Ora BRADY v. Ken HECHLER, Secretary of State, Tracy W. Hylton, Janis Davis, William Richmond and Vivian Garland, Ballot Commissioners of Raleigh County, and John S. Lambert, Harold Griffith and Jimmy Graham, Ballot Commissioners of Wyoming County.
No. 17137.
Supreme Court of Appeals of West Virginia.
June 12, 1986.
346 S.E.2d 546
Dissenting Opinion July 14, 1986.
Atty. Gen. Charlie Brown, Deputy Atty. Gen. Marianne K. Hoover, Charleston, for Hechler.
File, Payne, Sherer & Brown, E.M. Payne, III, John L. File, Beckley, for Hylton.
McHUGH, Justice:
In this mandamus action, the petitioner, Ora Brady, asked this Court to direct the Secretary of State of West Virginia and the ballot commissioners of the Ninth Senatorial District of West Virginia to strike respondent Tracy W. Hylton‘s name from the May 13, 1986, primary election ballot as candidate for the nomination of the Democratic Party for the office of Senator of the West Virginia Legislature. The petitioner contended that Hylton failed to timely file with the Secretary of State the certificate of candidacy for nomination required under
This Court directed the respondents to show cause why relief should not be awarded against them. Subsequently, by order entered on April 16, 1986, we directed the
In this opinion, we set forth our reasoning for the relief granted to the petitioner. This Court has before it the petition, the order of April 16, 1986, all other matters of record and the argument and memoranda of law of the parties.
I
The petitioner was a resident and registered voter of the Ninth Senatorial District. That district is made up of Wyoming County, West Virginia, and a portion of Raleigh County, West Virginia.
The primary election, at which Hylton sought to be nominated, took place on May 13, 1986. Pursuant to
Pursuant to
According to affidavits filed on behalf of Hylton, it is claimed that on February 1, 1986, in Beckley (Raleigh County), West Virginia, Hylton handed to a postal clerk at the United States Post Office an envelope addressed to the Secretary of State which purportedly contained Hylton‘s certificate of candidacy for nomination. It is asserted that Hylton informed the clerk that he wanted the envelope postmarked that day. It is further asserted that the clerk responded that the envelope would be postmarked that day. Moreover, it is claimed that the envelope was sent by postal authorities to Charleston, West Virginia, and then postmarked. We find that an envelope was delivered to the Secretary of State bearing a postmark of February 2, 1986.
The Secretary of State certified Hylton‘s candidacy for State Senate. As the record indicates, Hylton‘s name was placed upon the primary election ballot in the Ninth Senatorial District.
II
As stated in annot., 72 A.L.R. 290 (1931): “It is generally and almost universally held that statutory provisions in election statutes, requiring that a certificate or application of nomination be filed with a specified
In Baker, vacancies occurred in three senatorial districts, after a primary election, in the nomination of the Republican Party for the office of Senator of the West Virginia Legislature. As a result, party officials filed certificates of nomination with the Secretary of State of West Virginia in an attempt to place candidates upon the ballot for the general election. Inasmuch as the certificates of nomination were not filed by the executive committee or chairman “of the political party for the political division in which the vacancy occurs . . . ,” the certificates were filed with the Secretary of State in violation of the provisions of
In awarding mandamus relief to certain citizens and taxpayers of the senatorial districts in question, this Court, in Baker, directed that the names of the persons attempted to be so nominated be omitted from the general election ballot. In so holding, this Court stated: “The legislature has fixed the time in which the proper committees can fill vacancies which may occur in party nominations of candidates for offices caused by death, withdrawal or failure to make a nomination and this Court can not change the provisions of the statute. . . .” 152 W.Va. at 407, 163 S.E.2d at 877. Moreover, syllabus point 3 of Baker states: “Where a statute provides for a thing to be done in a particular manner or by a prescribed person or tribunal it is implied that it shall not be done otherwise or by a different person or tribunal.”
Similarly, in State ex rel. Vernet v. Wells, the “petitions or certificates of nomination” of certain candidates for county office were filed “more than two months after expiration” of the time required by law, with regard to nominations made after primary elections. Consequently, the names of those candidates were ordered by this Court, in a mandamus proceeding, to be omitted from the general election ballot. Syllabus point 1 of Vernet states: “Ballot commissioners cannot lawfully place on any ticket, the name of any person to be voted for in an election, who has not been nominated agreeably to law.”
