67 W. Va. 679 | W. Va. | 1910
Lead Opinion
The executive Committee of the Republican Party in Mason County issued calls, on the 19th day of May, 1910, for primary elections, one for selection of delegates to represent the Republicans of that county in the Republican Convention of the Fifth Congressional District; the other for" the nomination of candidates for the House of Delegates and county officers, the selection of delegates to a senatorial convention, and the election of members of a county central republican committee. One of these calls caused dissatisfaction and dissension within the party, and the result was that the central committee met, and reorganized the county executive committee, removing all members, except one, and appointed new men in their places. The central committee, when full, consists of ten members, one from each magisterial district; but John S'. Brannon, a member of that committee, being dead, five members claiming right as a majority of nine, appointed Robt. 0. Boggess in Brannon’s pilace as a member of the central committee, making the eom-
This contest went also before the Bepublican State Committee, and was heard by it, and its. decision was that the new county executive committee was the true one, authorized to act as it did. The reorganized executive committee called a county mass convention to send delegates to the republican convention for the nomination of a candidate for the State Senate for the fourth district, and delegates were by it appointed. A contest was made between these delegates and those named at the primary election called by the old committee, and this con
Under the call of the reorganized executive committee for the county primary election, a new central committee was elected, and that committee elected a new executive committee, making Chas. W. Juhling chairman thereof. Under the call of the old committee for a like primary election, another alleged new central committee was elected, which elected another alleged executive committee, making B. E. Mitchell chairman thereof.
Though not important under the principles controlling our decision, more votes were polled in each of the two primaries held under the calls of the reorganized committee than in the primaries held under the calls of the old committee.
Under Code.(1906) eh. 3, section 32, Juhling designated, in writing, to Charles Buxton, clerk of the circuit court of Mason county, A. L. Boggess for appointment b3r said clerk as a ballot commissioner to represent the republican party on the board of ballot commissioners, and Mitchell designated F. G-. Mus-grave for ballot commissioner. Juhling and Boggess demanded of Buxton that Boggess be appointed; but Buxton refused to recognize Juhling as chairman of the executive committee, authorized-to designate a ballot commissioner, and, on the contrary, recognized Mitchell as the lawful chairman, and under his designation appointed Musgrave. Boggess asks from this Court a writ of mandamus to compel Buxton as clerk to appoint him as such ballot commissioner.
This case has been very ably and elaborately argued, and, for this reason, as well as for the principles involved, requires a full statement of the reasons for our decision.
The first question arises from the contention of defendant’s counsel that this Court has no jurisdiction to entertain this case. This contention rests on the fact that, though the constitution adopted in 1872 gives the Supreme Court original jurisdiction “in cases of mandamus”, it must be the wirt as it existed then, the writ having only the scope and remedial operation which it then had, applicable only to such subject
Is the act so unconstitutional ? We say that it is not. “Remedies and remedial process are always subject to the, control of the legislature.” Black’s Cons. Law 497. In Bronson v. Kinzie, 1 How. (U. S.) 311, 315, 316 the Court says: “Undoubtedly, a state may regulate at pleasure the modes of proceeding in its courts in relation to past contracts as well as future. * * * * * Whatever belongs merely to the remedy may be altered according to the will of the state, provided the alteration does not impair the obligation of the contract. But if that effect is produced, it is immaterial whether it is done by acting on the remedy or directly on the contract itself. In either case it is prohibited by the Constitution.” Cooley’s C'ons. Lim. at pages 405-06, lays down the law as follows: “Whatever belongs merely to the remedy may be altered according to the will of the State, provided the alteration does not impair the obligation of the contract; and it does not impair it, provided it leaves the parties a substantial remedy, according to the course .of justice as it existed at the time the contract was made. It has accordingly been held that laws changing remedies for the enforcment of legal contracts, or abolishing one remedy where two or more existed, may be perfectly valid, even though the. new or the remaining remedy be less convenient than that which was abolished, or less prompt and speedy. ‘Without impairing the obligation of the contract, the remedy may certainly be modified as the wisdom of the nation shall direct.’ ” See 3 Va. & W. Va. Dig. 221. We cannot realize that the convention” and people adopting the. constitution intended to hamper the necessary and ordinary powers of the legislature to formulate, prescribe and modify remedies. The constitution gives the supreme and circuit courts equal and concurrent jurisdiction in mandamus, and yet the position' of counsel would give one function, a greater one, to the action in the circuit court, another in the supreme court; for it was conceded by counsel that the legislature could enlarge the effect of the writ in circuit courts by bringing under the writ matters not under it at common law. There cannot be such a difference
' I will add that even if we held the act inoperative to give this Court jurisdiction in this case, there would still be jurisdiction to allow Boggess the writ to be inducted into an office, this writ lying without statute at common law to admit one to office under old and late cases cited in State v. Shumate, 48 W. Va. 363, and Kline v. McKelvey, 57 W. Va. 29.
