Bevins v. Blackburn

Given, Judge,

dissenting:

The controlling facts are easily understood. Respondent Blackburn, with his wife, moved to a dwelling on Mulberry Street, in the City of Williamson, in 1951. In accordance with information then deemed correct, he registered as a voter in precinct 3, ward 2, and voted in that precinct at several elections. In 1954, the duly appointed and qualified registrars, required by law to register the qualified voters in the precincts involved, visited the home of respondent in his absence and, after an independent investigation of the very matter here involved, required the wife of respondent to register as a voter in precinct 6 of ward 3. There is no question that *576 one of the lines separating precinct 3 and precinct 6 passes through the property of respondent. Subsequently, for the sole reason that the duly appointed registrars had required his wife to register in precinct 6, respondent caused his registration to be transferred from precinct 3 to precinct 6. The transfer was actually made by officers duly appointed and qualified for that purpose. The transfer was not challenged or in any way objected to until long after respondent had been elected as councilman for the city. Neither does the record show that the vote of respondent was challenged in the election at which he was elected. Respondent duly qualified for the office to which he was elected and, at the time of the entry of the order removing him from office, had served more than one half of the term for which he was elected.

The only basis for the removal of respondent from the office to which he was elected rests on the supposed fact that he was not entitled to vote because he was not properly registered as a voter of precinct 6 of ward 3. That fact is merely assumed by the majority, not even discussed in the majority opinion, on the basis of a final determination of the line dividing precinct 6 from precinct 3. I think that such basis does not constitute the controlling — not even a material — fact in the case. The record unequivocally shows that the question as to which precinct respondent was entitled to vote at in the particular election was determined and settled by properly constituted authority before the election, and that respondent was unquestionably “entitled to vote”, and did vote without challenge, at precinct 6 in the election at which he was elected. What might be determined subsequently as to the true location of the dividing line, should not be permitted to invalidate a prior election duly and regularly held, precisely as provided by law.

Article 2 of Chapter 3 of the Code provides a permanent and uniform registration system for all elections within the State. Section 3 of that article, as amended, provides: “No voter otherwise qualified shall be permitted to vote at any election unless he shall have been *577 duly registered or shall have placed himself within the ‘challenged voters’ provision of this chapter.” Clearly, by this section the Legislature intended that all persons registered as required by statute should be “entitled” to vote, some, perhaps, by “challenged” vote, but vote nevertheless. Section 16 provides for the appointment and qualification of registrars. One of the requirements provided is that a registrar “shall take an oath that he will perform the duties of the office to the best of his ability”, and one of the specific requirements is that he “shall determine whether or not such person” is entitled to register. Section 17 makes provision as to compensation of registrars. Section 32 provides that “Any person claiming the right to register may be challenged by the clerk of the county court or by any registrar, or, provided they appear in person at the office of the clerk of the county court, by the chairman of a political party or any other qualified voter”; and Section 37 provides for hearings of questions raised as to the registration of any voter by the county court, for appeals from rulings of the county court to the circuit court, and from the circuit court to the Supreme Court of Appeals. In view of such comprehensive and precise method provided by the Legislature for the determination of any question as to whether a particular citizen is “entitled to vote” at a particular election, and since, in the instant case, the duly appointed registrars were public officials, duly qualified and serving, and compensated from public funds, according to law, it is unequivocally clear that the respondent was entitled to cast his vote at precinct 6 at the election at which he was elected. The “determination” of the right of respondent to vote at that precinct in that election, by regularly constituted authority, having not been challenged in any manner within the time provided by statute, it should be respected. Even though the pertinent provisions of the special charter, quoted in the majority opinion, are construed to be in conflict with provisions of the permanent registration law, it should not, in effect, be permitted to supersede or nullify provisions of the legislative enactment. Moreover, the per *578 manent registration law, in effect at the time respondent was elected, was enacted subsequent to the act constituting the special charter.

In my view, the exact point here involved was settled, settled so firmly that it has not since been raised in this Court, in Phares v. The State, 3 W. Va. 567 . In that case a rule was issued against Phares, requiring him to show cause why he should not be removed from the office of Sheriff of Randolph County, on allegations to the effect that he was not a properly registered voter. As did respondent in this case, after his election Phares duly qualified for the office to which he had been elected. After his election and qualification, the “board of registration of the county having certified to the circuit court that he was not entitled to vote”, the Circuit Court of Randolph County removed him from office. This Court reversed the judgment of the circuit court and reinstated Phares as Sheriff of Randolph County. After noting that evidence, offered for the purpose of showing that Phares was not entitled to vote, was inadmissible, this Court stated: “* * * But the most material and important error in the case was in depriving an officer of his office, because of the fact alleged, to wit: that his name had, by order of the board of registration, been striken from the list of registered voters of the county, even if the fact had been legally made to appear.

“The constitution prescribes who are entitled to vote, and it also provides that any person so entitled to vote shall be eligible to office. The defendant possessed all the qualifications required by the constitution and laws to vote and hold office at the time he was elected and qualified as sheriff for Randolph county * * Clearly, the holding is to the effect that where a candidate for office was duly registered at the time of his election, the striking of his name from the registration list subsequent to the election, though evidence established that the officer was not entitled to register, would not preclude the person from qualifying for and serving in the office to which he was elected. The same constitutional *579 provision governing in that case should govern in the instant case.

As above noticed, the only possible basis for the removal of respondent from office was the contention that he was not “entitled” to vote at the election at which he was elected. Code, 3-2-3, quoted above, makes it unquestionably clear that persons who have registered in accordance with the permanent registration law shall have the right to exercise the privilege of voting, though in some possible cases by “challenged” vote. Being thus “entitled” to vote, respondent, in my opinion, brings himself within the required qualifications. Ample authority is found to the effect that courts will not deny a citizen the right to vote, or to have his vote counted, merely because of some mistake or wrong committed by election officials, such as registrars. The same principle is applicable to the holding of office. In Williamson v. Musick, 60 W. Va. 59 , 53 S. E. 706 , this Court held: “5. As a general rule, when the true result of a legal election has been ascertained, or can be ascertained, by the officers charged with the performance of the duty, no irregularity, mistake, or even fraud, committed by any of the officers conducting the election, or by any other person, will render the election void.” In the instant case, no fraud or bad faith on the part of respondent or other person is even intimated. Admitting that the registrars, public “officers”, may have made a mistake as to the precinct in which respondent was a resident, under the holding quoted and many others which could be cited, the mistake of public officers should not be made the basis for declaring void the election as to respondent, thereby effectually disfranchising a majority of the voters of the entire ward. Such a holding would be contrary to reason and justice, and not in accord with the prior holdings of this Court. No person, of course, is entitled to vote or to hold office unless his qualifications are those demanded by the Constitution. The right of a person to hold office when elected or appointed thereto, however, is a right which should be protected by law. *580 See Simms v. County Court of Kanawha County, 134 W. Va. 867 , 61 S. E. 2d 849 ; State ex rel. Lawhead v. County Court of Kanawha County, 129 W. Va. 167 , 38 S. E. 2d 897 ; Brannon v. Perkey, 127 W. Va. 103 , 31 S. E. 2d 898 ; Funkhouser v. Landfried, 124 W. Va. 654 , 22 S. E. 2d 353 .

Being of the views indicated, I respectfully dissent. I am authorized to say that Browning, Judge, concurs in the views herein expressed. We would affirm the judgment of the Circuit Court of Mingo County.