State ex rel. Plymale v. Garner

Berry, Judge: This is an original proceeding in mandamus instituted in this Court by the petitioners, J. Fred Plymale, E. E. Sturm, Harry Yoho, A. M. Van Hoose, Howard L. Bailey and Oliver W. Spurlock, citizens, residents, qualified voters and electors of the City of Huntington, Cabell County, West Virginia, against the respondents, George L. Garner, Bert H. Early, Bob E. Myers, A. E. Harris, John J. Durkin, W. R. Moser and Harry S. Damron, members of the Municipal Council of the City of Huntington, and Florence Williams, City Clerk of said City. Upon application to this Court, a rule in mandamus was granted requiring the respondents to show cause why a writ of mandamus should not be awarded against them requiring them to submit to the voters of the City of Huntington at the general election to be held on November 6, 1962, the question: “Shall a charter be framed by representatives of the voters?” The rule was returnable September — 295 — 5, 1962, but upon request of the parties a continuance was granted until September 11, 1962, and the case was submitted to this Court for decision on arguments and briefs. By order entered September 25, 1962, this Court held that the petitioners herein were entitled to a writ of mandamus as prayed for and awarded such writ. This opinion has been prepared and filed for the purpose of stating the reasons for the Court’s awarding of the writ as prayed for by the petitioners. A joint and several demurrer and an answer of all the respondents except Bert H. Early were filed to the petition in mandamus and the separate demurrer and the answer of Bert H. Early, with exhibits filed in addition thereto, were filed by Early to the said petition. A stipulation of facts was filed and made a part of the record. On July 9, 1962, the petitioners in this proceeding filed a petition with the Council of the City of Huntington, the respondents herein, purporting to bear the signatures of 15,572 voters of said city, requesting that the council provide by ordinance for submission to the voters at the general election to be held on November 6, 1962, the question: “Shall a charter be framed by representatives of the voters?”, under the provisions of Code, 8A-2-2, as amended. On June 25, 1962, the Council of the City of Huntington adopted two ordinances, the first establishing a fee for refuse removal and the second a fee for fire protection, in accordance with the provisions of Code, 8-4-20, as amended. These fees were to become effective July 1, 1962, and were adopted for the purpose of producing over one-half million dollars in additional revenue for the city. On July 7, 1962, two petitions were filed with the Clerk of the City of Huntington protesting each of the fee ordinances under the provisions of Code, 8-4-20, as amended. Most of the relators in this present proceeding participated in and obtained the petitions protesting the ordinances for the refuse removal and fire protection fees. Under the provisions of Code, 8-4-20, as amended, which was rewritten by the legislature after Chapter 8A was — 296 — placed in the code, if thirty percent of the registered voters of the city, by written petition duly filed by them, protest against such ordinances they shall not become effective until they shall be ratified by a majority of the votes cast at a municipal election. The petition protesting the fire fee ordinance purported to contain the names of 17,842 voters and the petition protesting the refuse removal ordinance purported to contain the signatures of 18,524 voters. The City of Huntington has 46,159 registered voters. Upon the receipt of the three petitions mentioned above they were examined by members of the City Council and it appeared that a number of the petitioners had signed the same petition more than once; that signatures of different petitioners had been signed by one person; that many of the petitioners gave addresses which were outside the City of Huntington and, in several instances, even in adjoining states; and that some of the petitioners were minors or not qualified voters. The council thereupon directed the clerk to examine the petitions to determine their sufficiency. A systematic procedure was initiated by the council involving the identification of each petitioner and the indexing in alphabetical order of each name on each petition. After identification and indexing the signatures on each petition were to be checked for duplications and, through the use of voter registration books, the validity of the signatures, current voter registration of the signers and other voter qualifications were to be determined. The clerk adopted the procedure outlined above and on July 10,1962, at the direction of the council began a process of checking the petitions protesting the refuse and fire fee ordinances because they were filed prior to the charter election petition. Four regular employees of the city were assigned full-time to this task and five additional full-time clerical workers were obtained for such work. At the time the stipulation of facts was filed in this case, which was September 11, 1962, about 4500 names had been checked on each of the petitions pertaining to the refuse and fire protection fees and about 1500 had been found or declared invalid on each. Only 458 signatures had been examined on — 297 — the charter petition at that time, 112 of which were declared valid, 129 of which were declared invalid, and 217 of which had not been thoroughly checked for validity. No formal challenge to the petition in question in this proceeding was made and neither the clerk nor the council had declared the petition valid or invalid at the time of the hearing in this Court, and the council had not taken any steps to adopt an ordinance for an