State Ex Rel. Thomas v. Board of Ballot Commissioners

In my judgment Chapter 48 of the Acts of the Legislature of 1943, clearly limits the nomination of candidates for membership on a Board of Education so that there can be: (1) two nominees, and no more, from a district in which there is no present member who will continue as such into the term for which the nominations are to be made; (2) one nominee, and no more, from a district from which there will be one such member held over; and (3) no nominees from a district from which there will be two such holdovers. This view of the statute has been officially announced by the Attorney General of the State and appears to me to be legally unavoidable.

The sole subject matter of the proviso under consideration is the limitation of the number of nominations which can be made from one magisterial district. This is self-evident. The proviso enumerates the three, and the only three, situations which can possibly arise: districts with no holdovers, districts with one holdover, and districts with two holdovers; and then makes specific provisions applicable to each. True, the language of the act is prohibitive in the first two cases and permissive in the third, but this grammatical form is accounted for by the fact that the permissive provision is set against, and in contrast to, a previous prohibition. Only one candidate can be nominated from a district from which there will be one holdover. The meaning is thus perfectly clear. But if there is considered to be any doubt or ambiguity in the language used, all canons of construction lead to the same interpretation.

The permission to make one nomination from a district with only one holdover operates to deny the right to make more than one nomination. Everyday reasoning and a universally recognized rule of construction will so interpret it. "The maxim,'expressio unius est exclusio alterius', is especially applicable in the construction and interpretation of statutes."Tate v. Ogg, 170 Va. 95, 195 S.E. 496. This maxim has been frequently so utilized by this Court. Taylor v. Taylor, 66 W. Va. 238,66 S.E. 690; Neale v. County Court of Wood County,43 W. Va. 90, 27 S.E. 370; Brannon v. County Court ofKanawha County, 33 W. Va. 789, 11 S.E. 34; State v. Gilman,33 W. Va. 146, 10 S.E. 283.

The situation sought to be remedied by the Act of 1943 is well known. The Act of 1941 proved to be largely impracticable, often resulting in the choosing of a nominee, who, when elected, could not serve because of the statute forbidding more than two members of the Board of Education from one district, and at the same time resulting in no election at all for certain vacancies to be filled. State ex rel. Miller v. Boardof Education, 126 W. Va. 248, 27 S.E.2d 599; Orndorff v.Potter, 125 W. Va. 785, 25 S.E.2d 911. This defect in the statute which needed remedying may be looked to in construing the present statute, and thus impel to a construction which will operate as a remedy, not only to a part of the evil, but the whole thereof. Bloyd v. Scroggins, 123 W. Va. 241,15 S.E.2d 600; Shipley v. Jefferson County, 72 W. Va. 656,78 S.E. 792; Wellsburg and State Line Railroad Company v. PanHandle Traction Company, 56 W. Va. 18, 48 S.E. 746; Daniel v.Simms, 49 W. Va. 554, 39 S.E. 690.

The sole purpose of primary and general elections is to choose public officers. Hence, that construction of election statutes should be preferred which will produce this result, rather than one which may, and probably will, be abortive. We may look to the end manifestly sought by the Legislature to determine the meaning of a statute.Hall v. Baylous, 109 W. Va. 1, 153 S.E. 293.

The provision that one nomination may be made from a district having one holdover is a limitation to one nominee, or it is nothing. No statutory permission to make such single nomination is necessary; this right already existed. It will not be presumed that the Legislature inserted this provision for nothing. Every provision of a statute must be given some meaning, if possible. State v. Jackson, 120 W. Va. 521,199 S.E. 876; Ex Parte James Watson, 82 W. Va. 201, 95 S.E. 648.

Thus the statute, standing alone, seems to bear no possible interpretation except that given to it by the Attorney General.

