SENIOR STATUS JUSTICE McHUGH delivered the Opinion of the Court.
JUSTICE ALBRIGHT not participating.
SENIOR STATUS JUSTICE McHUGH sitting by temporary assignment.
4. A county court, which by reason of the failure of the contestant to give
notice to the contestee in an election contest within ten days after the result of the election
is declared is without jurisdiction to hear and determine such contest, will be restrained from
entertaining, hearing and determining such contest by writ of prohibition from this Court.
Syl. Pt. 5, State ex rel. Staley v. Wayne County Court, 137 W.Va. 431, 73 S.E.2d 827 (1952).
5. The provision of West Virginia Code § 3-7-6 (2002) (Repl. Vol. 2006) that requires a contestant of a municipal election to give notice to the contestee within ten days after the results of the election have been certified is mandatory and absent strict compliance with that notice provision, a governing municipal body lacks the necessary jurisdiction to hear and determine an election contest.
6. A governing municipal body that lacks jurisdiction to hear an election contest based on the failure of the contestant to comply with the notice provision of West Virginia Code § 3-7-6 (2002) (Repl. Vol. 2006) will be prevented from hearing and determining such election contest by writ of prohibition.
McHugh, Senior Status Justice: (See footnote 1)
Sam Cole appeals from the November 21, 2007, order entered by the Circuit Court of Putnam County through which a writ of prohibition was granted upon the petition of Appellee Scott Edwards to prevent the City Council of Hurricane (City Council) from holding a hearing on an election contest petition filed by Mr. Cole. Appellant seeks a ruling from this Court that the circuit court's decision to issue the writ of prohibition was in error and an additional determination that the trial court's failure to consolidate the prohibition proceeding with the election contest action he filed was erroneous. Upon our review of all the arguments presented, we conclude that the trial court committed no error and, accordingly, affirm the lower court's decision to issue a writ of prohibition.
A person intending to contest the election of another to
any county or district office, . . . shall, within ten days after the
result of the election is certified, give the contestee notice in
writing of such intention and a list of the votes he will dispute,
with the objections to each, and of the votes rejected for which
he will contend. If the contestant objects to the legality of the
election or the qualification of the person returned as elected,
the notice shall set forth the facts on which such objection is
founded. . . .
W.Va. Code § 3-7-6. These requirements are expressly made applicable to municipal elections: The provisions of this section apply to all elections, including municipal elections, except that the governing body of the municipality is the judge of any contest of a municipal election. Id.
Mr. Edwards predicated his entitlement to a writ of prohibition on Mr. Cole's failure to comply with the notice requirements set forth in West Virginia Code § 3-7-6. In his verified petition, Mr. Edwards recounts the chronology of events that transpired after the Hurricane municipal election on June 12, 2007. He avers that the first attempt by Mr. Cole to comply with the notice requirements of the election contest statute occurred eighty-five days after the petitioner [Mr. Edwards] was certified by the governing body of the City of Hurricane as the winner of the June 12, 2007, municipal election for the office of mayor. At that time, Mr. Cole mailed to the defendant, Linda Gibson [Recorder for City of Hurricane] a document captioned 'Petition to Contest Election.'
As Mr. Edwards made clear both in his verified petition and in arguments before Judge Eagloski, not only did Mr. Cole fail to comply with the ten-day notice provision mandated under West Virginia Code § 3-7-6, but he never at any time gave Mr. Edwards written notice as required by statute. (See footnote 8) Mr. Cole's only attempt to comply with the statutory notice requirement occurred when he sent notice to the Hurricane City Recorder of his intent to contest the election on September 19, 2007. Under the provisions of the election contest statute, that notice was more than seventy-five days overdue. Consequently, Mr. Edwards argued before Judge Eagloski that the City of Hurricane lacked jurisdiction to hear or determine the Petition to Contest Election that Mr. Cole transmitted to Ms. Gibson in September 2007.
The issue of jurisdiction with regard to contests of municipal elections is well- settled. In syllabus point one of Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880 (1949), we held that [t]he jurisdiction of the common council of a municipality incorporated under Article 2, Chapter 8, Code, to hear and decide a contested election involving the selection of municipal officers is original and exclusive. Accord In Re Election Contest Between Moore and Powell, 200 W.Va. 335, 336, 489 S.E.2d 492, 493 (1997).
In State ex rel. Staley v. Wayne County Court, 137 W.Va. 431, 73 S.E.2d 827 (1952), we addressed the failure to comply with the notice requirements of the election contest statute. (See footnote 9) Because an election contest is purely a statutory proceeding, failure to comply with the mandated notice period operates as a bar to the subject matter jurisdiction necessary to hear such contest. Id. at 438, 73 S.E.2d at 831-32. Consequently, even an arguably de minimus two-day delay in serving the prescribed notice robbed the county court of jurisdiction to consider an election contest, as we held in syllabus point four of Staley:
The provision of Section 2, Article 9, Chapter 3, Code,
1931, that the contestant in an election contest involving a
county or district office shall give notice to the contestee within
ten days after the result of the election is declared, is mandatory
and must be strictly complied with; and unless such notice is
given within that time a county court is without jurisdiction to
entertain, hear and determine such contest.