Which has right to be appointed ballot commissioner, Bog-gess or Musgrave? We do not find it necessary to say whether or no the central committee had power to fill the vacancy in its-membership arising from the fieath of one of its members; or, if it could do so, whether it must do so .by at least six votes, a majority of the full committee of ten, or could do so by a vote of five, a majority of nine members after the death of Brannon. Nor even whether the new executive committee is the true one. Our decision is based on the fact that the congressional and state committees, and the congressional and senatorial conventions and committees on credentials have heard both sides as to their claims to legitimacy upon contest, and have decided that the reorganized county executive committee, of which Juhling is chairman, is the true committee. The state executive committee has so held, and the convey tions of the party and their committees have seated i delegates, deriving title through that reorganized comm; and if we give force to their adjudications upon these litical matters, we must inevitably say that Boggess has to be appointed ballot commissioner, since his is source of title as those delegates to those convention^ shall we not defer to and recognize those decisions party authorities ? What other light shall guide
-We do not know or say what may be the power of a Republican State Committee in such a matter as that before us. We do say, however, that in this case both sides to this contestation appeared before that committee and submitted their claims, and thus came under the jurisdiction of that committee, and submitted to its -jurisdiction,. and they cannot now deny its determination. They are estopped to do so. Upon principles of voluntary arbitration this is so. See State v. Weston, 27 Mont. 194.
I remark that the primary elections held under the call of the reorganized committee polled more votes than did those held under the other committee, showing preponderance of popular approval of the party reorganization, as representing the party’s sentiment, though under the principle on which we rest our decision, this is not material.
It was argued by counsel that the clerk had sole and exclusive power to say which of the contestants should be appointed ballot commissioner, and that he is not subject to judicial control. We cannot for a moment entertain this proposition. It is plainly contrary to the intent of the Act of 1893, and would put a wide arbitrary power in the clerk’s hands. The cases above cited and others overrule this contention.
The writ is awarded.
I make this pos’tscript note after decision to cite the following point in State v. Lesueur, 103 Mo. 253, “An agreement
Writ Awarded. ■
Dissenting Opinion
(dissenting) :
I can not agree to the majority opinion for the following reasons, viz: ,
(1) I do not think this Court has original jurisdiction of the ease. It is an original application to this Court for mandamus to review the action of the circuit clerk in appointing F. G-. Musgrave as republican ballot commissioner in the county of Mason, and to reverse his action and compel him to appoint petitioner in his stead. There were two executive committees of the republican party in said count)', each claiming to be the regular one. The chairman of each of said executive committees made nominations for ballot commissioner.- The one designated by the chairman of the regular committee only could be appointed. It, therefore, became necessary for the clerk to investigate the facts, and ascertain which committee was regular, and to appoint the person named by him, if he was otherwise qualified. The nature of the case presented a judicial, not a ministerial, question; it required the elgrk to malee an examination of the facts, and to apply the law to them. In the language of BRANNON, Judge, in the Marcum Case, 42 W. Ya., at page 266: “This was then a judicial question, called quasi judicial when the matter is before an officer or a tribunal, not a court; and such a question can not be made the basis of a mandamus at common law.” This, I think, is absolutely sound. The clerk in the present case had a question to decide similar to the one to be decided by the ballot commissioners in that case. Now, if such a question could not be reviewed on mandamus at the common law, I do not think the legislature can confer original jurisdiction on this Court to review it, by an enlargement of the writ. I do not deny the power to the legislature to modify, ox even take away a remedy, provided that such modification or substitution of remedies does not interfere with vested rights. But I do not think the legislature has the power to so enlarge the scope of a writ
So far as I know, this is the first time this Court has had its attention called to the constitutional right of the legislature to thus enlarge the original jurisdiction of this Court. Nearly all of the mandamus cases, involving questions pertaining to the election laws, have been brought here on writs of error to the circuit courts, and the question of original jurisdiction in this Court has never before been so much as mooted in the opinions in any of the decided cases; and hence, I regard it as an entirely open question.