But it is said that, as this statute did not also repeal the Act of 1941 directly, a sufficient part of that statute survives against implied repeal to dilute and modify the meaning of the Act of 1943. But repeals by implication have always been recognized. If a later statute is repugnant to a part or all of a former one, that former statute is repealedpro tanto. State v. Michaels, 103 W. Va. 634, 138 S.E. 199;Board of Education v. County Court of Tyler County, 77 W. Va. 523,87 S.E. 870; Grant v. Baltimore Ohio Railroad Co., 66 W. Va. 175,66 S.E. 709; Shields and Preston v. Bennett, 8 W. Va. 74. And if a later statute covers completely its subject, all earlier statutes thereon are superseded. State v. Snyder, 89 W. Va. 96,108 S.E. 588; Farmers Merchants Bank of Reedsville v. Kingwood National Bank, 85 W. Va. 371, 101 S.E. 734; Overton v. Heckathorn, 81 W. Va. 640, 95 S.E. 82; Cunningham v. Cokely,79 W. Va. 60, 90 S.E. 546; Ex Parte Philip Gilbert, 78 W. Va. 658,90 S.E. 111; Brown v. County Court of PrestonCounty, 78 W. Va. 644, 90 S.E. 166.

It is perfectly clear, I think, that the Act of 1943, providing definite limitation to the number of nominees which may be made from districts, deals completely with that subject — a very narrow subject, but, nevertheless, a subject. It must, therefore, be accepted at its full face value, and all earlier statutory provisions on the subject must be considered as superseded. Also, there can be no doubt that the provisions of the Act of 1943, giving an express numerical limit to nominations from districts, is repugnant absolutely to the provisions of the Act of 1941, which authorizes, or, at least, permits, two such nominations, regardless of one holdover member from a district. On either principle, the Act of 1943 must be considered as superseding, not as being in any way modified by, the Act of 1941.

It is suggested, however, that the Act of 1943, insofar as it relates to nominees for membership on a Board of Education, is, at law, a mere amendment and reenactment of the Act of 1939, and, therefore, when so amended and reenacted, takes effect in some sort of nunc pro tunc manner as of the date of the original 1939 Act, and hence is dominated and modified by the intervening Act of 1941. This rather startling proposition finds expression in Syllabus 3 of the case of Board ofEducation v. County Court of Tyler County, supra, which reads as follows:

"Generally, where a later law is merely a reenactment of the former it will not be regarded as repealing the intermediate act, which qualified and limited it, but the intermediate act will be deemed to remain in force qualifying or modifying the new act as it did the first."

Fortunately, however, this doctrine is tempered by Syllabus 4 of the same case, in the following language:

"But an exception to the general rule lastly stated is that when the intermediate act and the new or re-enacted law are in irreconcilable conflict, the latter will prevail over the intermediate act, under the general rules above stated, as being the last expression of the legislative intent."

We think there can be no doubt that Point 4 of this syllabus, and not Point 3, covers squarely the case at bar, and that, therefore, the Act of 1943 must be considered as "the last expression of the legislative intent".

It follows, therefore, that the petition of the relator, Thomas, should be rejected. Of course, Mrs. Dale Thomas, coming from Charleston District, is likewise barred of nomination. All agree that N. N. Snyder, of Big Sandy District, must be considered as having been nominated. In Loudon District, however, there is one holdover member of the Board, and one nominee at this primary election for a short term who is conceded, by all parties in this case and by all members of this Court, to be nominated. This, in my judgment, makes impossible the nomination of any candidate for a long term from that district. It is true that Charles P. McCabe, the candidate for the short term, and B. B. Evans and W. O. Morris, from the same district, who were candidates for the long term, did not run against each other; but McCabe was unquestionably nominated, having both a majority of the votes for the nomination for which he was a candidate and the necessary residence, while Evans and Morris are only secondarily nominated, having no claim except by virtue of the fact that others with more votes than themselves had become disqualified. The unquestioned nomination of McCabe exhausts the number of nominations to which Loudon District was, by law, entitled, thus eliminating Evans and Morris. The two candidates having the next highest number of votes after those mentioned are, therefore, Elbert R. Cook, of Big Sandy District, and Frances S. King, of Cabin Creek District, in neither of which districts is there a holdover operating as a bar to nomination. I, therefore, would award the writ of mandamus sought by these candidates.

Judge Riley authorizes me to state that he joins in this note.