State ex rel. Marcum v. County Court of Wayne County

Poffenbarger, President: The relators in this proceeding- seek a peremptory writ of mandamus to compel the County Court of Wayne County to order an election, upon what is claimed to be a sufficient petition, to ascertain in the statutory manner, the will of the voters of that county, on the question of relocation of its county seat or removal thereof from the town of Wayne to the City of Kenova. The return of the County Court and the members thereof to the alternative writ awarded endeavors to justify refusal to call such an election and dismissal of the petition, upon the ground of insufficiency of the number of legal voters uniting in the petition and uncertainty as to the number of voters among the more than six thousand persons whose names appear in the petition. Construction of a certain clause of the statute providing for such an election, see. 15, ch. 39 of the Code, seems to be the most important issue involved. It requires a petition to be filed by two-fifths of all the legal voters of the county, to be estimated by allowing one vote for every six persons in it, as shown by the last preceding census. Extension of the — 108 — elective franchise to the women of the state, since that statute was passed, has no doubt doubled the voting population of each county. Nevertheless, the statutory basis of ascertainment of the number of legal voters, for the purposes of such a petition, has not been altered. Adherence to the principle of the provision would now require such a petition to be signed by two-fifths of two-sixths, or one-third, of the population as shown by the last preceding census. In view of the manifest inaccuracy of the statutory method of ascertaining the voting population of a county, under present conditions, it is insisted that this provision of the statute has been impliedly repealed or modified by the constitutional and statutory extension of the elective franchise to the women; and that only the portion of the clause, which requires the signatures of two-fifths of all the legal voters can be deemed now to be in force. Lack of intent on the part of the Legislature to require even an approximation of the actual number of voters to be ascertained for such purpose and the adoption of a purely ai’bitrary standard or basis for the determination of the number of signatures, are clearly manifest. Under the statute, such an election may be held in the tenth year after a census has been taken, and, although within the more than nine years, the voting population of a county may have doubled or trebled, the basis is one-sixth of the population as shown by that census. In many of the mining and industrial sections of this state, the population has no doubt doubled within such period, and yet the legislature, presumptively cognizant of such results, has not seen fit to make any alteration in the basis of the petition. Moreover, in view of the wisdom which the courts attribute to legislatures, such results must be deemed to have been foreseen by that body. It may be safely asserted, therefore, that nothing more than a purely arbitrary basis was intended. If the purpose was to require the petition to be signed by two-fifths of all the voters in the county, a different method of ascertaining the number would have been adopted, for it must-have been perfectly manifest that one-sixth of the population as shown by the last preceding census would not always even — 109 — approximate the total number in a growing state. Prior to the amendment of the statute made by ch. 37 of the Acts of 1891, so as to require the petition to be signed by two-fifths of the voters, the legislative policy respecting the requirement for the allowance of such an election, was much more liberal than it is now. Prom 1872 until 1891, the signatures of only one-fifth of the voters were required and the voting population was indicated in the manner now provided, namely, by division of the entire population, as shown by the last preceding census, by six. Nothing in the nature of such an election raises the high degree of legislative solicitude respecting the relative number of petitioners, assumed in the argument for implied repeal or modification of the statute. The calling of such an election is a legislative function in the exercise of which the law making body, for convenience and precaution against error makes use of the county court, as an administrative agency, limiting its action by a requirement of initiation by a minority of the voters and final determination by the will of all, expressed by a three-fifths vote of those participating. Baker v. O’Brien, 79 W. Va. 101, 104. Nor is the legislative power limited or restrained by anything in the constitution. Not a word in the organic law forbids authorization of county courts to call such elections upon their own motions and without any petition. The only reference to the subject found in it is the inhibition of location or relocation by special acts. Con. Art. VI, sec. 39. Limitation of the authority of county courts respecting such elections and the bestowal of initiative power upon voters rest upon nothing more than sound legislative discretion. Location and relocation of a county seat are conditional legislative grants or acts made effective upon compliance with annexed conditions, by the voters and the county court. Morris v. Taylor, 70 W. Va. 618; State v. Harden, 62 W. Va. 313, 363. Finding nothing in legislative policy nor in the constitution, to sustain the view that repeal or modification of the provision in question must have been intended, upon the ground of legislative necessity, we