(2) But I do not believe section 89 of chapter 3 of the Code was intended to confer jurisdiction on this Court, or on the circuit courts, to review, by mandamus, such a question as the petition in this case presents. I think the legislature intends that the writ shall embrace only such matters as are ministerial, and such as were comprehended by the writ at the common law: the statute is only declaratory of the common law. If the legislature intended to substitute mandamus for cer-tiorari, because it is a more expedient remedy, why then did it retain the latter writ? There can be no reason for retaining
Another potent reason supporting the view that the legislature did not intend mandamus to be used to control judicial, or quasi judicial action, is, that conflicting rights are always involved when such questions are to be decided, and the writ of manda/mus, being a peremptory writ to compel the performance of an unquestionable legal duty, is addressed to the officer whose duty it is to perform the act, and by such writ the claimant of the right, or benefit to be derived by the act to be performed, is given no opportunity to be heard. The rights of parties would thus be determined without a hearing. The legislature, in my opinion, simply intended that mandamus should be used, in election matters, to compel election officers to perform purely ministerial duties, just as the writ was used at the common law to compel performance of ministerial duties in other matters, and that if the duty to be performed involved quasi judicial action, then certiorari, and not mandamus was to be the remedy. We have many statutes that are simply declaratory of the common law rules and principles. I do not think we can get around the question by saying that the circuit clerk is a ministerial officer; that all his acts are, therefore, necessarily ministerial; that he must determine all judicial questions right; and that, if he does not do so, his action can be reviewed by mandamus. Whether the question to be decided by’ the clerk is purely a preliminary question pertaining to his ministerial dutjq or is a quasi judicial question depends upon the very nature of the question to be decided, and not upon the' fact that the officer who decides it is a ministerial officer. This Court can no more convert a quasi judicial act into a ministerial one, by deciding that all the acts of a ministerial officer are ministerial acts, than it can change a law of nature. The quality of the act depends upon its nature, and not upon the official character of the officer.
This Court held, in the Marcum Case, that mandamus would not lie “to control or reverse the action of a court, board, or other inferior tribunal, or of an officer, where such action is one of discretion, judicial or quasi judicial.” And, as I interpret the opinion in that case, it holds that the action of the ballot commissioners in determining that Harvey’s and not
(3) But suppose I am wrong in any view concerning the power to review the judicial act of a ministerial officer on the writ of mandamus, still I am unable to agree with the majority in regard to the merits of the controversy. If the matter is one which merits the consideration of this Court then I know of no other way to decide it than upon an investigation of the facts, and an application thereto of the established rules and ¡oaúnciples governing courts of justice. Must we say that because the state committee, and committees appointed by congressional and senatorial conventions have decided the question, that their decision is final, and binding on this Court, and that we are thereby precluded from going behind them, to look into the merits of the ease? Are we precluded by their judgments from looking to the facts, even though we may clear
It appears that the custom with the republicans of Mason county has been to elect, either in convention, or by primary election a county central committee composed of ten members, one from each magisterial district. This committee then appoints a county executive committee composed of five, or' .seven members, whose duty and right it is to manage the political campaigns. Each committee is selected for a period of 'two years, both dérive their power from the republican party of Mason count}', one directly, and the other indirectly. Now, there is no question but that the old executive committee was the duly appointed and regular one. If it was lawfully deposed by the central committee, it necessarily follows that the new committee is the regular one, but if not lawfully
The full membership of the county central committee was ten; and only five members of the old central committee were present when they assumed to depose the old executive committee. They first attempted to fill a vacancy in the central committee; but according to the law above cited they were powerless even to fill a vacancy. The new member was not a lawfully constituted committeeman, and all their proceedings were void. A quorum was just as much lacking after the pretended appointment of the new member, as before. So that, applying- the rules and principles of law regulating bodies of like nature, and I know of nothing else to apply in the decision of a matter, whether it relate to personal rights, property rights, or political rights, the entire proceeding by the old central committee was only a pretense, and was absolutely void, and conferred no authority on the new executive committee. It then follows, as a matter of course, that the old executive committee was the regular one, and that the central committee chosen at the primary election, held pursuant to its call, was the regularly constituted new republican central committee, and that H. E. Mitchell, the chairman of the new executive committee appointed by it, is now the regularly constituted chairman of the republican executive committee of Mason county. I do not think the political wrong attempted to be consummated by less than a quorum of the old central committee should be sustained in a court of justice on the ground that such action has been sanctioned by committees appointed by congressional and senatorial conventions, and by the state central committee. Two wrongs can not make a right, even though the right be only a political one. So that, instead of the rela
AI-generated responses must be verified and are not legal advice.