election on the question: “Shall a charter be framed by representatives of the voters?” As heretofore stated the next general election will be held in the City of Huntington on November 6, 1962. No other general election will be held until November 5, 1964, and the next regular municipal election will be held in the City of Huntington on the first Tuesday in June, 1965. Huntington is a Class I City. This entire proceeding turns on the provisions of Code, 8A-2-2, as amended, which reads as follows: “The governing body of a city may provide by ordinance for the submission to the voters of the city at any general election or at a regular or a special municipal election of the question, ‘Shall a charter be framed by representatives of the voters?’: Provided, however, that the governing body of a city may not, without the petition of the voters, as hereinafter set forth, submit the same question to the voters more than once in any two year period after the effective date of this act. “The governing body of a city shall, upon petition bearing the signatures, written in their own handwriting, of voters of the city equal in number to fifteen per centum, if a class I or class II city, and ten per centum, if a class III city, of the total registration of voters therein, or if there be no registration of voters then a like per centum of duly qualified voters for the last preceding general election, provide by ordinance for the submission to the voters of the city at any general election or at a regular municipal election of the question, ‘Shall a charter be framed by representatives of the voters?’ “The governing body of a city shall provide by ordinance for a special election on said question if — 298 — a petition bearing the signatures in their own handwriting of voters of the city equal in number to fifteen per centum, if a class I or class II city, and ten per centum if a class III city, of the total registration of voters therein, or if there be no registration of voters then a like per centum of duly qualified voters for the last preceding general election, expressly requesting that a special election be called for the purpose, be presented to the governing body more than one hundred twenty days prior to the date of the next regular municipal election. “Any special election under this section shall be held not less than thirty nor more than sixty days after the ordinance shall have been adopted, or the petition shall have been presented to the governing body.” This statute provides for charters of municipalities and is designed to effectuate the Home Rule Amendment to the Constitution of West Virginia, Article VI, Section 39 (a), adopted by the voters of this state in 1936, which reads as follows: “No local or special law shall hereafter be passed incorporating cities, towns or villages, or amending their charters. The legislature shall provide by general laws for the incorporation and government of cities, towns and villages and shall classify such municipal corporations, upon the basis of population, into not less than two nor more than five classes. Such general laws shall restrict the powers of such cities, towns and villages to borrow money and contract debts, and shall limit the rate of taxes for municipal purposes, in accordance with section one, article ten of the Constitution of the State of West Virginia. Under such general laws, the electors of each municipal corporation, wherein the population exceeds two thousand, shall have power and authority to frame, adopt and amend the charter of such corporation, or to amend an existing charter thereof, and through its legally constituted authority, may pass all laws and ordinances relating' to its municipal affairs: Provided, that any such charter or amendment thereto, and any such law or ordinance so adopted, shall be invalid and void if inconsistent or in conflict with this Constitution or the general laws of the State then in effect, or thereafter, from time to time enacted.” — 299 — The statute, Code, 8A-2-2, above quoted, was enacted by the legislature in 1937 and amended by the legislature in 1947. The amendment in 1947 added to the second paragraph the submission of such question to the voters of any municipality governed by a Home Rule Charter “at any general election”. The original statute only provided for such questions to be submitted to the voters, upon petition thereof, at the next regular municipal election or at a special election if so requested. It is the contention of the respondents that under the statute in question they have the right to select the election at which the question shall be submitted to the voters of the city because the second paragraph of the statute provides that when a proper petition is filed with the council said council shall provide by ordinance for the submission to the voters of the city at any general election or at a regular municipal election such question. This position is not well taken because under this interpretation an election could be postponed by the council for a period of many years. If it had the right to select any general election or a special election it could select one at any time it saw fit. In the case at bar if such election on the question presented by the petition is not held at the next general election, on November 6, 1962, which will be about four months from the-time the petition was filed, a period of two years would elapse before another general election would be held and a period of almost three years would elapse before another municipal election would be held. Under any reasonable interpretation this would be too long a delay to submit such a question if a proper petition is submitted to the council for such question to be voted upon by the voters of the city. Before the