137 W.Va. at 432, 73 S.E.2d at 828, syl. pt. 4. We further ruled that
[a] county court, which by reason of the failure of the contestant to give notice to the contestee in an election contest
within ten days after the result of the election is declared is without jurisdiction to hear and determine such contest, will be restrained from entertaining, hearing and determining such contest by writ of prohibition from this Court.
137 W.Va. at 432, 73 S.E.2d at 828, syl. pt. 5.
In his attempt to skirt the mandatory notice requirements, Mr. Cole argues that Mr. Edwards had constructive notice of the election contest based upon his attendance at the September 13, 2007, hearing before Judge Spaulding. Given our longstanding recognition that the ten-day notice period provided in the election contest statute is jurisdictional in nature, combined with the absence of any case law suggesting that constructive notice is sufficient to meet those jurisdictional requirements, we find no merit to this argument. (See footnote 10) See W.Va. Code § 3-7-6; Staley, 137 W.Va. at 438, 73 S.E.2d at 831-32.
Seeking to circumscribe the notice requirements of West Virginia Code § 3-7- 6, Mr. Cole argues that [s]tatutes providing for election contests should be liberally construed, in order that the will of the people in the matter of choosing their public officers may not be defeated by merely technical objections. Mullens v. Dunman, 80 W.Va. 586, 592-93, 92 S.E. 797, 800 (1917). This argument is of no avail to Mr. Cole because, unlike the situation in Mullens and the only other case he cites for this proposition, Palumbo v. The County Court of Kanawha County, 151 W.Va. 61, 150 S.E.2d 887 (1966), overruled in part on other grounds, Qualls v. Bailey, 152 W.Va. 385, 164 S.E.2d 421 (1968), the defects in his case are jurisdictional in nature and not simply a matter of technical objection. Mullens, 80 W.Va. at 593, 92 S.E. at 800. At issue in Mullens was the contestant's omission from the notice of the number of votes cast for each of the respective candidates. The contestees argued that without these numbers there was no indication that the election results would have been altered if the challenged votes were thrown out. 80 W.Va. at 591-92, 92 S.E. at 799. Upon examination, this Court determined that while it might have been preferable to have the number of votes that each contestant and contestee received specified within the notice, that information was not indispensable. 80 W.Va. at 592, 92 S.E. at 799. Based on the inclusion of the specific eleven votes that were being challenged and particularized grounds as to the basis for challenging each vote, the notice was determined to be sufficient. The Court reasoned that the information provided in the notice, if proved true at the election contest proceedings, certainly ought to have produced different results regarding the outcome of the election. 80 W.Va. at 592, 92 S.E. at 800.
In Palumbo, the county court had refused to set the election contest matter for hearing in the July term of court which was in progress at the time the notice of contest was timely filed. Under its interpretation of West Virginia Code § 3-7-7 (1963) (Repl. Vol. 2006), (See footnote 11) the county court maintained that the contest could not be heard until the term that started after the notice of contest was presented to the court. Determining that all of the cases decided by this Court are uniform in holding that the hearing or trial in an election contest should be held at the earliest possible time, we interpreted the applicable statutory language (See footnote 12) to require that the election contest proceeding be held during the term in which the cause was filed rather than in the succeeding term of court. 151 W.Va. at 70-73, 150 S.E.2d at 892-94.
What separates Mr. Cole from the candidates in those few cases in which we have construed the election contest statutes in a liberal manner is his failure to comply with the most fundamental requirement: service of the notice of contest on Mr. Edwards within the ten-day period prescribed by statute. See W.Va. Code § 3-7-6. As we made clear in Staley, the consequence of this procedural defect is the abrogation of jurisdiction to address an election contest. See 137 W.Va. at 438, 73 S.E.2d at 831-32. Moreover, by suggesting that we ignore his failure to timely serve Mr. Edwards with the requisite notice, Mr. Cole completely overlooks the public policy that underlies election contest statutes. As we recognized in Staley, the Legislature has made it clear that an election result should be determined and declared with dispatch. Staley, 137 W.Va. at 439, 73 S.E.2d at 832.
Extending the reasoning we previously employed in Staley with regard to election contests involving county and district wide elections, we hold that the provision of West Virginia Code § 3-7-6 that requires a contestant of a municipal election to give notice to the contestee within ten days after the results of the election have been certified is mandatory and absent strict compliance with those notice provisions, a governing municipal body lacks the necessary jurisdiction to hear and determine an election contest. See Syl. Pt. 4, Staley, 137 W.Va. at 432, 73 S.E.2d at 828. Consequently, we conclude that Mr. Cole's failure to comply with the notice requirements of West Virginia Code § 3-7-6 was fatal to his attempt to challenge the results from the June 12, 2007, City of Hurricane mayoral election. (See footnote 13)
Consistent with our ruling in Staley, we hold that a governing municipal body that lacks jurisdiction to hear an election contest based on the failure of the contestant to comply with the notice provision of West Virginia Code § 3-7-6 will be prevented from hearing and determining an election contest by writ of prohibition. See Syl. Pt. 5, Staley, 137 W.Va. at 432, 73 S.E.2d at 828. Given the City Council's lack of jurisdiction to entertain Mr. Cole's election contest due to his failure to comply with the statutorily-required notice provisions, the trial court's decision to issue a writ of prohibition to prevent the City Council from holding a hearing on the election contest was not in error. See W.Va. Code § 3-7-6.
Based on the foregoing, the decision of the Circuit Court of Putnam County to issue a writ of prohibition is affirmed.