inquire whether any terms are found in the act extending the elective franchise to the — 110 — women, or elsewhere, indicative of intention to effect such repeal or modification. A careful search reveals none and it is not claimed that there are any. Nothing is invoked in support of such intention, except the silence of the legislature respecting repeal or modification, and the great increase in the number of voters. In these circumstances, we find no evidence of it. If the legislature had dealt with the subject, it might have deemed one-fifth of the number of voters sufficient under present conditions. ¥e are not at liberty to speculate as to what that body might have done or probably would have done, if it had seen fit to legislate upon the subject. On the other hand, its silence signifies acquiescence in the provision and satisfaction therewith. The arrangement does not now require the signatures of two-fifths of all the voters. It did not do so under prior conditions. There is an inconsistency in the requirement of the signatures of two-fifths of the voters and ascertainment of the total number, by taking one-sixth of the population as given by the last census. As has been shown, there was such inconsistency before the elective franchise was extended to the women. Hence, there is nothing in this circumstance, strongly arguing intent to repeal or modify. Unexpressed intention does not suffice. As disclosed by the census taken in the year 1920, the population of Wayne County was then 26,012. One-sixth of that number is 4,335. Taking two-fifths of it, as the number required for the purposes of the petition, we have 1,734. On the petition filed, there are 6,136 signatures. Of these, 1,319 were eliminated because the names did not appear on the registration books, 5, because the parties represented by them were held to be minors, 6, because the parties represented by them were treated as non-residents, 29, because they were duplications, 407, because the abbreviated titles, "Mr.” and "Mrs.”, were prefixed to the names, and 3,186, because the signatures were not in the handwriting of the signers. These eliminations, if sustained, would reduce the number to 1,184. Rejection of the contention that the statute must be deemed to have been partially repealed or modified, makes it apparent that the 1,319 names cannot be rejected upon the — 111 — ground of non-registration. The number of signatures required is determined under the statute, by the scheme or plan prescribed by it, not by the actual number of voters. Hence, it is obvious, that the county court, in its determination of the number of signatures required, had no right to consider the registration list, nor to test or limit the right of petition by it. The terms “legal voters,” used in the statute include all who have the right to be registered to vote. Registration does not determine the status of the citizen, respecting the right of franchise. It is a mere limitation on the exercise of such right vested in certain portions of the citizens of the state by the cohstitution. A legal voter may be barred of the right to vote at a particular election, because of lack of registration, but he is a legal voter, nevertheless, because, by compliance with certain conditions, he may vote in any election. Exclusion from participation in a given election by reason of non-registration, no more affects the status of a legal voter, within the meaning of the law, than exclusion therefrom by sickness, absence or other accidents. Registration does not confer the right. It merely regulates the exercise thereof. Non-registration does not destroy the status conferred by the constitution and statutes. Restoration of the 1,319 names struck off, for non-registration, decreases the number eliminated to 3,633 which, deducted from the total number on the petition, leaves 2,503, or 769 more than are necessary. Though it seems unnecessary to carry the inquiry as to the number of signatures further, it is proper to say there was no justification for the rejection of the 3,186 names, because they were not in the handwriting of the petitioners. In the absence of any legal regulation forbidding it, any person whose name is to be signed to an instrument may cause his signature to be affixed by his agent, or, if he is an officer, by his deputy. Code, ch. 13, sec. 16. This statute seems to be merely declaratory of the common law. Gardner v. Gardner, 5 Cush. (Mass.) 483; Wood, St. Frauds, sec. 16; Brown, St. Frauds, secs. 10, 12. The testimony of about a dozen of the sixty different persons who circulated the petition and obtained signatures thereto, was — 112 — taken in an effort to prove defectiveness in the signatures and other grounds of rejection. From this testimony, it appears that, in many instances, the husband signed his own name and those of his wife and children having or claiming the right to vote and to be of voting age, in the presence of the wife and children, or that the wife or a child signed the names of all the voters of the family, in their presence. In other instances, the persons circulating the petition signed the names in the presence of the voters and by their direction. In some cases, names of persons were put on, in their absence, the wife signing the'husband’s name, he being away at work, or a mother or father signing the name of a son or daughter, for the same reason. In all those instances in which the name of a voter was put on by' another in his presence, the signing was manifestly sufficient and valid. It is unnecessary to determine whether as much can be predicated of names put on in the absence of the signers; for it is