Hasson v. City of Chester ( 1910 )

PofeeNbaRgeR, Judge:

For a municipal election in the City of Chester, Hancock county, the republican voters nominated a full set of candidates by convention. Another body of voters nominated a full list 'of candidates by a petition in which their organization was named the Independent Party. A third body, calling themselves the democratic party, held a meeting at which they passed resolutions, declaring their allegiance to certain principles, and appointed a committee for service in the election, but did not nominate any candidates to be voted for therein. Each of these organizations demanded representation in the precinct boards of commissioners, ■ appointed to conduct the election, and a challenger at each precinct. Accordingly the respective committees of the independent and democratic parties designated, for appointment by the council of the town, one man for commissioner and one for challenger at each precinct. The republican committee also made recommendations, .and the council, deeming the. independent party not entitled to representation because it was a new party, refused to appoint the men named by its committee and appointéd those designated by the republican and democratic committees. Thereupon Geo. A. Hasson, the candidate nominated for mayor by the independent party, applied to this Court for a peremptory writ of mandamos to compel the council to appoint,' as commissioners and challengers, the persons named for said positions by the executive committee of his party.

Section 7 of chapter 3 of the Code of 1906, relating- to general elections, as modified by section 85 of said chapter, adopting' it for the purposes of municipal elections, governs the appointment of commissioners. As so modified, said section requires the council to appoint three qualified voters as commissioners of election for each precinct, in the city or town. The persons so appointed must be of good standing apd character and not addicted to drunkenness. These provisions are followed by this clause: “They shall be selected from the two political parties which at the last preceding election cast the highest number of votes, * *, * and not more than two of them shall belong to the same political party.” It is then provided that if the executive committee of either party from which such commissioners are to be selected or appointed, shall present a writing signed by them or their chairmen, requesting the appointment of a qualified voter of their political party, it shall be the duty of the council to appoint such person. As to challengers the statute, as applied to municipal corporations, requires the council to appoint members of the two leading parties, upon the nomination of the chairmen of their committees.

Though a great many previous elections have been held in the City of Chester, no regularly organized political parties ever participated therein as such. In other words, no party candidates were ever nominated for such elections. For general political purposes the voters have been divided between the two great political organizations, republican and democratic, but they have never participated in these municipal elections as such, nor otherwise than as citizens. This is an established fact in the case, in view of which, it'is clear that all three of these parties, the republican, democratic and independent, are new parties for the purposes of the election. The council, in making its appointments, must have determined the status of the republican and democratic parties by votes cast for their candidates in prior magisterial district, county, state and national elections, since it regarded them as parties, having received the highest number of votes in the last preceding election. This is not the test for municipal elections. Section 85 of chapter 3 of the Code of 1906 expressly rejects it by recognition of ’the well known fact, that the regular political parties do not always participate as such in municipal elections. It says “The rights of designation of election officers by political parties shall be exercised by the chairman of committees of such parties in the municipality, if such there be.” This necessarily negatives the idea of recognition, for municipal elections, of the general political parties; but terms of negation are not necessary, for the'elections are separate and distinct in nature. It is essential to the recognition of parties in such elections that they organize for, and participate in, them, as such, and, when they have done that, their status must be determined by the votes cast for their candidates in the last preceding municipal election. From this conclusion, it follows that none of these political parties had any record in the last preceding municipal election, entitling them to preference in the selection of election commissioners and challengers. They are all new parties for the purposes of this election.

The council fell into another error in considering the democratic organization as a party at all. It had not nominated any candidates. Neither its members nor any other voters could vote for anybody in the election as a democrat. Nobody was running or soliciting votes as a democratic nominee. - The record before the council disclosed only two sets of candidates, republican and independent, between whom and their associates the contest was to occur and be fought out. The gentlemen who affiliate with the democratic party in general politics were not maintaining such affiliation in the municipal contest. They necessarily intended to vote as republicans and independents. Nominated candidates are the leaders and representatives of organizations. They are essential to organized participation in an election. A party, not so represented, is not participating as an organization at all. The whole system of statutory regulation is founded upon the assumption of such representation. Party organization for an election begins with the nomination of candidates by convention, primary election or petition.

In view of this situation, what was the duty of the council? If the mere letter of he statute is to be'regarded, neither of the two partigs having candidates in the field was entitled to representation, for neither of them had made any record of votes cast for its candidates in the last preceding election. Did this circumstance confer .upon the council discretion to ignore the recommendation, made by all the committees, and appoint men of its own selection for commissioners and challengers? There is no express direction as to what its duty is under such circumstances. As that duty is not found in the letter of the statute, it must be disclosed by its spirit or not at all. Does it confer upon the leading parties right to representation in the election boards in all elections, when there are such parties, or does it give it only when the existence of such parties is shown by the record of the last preceding election? Fairly construed, we think it impliedly adopts the principle of such representation in all elections in which political parties or organizations participate. It does not say in express terms the right of representation shall exist in any election, but on the assumption that it does exist, it prescribes a method for determining the right of .preference. -Having impliedly recognized the right of representation, it does not limit it. Nowhere does it say the leading parties shall not have representation. Nowhere does it sajr, in express terms, they shall have it. But that they do not have it is assumed by the prescription of a method of determining the right of preference. By this provision, it is impliedly given, and, being given, it is not limited or restricted. Given in general elections and not denied in municipal elections, given, when there are leading parties as shown by preceding elections, and not denied, when there are leading parties, but not shown to be such by the preceding election, it must be assumed the legislature intended it for all elections. The plain purpose of the statute is to give representation to the leading parties in the interest of fairness and honesty in elections. Prima facie right, shown by the face of election returns, is substantial and important. Knowledge of what occurs in the election rooms is essential to the ascertainment of both the prima facie and ultimate rights of candidates. Representation of the leading parties, having candidates in the field, is promotive and protective of both of these important rights. It is impliedly given by the statute and not expressly limited, as we have seen. The rule of liberal construction applies, since the statute is remedial and not penal- “A thing within the intention of the makers of the statute is as much within the statute as if it were within the letter.” Stowel v. Zouch, 1, Plowd. 366. See also United States v. Freeman, 3 How. (U. S.) 565; United States v. Babbitt, 66 U. S. 55; State v. Harden, 62 W. Va. 313, 345; Layne v. Railway Co., 66 W. Va. 607; Delaplane v. Crenshaw, 15 Grat. 457; Postmaster Gen. v. Early, 12 Wheat. 136. This rule of construction was applied, in Layne v. Railroad Co., under circumstances and conditions very similar to those found' here.

This construction makes the statute operate equitably and justly. That contended for by the defendants would make it work injustice and oppression. With a partisan council or county court and two hostile committees of parties without candidates in the election, the real contestants could be denied all representation in the election rooms and all knowledge of transactions, occuring therein, however irregular, illegal or even fraudulent. A construction, making such results possible, should never be adopted, if the terms of the statute, viewed in the light of its purpose and spirit, will permit any other, productive of fair and just results. Dickey v. Smith, 42 W. Va. 805; Old Dominion &c. Ass’n v. Sohn, 54 W. Va. 101; Immigration Society v. Com., 103 Va. 46.

Agreeably to these views, principles and conclusions, we have held the democratic committee not entitled to designate persons for commissioners and challengers and awarded the writ, prayed for, commanding the council to appoint the persons designated for commissioners and challengers by the committee of the independent party.

Writ Granted.