expire on the thirty-first day of December, one thousand nine-hundred seventy-six, the following provisions shall govern and control * * * (1) If the term would otherwise expire before the thirty-first day of December, one thousand nine hundred seventy-six, such term shall continue through and expire on said thirty-first day of December, one thousand nine hundred seventy-six * *

The respondent George W. Wood was a judge of a statutory court of limited jurisdiction immediately before the ratification of the Judicial Reorganization Amendment, and his term of office expired on December 31, 1974. Therefore, his term would otherwise expire before December 31, 1976 but for the Judicial Reorganization Amendment. Therefore, his term continues through, and expires on, said thirty-first day of December, nineteen hundred seventy-six. No language could be clearer than the quoted language extending Judge George W. Wood’s term of office from December 31, 1974 through December 31, 1976. Courts are not concerned with the wisdom or expediencies of constitutional provisions, and the duty of the judiciary is merely to carry out the provisions of the plain language stated in the constitution. Parkin Printing and Stationery Co. v. Arkansas Printing & Lithographing Co., 234 Ark. 697, 354 S.W.2d 560 (1962).

If a constitutional provision is clear in its terms and unambiguous in its meaning this Court must apply, and not interpret, the provision. State ex rel. Smith v. Gore, 150 W. Va. 71, 143 S.E.2d 791 (1965); State ex rel. Zickefosse v. West, 145 W. Va. 498, 116 S.E.2d 398 (1960). This principle is clearly stated in point 3 of the syllabus of the State ex rel. Smith v. Gore, supra, case in the following language: “Where a provision of a constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, it should be applied and not construed.” See, Richardson v. Ramirez, U.S., 94 S.Ct. 2655, _ L.Ed.2d _ (1974).

There is no question that terms of office can be extended by the vote of the people ratifying a constitutional amendment. Haile v. Foote, supra; State ex rel. O’Connell v. Duncan, supra; State ex rel. Mathews v. Houndersheldt, 151 Minn. 167, 186 N.W. 234 (1922); Whitcomb v. Young, supra. The case of Wingate v. Flynn, 139 Misc. Rep. 779, 249 N.Y.S. 351 (1931), cited by the petitioner, presents a different situation from that in the case at bar. In that case the judicial amendment became effective after the election of the judge.

It is abundantly clear that the provisions of section 7 of the Judicial Reorganization Amendment ratified by the people on November 5, 1974 extended the term of the respondent George W. Wood for a period of two years. Therefore, the respondent George W. Wood not only became a circuit judge on November 5, 1974 under the clear and unambiguous provisions of section 5 and section 7 of the Judicial Reorganization Amendment but his term of office under which he was serving was also increased or extended for a period of two years.

It would also appear from the clear provision of Section 5 of the Judicial Reorganization Amendment that the petitioner, Patrick Casey, was also elected to a full term as a circuit judge. The pertinent provision of section 5 reads as follows: “Upon the effective date of this article, each statutory court of record of limited jurisdiction existing in the State immediately prior to such effective date shall become part of the circuit court for the circuit in which it presently exists, * * *.” The regular term of the Intermediate Court of Kanawha County expires on December 31, 1974 and it was necessary to have a candidate for such office voted upon at the election held on November 5, 1974. If the Judicial Reorganization Amendment had been rejected by the people on November 5, 1974 the Intermediate Court of Kanawha County would still be in existence. However, simultaneously with the ratification of the Judicial Reorganization Amendment the petitioner, Patrick Casey, was elected by a vote of the people. Although placed on the ballot as Judge of the Intermediate Court of Kanawha County, the petitioner was in effect elected to the office of Judge of the Circuit Court by virtue of the ratification of the Judicial Reorganization Amendment. The provisions of section 7 of the Judicial Reorganization Amendment extended the term of office of the respondent Judge George W. Wood as a circuit judge for a period of two years, and, therefore, by virtue of the amendment drafted by the legislature and ratified by the people and the petitioner’s election, an additional circuit judge in Kanawha County, the Thirteenth Judicial Circuit, was created and both the petitioner Patrick Casey and the respondent George W. Wood are now circuit judges for the Thirteenth Judicial Circuit. To hold otherwise would charge the legislature for being responsible for thwarting the will of the people and disenfranchising them.

The legislature has the authority under the provisions of Article VIII, section 5 of the Judicial Reorganization Amendment to determine not only the number of circuits but the number of circuit judges to serve in such circuits.

For the reasons stated herein, the writ of mandamus, as molded, will issue directing the respondent Jack L. Pauley to prepare a separate certificate of election of petitioner Patrick Casey to the office of Judge of the Thirteenth Judicial Circuit of West Virginia, and deliver to the commissioners of the county court who are directed to reconvene as a board of canvassers, enter a proper certification order, and issue to the petitioner Patrick Casey a separate certificate of election to the office of Judge of the Thirteenth Judicial Circuit.

Writ awarded.