legislature rewrote this statute in 1947 it only provided for such question to be submitted to the voters at the next regular municipal election. When it was rewritten the legislature inserted the words “at any general election” before “or at a regular municipal election”. This, by necessity, was put in the place of “at the next regular municipal election”. The only logical interpretation of the amended statute would be that the election should be held at any general election or regular municipal election occurring next after the peti — 300 — tion had been filed with the council if there was a reasonable interval between the filing of the petition and the election. This interpretation is clearly supported by the first paragraph of the statute, which provides for the governing body to submit such question by an ordinance, but it prohibits the governing body from submitting the same question to the voters more than once in any two-year period without a petition of the voters. It is true that a valid petition bearing the signatures of voters in their own handwriting equal to fifteen percent of the total registration of voters of the city, or 6,923 voters in the case at bar, must be filed with the city council before any such election can be held and the city council or the clerk has the right and duty to check such petition to determine its sufficiency. However, the determination of the validity of the petition must be made within the prescribed time and if no specific time is set out in the statute then, in any event, within a reasonable time. McQuillin on Municipal Corporations, 3rd Ed., Vol. 5, § 16.65; Hindman v. Boyd, 42 Wash. 17, 84 P. 609. Under the facts and circumstances in the case at bar the respondents have not acted within a reasonable time to determine the validity of the petition. In fact, they have not acted at all in connection with this matter because their answer, which was filed about two months after the filing of the petition with the council, neither affirms nor denies its validity but contends that they have the right to check each name systematically regardless of how long it would take to do so. The statute in question, Code, 8A-2-2, as amended, contains language to indicate what a reasonable time would be in the case at bar. The third paragraph thereof provides for a special election if a valid petition so requests and is presented to the council more than one hundred twenty days prior to the next regular municipal election. The last paragraph of said statute requires that such special election be held not less than thirty nor more than sixty days after the petition has been presented to the council. The time reference after the ordinance has been adopted refers to the first paragraph of — 301 — the statute wherein the governing body itself provides by ordinance for submission of such question to the voters of the city. Where the council either refuses to adopt the ordinance or submit it to a vote in a somewhat similar situation dealing with initiative and referendum questions mandamus will lie to compel the council to submit the proposed ordinance to a vote at a general election. Bachmann v. Goodwin, 121 W. Va. 303, 3 S. E. 2d 532. It has been held that an ex parte proceeding by a city clerk conducted to determine the validity of a petition where as a result said petition was declared invalid by the clerk because some of the signatures were not genuine did not authorize the rejection of the entire petition by the clerk. State ex rel. Noyes v. Lane, 89 W. Va. 744, 110 S. E. 180. This Court has also held that insufficient funds of a city to hold a special election in such cases is no excuse for not holding the election. State ex rel. Peterkin v. City Council of City of Parkersburg, 95 W. Va. 502, 121 S. E. 489. In any event when the proceeding in this case was instituted in this Court it brought all the parties before it with the issues to be determined by the Court and not the parties. In other words, the question of the validity of the petition should have been raised and settled in this proceeding, but the respondents took the position that they could still ascertain the validity or invalidity of the petition, take as long as they desired, and hold the election whenever they wanted to if the petition was found to be valid. Evidence could have been taken on the validity of the petition when this proceeding was instituted in this Court if fhe question of validity had been properly raised here. Hindman v. Boyd, 42 Wash. 17, 84 P. 609; State ex rel. Kahle v. Rupert (Ohio), 122 N. E. 39. However, this procedure was waived by the respondents in their answer wherein they neither admitted nor denied the validity of the petition and left the question unsettled in the stipulation of facts filed with the Court. The petition in question then was presumed to be valid and the writ was issued for the holding of the election on the question with regard to the charter. McQuillin on Municipal Corporations, 3rd Ed., Vol. 5, Signatures, § 16.61; Woodward v. Barbur (Ore.), 116 P. 101; — 302 — State ex rel. Kemper v. Carter, 257 Mo. 52, 165 S. W. 773; In re Initiative Petition No. 260, State Question No. 377, Kirk v. Anderson (Okla.), 298 P. 2d 753. Those who are charged with the duty of passing or acting on the validity of the signatures on a petition such as the one at bar are subject to judicial control. 28 Am. Jur., Initiative, Referendum and Recall, § 37. Mandamus is a proper remedy to require elections in such cases. 28 Am. Jur., Initiative, Referendum and Recall, § 40; State ex rel. Wells v. City of Charleston, 92 W. Va. 61, 114 S. E. 382; Blotten v. Farrell (Calif.), 270 P. 2d 481. For the reasons stated herein the writ of mandamus prayed for by the petitioners was granted. Writ granted.