See also State ex rel. Hott v. Ewers, 106 W.Va. 18, 144 S.E. 578 (1928), and State ex rel. Lewis v. Board of Ballot Commissioners, 82 W.Va. 645, 96 S.E. 1050 (1918), which cases indicate that the provisions of
Consistent with the above is the decision of the Supreme Court of Wisconsin in State ex rel. Ahlgrimm v. State Elections Board, 82 Wis.2d 585, 263 N.W.2d 152 (1978). In Ahlgrimm, a candidate for circuit judge failed to timely file with the State Elections Board his “nomination papers” with regard to the “spring election” to be held in April, 1978. The filing deadline, established by statute, was January 17, 1978. Even though there were no other candidates for that judgeship, and the candidate had timely filed his nomination papers in the wrong office (a circuit clerk‘s office, rather than with the State Elections Board), the Supreme Court of Wisconsin refused to order that the candidate‘s name be placed upon the ballot. The court, in Ahlgrimm, stated:
Because the petitioner did not file his nomination papers with the Board until February 3, 1978, he did not timely file. If the nomination papers are not timely filed, the proposed candidate is not entitled to have his name printed on the ballot.
Filing deadlines have consistently been treated as mandatory by this court. For example, in State ex rel. Stearns v. Zimmerman, 257 Wis. 443, 43 N.W.2d 681 (1950), this court held that where a candidate for the United States Senate did not file his nomination papers in the Secretary of State‘s Office or present them for filing until after the 5:00 p.m. deadline
. . . .
Because the petitioner did not timely file with the State Elections Board his nomination papers for the office of circuit judge, his name cannot appear on the ballot. As unfortunate and regrettable as this result might be, ... the burden was on the petitioner to properly file. He did not do so.
82 Wis.2d at 592-93, 597, 263 N.W.2d at 155, 158.
In the Stearns case, mentioned above in Ahlgrimm, the Supreme Court of Wisconsin stated: “[T]he time limit set by the legislature for the filing of nomination papers must be strictly observed.” 257 Wis. at 445, 43 N.W.2d at 682. See also State v. Marshall, 633 P.2d 227 (Alaska 1981); Tobin v. May, 72 A.D.2d 648, 421 N.Y.S.2d 441 (1979); MacKenzie v. Buckley, 75 Misc.2d 379, 347 N.Y.S.2d 986 (1973); In re Lucasi, 46 Pa. Cmwlth. 389, 407 A.2d 81 (1979); State ex rel. Earley v. Batchelor, 15 Wash.2d 149, 130 P.2d 72 (1942). Cf. Bayne v. Glisson, 300 So.2d 79 (Fla. Dist. Ct. App. 1974); State ex rel. Englert v. Meier, 115 N.W.2d 574 (N.D. 1962); In re Hall, 26 Pa. Cmwlth. 54, 362 A.2d 475 (1976); Ryshpan v. Cashman, 132 Vt. 628, 326 A.2d 169 (1974).
As stated above, an envelope bearing a postmark of February 2, 1986, was delivered to the respondent Secretary of State. That envelope contained Hylton‘s certificate of candidacy for nomination. Nevertheless, had Hylton complied with the provisions of
In that regard, we note that the law relating to “postmarks” has been developed on the federal level, with respect to the internal revenue laws of the United States. Pursuant to
In so holding, we are simply reasserting the principle stated in State ex rel. Baker v. Bailey, supra, that where a statute provides for a thing to be done in a particular manner “it is implied that it shall not be done otherwise. . . .” In particular, the mandatory provisions of
Accordingly, as reflected in our order entered on April 16, 1986, we directed the respondent Secretary of State to withdraw his certification of respondent Hylton‘s candidacy for nomination, and we directed the resondent ballot commissioners to strike Hylton‘s name from the primary election ballot in the Ninth Senatorial District.
Writ granted.
BROTHERTON, Justice, dissenting:
The purpose of
The letter and spirit, therefore, conflicted in this case. In the past we have consistently applied the spirit of the law over the letter to do justice. See, e.g., State ex rel. Lawhead v. Kanawha County Court, 129 W.Va. 167, 172, 38 S.E.2d 897, 900 (1946). Being late has quite often been forgiven by this Court where strict compliance would create an injustice. See Tabler v. Weller, 176 W.Va. 267, 342 S.E.2d 234 (1986) (fiduciary accounting filed late); Graley v. Graley, 174 W.Va. 396, 327 S.E.2d 158 (1985) (failure to attend hearing); Bailey v. State Workers’ Comp. Comm., 170 W.Va. 771, 296 S.E.2d 901 (1982) (workers’ compensation claim filed late); Parsons v. Consolidated Gas Supply Corp., 163 W.Va. 464, 256 S.E.2d 758 (1979) (answer filed late); State ex rel. Bratcher v. Cooke, 155 W.Va. 850, 188 S.E.2d 769 (1972) (late appeal);
I, therefore, respectfully dissent.