State ex rel. Hager v. Oakley

Beehy, Judge: This is an original proceeding in prohibition instituted in this Court on October 13, 1970, in which the petitioner, Okey L. Hager, sought a writ to prohibit the respondent, Harvey Oakley, Judge of the Circuit Court of Logan County, West Virginia, from proceeding further in an election contest case in which an appeal had been granted by the respondent on September 20, 1970, without any final decision or order having been entered by the County Court of Logan County which had heard the election contest case. The petitioner moved to dismiss the appeal as improvidently awarded, which motion was overruled. A rule was issued on October 13, 1970, returnable October 20, 1970, at which time the case was submitted for decision upon arguments and briefs of the respective parties. On October 20, 1970, an order was entered by the Court granting the writ as prayed for and this opinion is now prepared giving the reasons for the Court’s decision. The petitioner was declared the duly nominated candidate of the Democratic party for a six year term for the office of [530] Commissioner of the County Court of Logan County, West Virginia, by an official declaration of the results of said election promulgated by the County Court of Logan County on June 17, 1970, at the conclusion of a recount of the votes cast for said office. The other candidate for said office, Neal W. Scaggs, who had not prevailed at the conclusion of the recount, served the petitioner with a timely notice of contest, and the petitioner served a timely counter-notice of contest upon Scaggs. The County Court of Logan County promptly started the election contest and heard evidence pertaining to the contest for approximately six weeks and concluded the hearing on August 25, 1970, at which time the County Court of Logan County announced that it would decide the election contest case as soon as it had received and studied the transcript of the evidence. The complete transcript of evidence taken during the hearing of the election contest case was not received by the County Court until September 15, 1970, at which time it went into executive session to study the transcript of evidence and continued to do so until midnight September 17, 1970, at which time it announced that it had not completed its study of the transcript and no decision or final order was made or entered by the County Court of Logan County regarding the election contest case. On September 20, 1970, Neal W. Scaggs, the contestant in the election contest case, appeared before the Circuit Court of Logan County and applied for and obtained an “appeal” on the theory that the County Court of Logan County, by virtue of having failed to decide the election contest case had in effect affirmed the County Court’s declaration of election at the conclusion of the recount. The petitioner in this proceeding, Okey L. Hager, who is the contestee in the election contest, was a member and President of the County Court of Logan County at the time the election contest case was heard, and along with Leroy Counts, another member of said Court, presided during the election contest, the third member of the County Court, Junior Lambert, being absent by reason of illness. [531] The sole issue in this proceeding is whether the Circuit Court of Logan County has jurisdiction to allow an appeal from the County Court of Logan County in an election contest case where no decision has been made and no final order entered in connection with the election contest case. It is conceded by the parties that the County Court lost jurisdiction of the election contest proceeding at midnight on September 17, 1970, inasmuch as three months had passed since the last declaration of the results of the election between Scaggs and Hager which was officially made on June 17, 1970. This was by virtue of the provisions of Code, 3-7-7, as amended, wherein it is provided that the hearing in any election contest case may be continued from time to time, but not beyond three months from the date of the declaration of the result of the election. It is the duty of the County Court in such election contest cases to declare the true results of such election and to have said results entered on the records of the Court within the three months period. Code, 3-7-7, as amended. It is further provided in Code, 3-7-7, as amended that: “Either the contestant or contestee shall have the right of appeal to the circuit court of the county from the final order or decision of the county court in such proceeding, * * ‡ » Contested election cases are heard by the County Court for all county and district officers including the members of the county court. Code, 3-7-6, as amended. The circuit court can not hear an election contest case in the first instance. Luther v. McClaren, 87 W.Va. 133, 104 S.E. 294. Election contest cases are governed entirely by the statutes. There is no common law with regard to such contests. Meisel v. O’Brien, 142 W.Va. 74, 93 S.E.2d 481. Not only does the statute specifically require a final order with regard to the decision in an election contest case to be entered of record declaring the true result of such election, Code, 3-7-7, as amended, but the decided cases clearly hold that an appellate decision cannot be made on a nonexistent adjudication. Chrislip et al. v. Teter et al., 43 W.Va. 356, 27 S.E. 288; Coltrane v. Gill et al., 99 W.Va. 447, 129 S.E. 469. [532] An opinion or conclusion of the court does not make the case appealable. A judgment of the court must be actually entered. 1B, M.J., Appeal and Error, § 62; Coltrane v. Gill et al., supra. If a court fails to take action and enter a final order deciding a case no appeal can be taken in such case, because there must be a decision entered of record in the court below before an appellate court has jurisdiction on appeal. Chrislip et al. v. Teter et al., supra; Coltrane v. Gill et al., supra. The law governing contested election cases is now clear and is not questioned here that upon the expiration of the three months period from the declaration of the final result of an election a county court is without jurisdiction to proceed to determine an election contest which had been before it. Stafford v. Mingo County Court, 58 W.Va. 88, 51 S.E. 2; State ex rel. Smoleski v. The County Court of Hancock County, 153 W.Va. 21, 166 S.E.2d 777. If a final judgment is rendered by the county court deciding an election contest case after the three months period referred to herein, it is void because such Court has no jurisdiction to decide such case after the three months period has elapsed. See Nelson v. Nash, 126 W.Va. 568, 29 S.E.2d 253; Qualls v. Bailey, 152 W.Va. 385, 164 S.E.2d 421. Even if the parties agree to the entry of an order deciding an election contest case after the three months period has elapsed, it is void and of no effect, because jurisdiction can not be conferred upon the county court by agreement of the parties. Nelson v. Nash, supra. It is true that it is the clear duty of the county court to decide an election contest case at the conclusion of the hearing and before the expiration of three months. Code, 3-7-7, as amended. If this duty is not performed the county court can be compelled to act in deciding an election contest case before it loses jurisdiction but not as to how to decide such case. See State ex rel. Smoleski v. The County Court of Hancock County, supra; State ex rel. Cackowska v. Knapp, Judge, 147 W.Va. 699, 130 S.E.2d 204. [533] Inasmuch as the election contest involved in the case at bar was not finally determined with regard to a candidate for nomination to the County Court of Logan County within the time prescribed after the primary election and before the general election, such contest should stand dismissed and Okey L. Hager, shown by the face of the returns of the primary election to be nominated for the office of Commissioner of the County Court of Logan County was entitled to have his name placed upon the regular ballot for the general election to be held November 3, 1970. Code, 3-5-20, as amended. For the reasons stated herein, the writ was granted. Writ granted.