perfectly safe to say that at least one-half of the 3,186 signatures rejected upon the ground of identity of handwriting, were validly affixed. If a statute requires the signature to be in the handwriting of the person signing, or, if it is required for a purpose manifestly intended to be accomplished by 'the use of the handwriting of the person signing, such as identification of a paper, the signing cannot be delegated. Kirkpatrick v. Deegans, 53 W. Va., 275. The signatures to the petition now under consideration are not required for identification of the paper, nor for any other function that cannot be accommo-plished otherwise than by the use of the handwriting of the petitioner. The sole purpose of the signatures is to show that the requisite number of voters desire submission of the question of relocation of the county seat. The signature, therefore, performs only its ordinary function, expression of the intention, will and desire of the signer. Nor can the striking off of 407 names because titles were prefixed, be justified. In law, a name is only a means of identification of a person, and a descriptive prefix or title clearly does not vitiate it. As the name is only matter of identification, a married woman may use in her signature, as — 113 — her Christian name, some or all of her maiden name, or describe herself by the rise of her husband’s name with the prefix Mistress. The liberality of the common law rule on this subject is indicated by the following text well sustained by authority; “Where a signature is by mark, the mark itself made by the person whose signature it is to become, and not the name written by another near it, is the signature. And the validity of the signature is not affected by the fact that the name is written by the other party to the contract. Nor is it affected, in the absence of a statute-requiring a name to accompany the mark, by the fact that no name accompanies it; nor by the fact that a wrong name is written near the mark; nor by the fact that words indicating that it is intended as a mark are omitted.” 36 Cyc. 453, 454. The effort to disprove, eligibility of the signers resulted in egregious failure. About sixty different persons circulated the petition, in their respective neighborhoods, and, in that way, obtained the signatures. The affidavit of each one of these persons, to the effect that he verily believes each and all of the persons whose names are signed to it are legal voters of the county, is appended to the petition he circulated. Each one of these affidavits was made in strict conformity with the statute, and by a person who, presumptively, was qualified to make it. The petitioners were his neighbors. Though no one of them is broad enough to include all the names upon all the copies of the petition that were circulated, the several copies circulated and verified by different people may be treated as' constituting one petition. They are parts of one whole, and each part having been verified, the whole was verified. If the affidavit made by J. G. Lambert, to include all the names on all of the petitions, can be regarded as having been successfully impeached, by his admission of lack of personal knowledge of the status of a great many of the signers, respecting* their right to vote, the other affidavits made to separate parts of the petition, or to the more than sixty petitions, if they must be treated as separate, amply suffice. No attack is made on any of them except one, and the petition to which it is appended represents exactly fifty names. The statute authorizes the filing — 114 — of more than one petition for submission of the same question. It mentions but one affidavit, but, immediately afterward, it speaks of the filing of the “petition or petitions.” It would be extremely technical, as well as unreasonable, to hold that, in addition to an affidavit verifying each one of the many petitions, there must be one single affidavit covering all of them. It would be unreasonable, because there might be instances in which no one individual could conveniently make such an affidavit. No intent to burden the petitioners unduly and to no purpose can be justly imputed to the Legislature. The petitions so verified made out a prima facie case. Mann v. County Court, 58 W. Va. 651. To escape its effect, it was incumbent upon the remonstrants to overthrow it, and they have not done so. From the conclusions already stated, it is manifest that there is neither uncertainty nor fraud in the petitions. There is no authority in the court 'to inquire as to the motives that induced the signing thereof. In laying down the basis of the petition, the statute necessarily limits the jurisdiction of the court, upon the inquiry as to its sufficiency, to the ascertainment of the requisite number of legal voters. If the Legislature had intended to preclude the right of petition on the ground of bad motives, it would have said so. The adverse results of a previous election held on the same question and the subsequent destruction of the court house by fire, do, not forbid the filing of a new petition. Such ad: vantage as the destruction of the court house may give the proponents of the new election, or as they may suppose it will give them, does not affect their status in the least.' If the effort to obtain that advantage could be deemed to be unfair or unneighborly, the county court cannot refuse the prayer of the petition on that ground. The petition being amply sufficient and objection to the calling of the election having* been founded upon nothing but alleged insufficiency thereof, the peremptory writ moved for will be awarded. Peremptory writ awarded.