29 S.E.2d 634 | W. Va. | 1944
This Court awarded a rule upon the petition of Francis D. Calley and A. W. Damron, requiring M. C. Blake, Clerk of the Circuit Court of Cabell County, Samuel Biern, and Maxwell W. Flesher, ballot commissioners, to show cause why a peremptory writ of mandamus should not be awarded commanding the respondents to place the names of the relators on the ballots of the primary election to be held May 9, 1944, as candidates for the office of member of The Board of Education of the County of Cabell for the residue of an unexpired term.
The facts are undisputed. At the general election held in Cabell County on November 5, 1940, W. T. Toney, a resident of Gideon District, and B. F. Beaman, a resident of Kyle District, were elected members of the board of education of that county and are now members thereof. In 1942 three vacancies existed in the membership of the board, one for a four-year term, and two for six-year terms. The vacancy for the four-year term was filled by the nomination and election of Harry Dodson, who was not a resident of Kyle or Gideon District. H. B. Daniel, a resident of Kyle District, Mrs. E. Wyatt Payne, a resident of Kyle District, George W. Carter, a resident of Gideon District, and G. Y. Neal, a resident of Gideon District were nominated at the primary election of 1942, to fill the two six-year terms, and the four persons above mentioned were balloted for as hereinafter stated. Canvass of the returns of the 1942 general election showed that the number *698 of votes cast for the respective nominees for the six-year terms were as follows:
Daniel ................... 13,674
Payne .................... 11,030
Carter ................... 11,001
Neal ..................... 8,840
Daniel was inducted into the office of member of the board and his right thereto is not in issue. Notwithstanding that he received fewer votes than Payne, Carter was issued a certificate signed by the commissioners of the County Court of Cabell County to the effect that he had been duly elected to the office of member of the board of education for the term of six years, having received the highest number of votes cast for that office. Carter took the oath of office as a member of the board; on July 5, 1943, he entered on the discharge of the duties thereof, and neither his exercise of the duties of that office, nor any of his official acts have been challenged.
Relators filed their certificates of candidacy for the office of board of education for the County of Cabell on the 5th day of February, 1944, in the office of the Clerk of the Circuit Court of Cabell County between the hours of ten and eleven P. M., of that day. The office which such certificates described is alleged to be a vacancy in the office of member of the board of education of said county, ineptly described as "a four-year unexpired term". Filing fees were paid and the requirements of the statute in respect to such filing were met.
Relators demanded that their names be placed on the ballots to be voted as candidates at the primary election of 1944. Respondents on the 9th day of February, 1944, advised relators that they refused to place their names on the ballots on the ground that no vacancy exists in the office of member of the board of education for a four-year unexpired term.
Mandamus proceedings to vindicate an alleged right under the statutory provisions of this jurisdiction relating *699
to elections is substantially different from that remedy as it existed at common law. The following quotation from Code, 3-5-41, suffices to illustrate: "Any officer or person, upon whom any duty is devolved by this chapter may be compelled to perform the same by writ of mandamus. * * *". "Mandamus in election cases, expressly authorized by statute, is intended to hasten the ascertainment and declaration of elections, as well as the performance of other duties by election officers. * * * It enlarges the scope of the writ, making it applicable to all the duties of election officers whether ministerial or judicial, and in respect to ministerial duties, to operate as a certiorari, thus providing a summary review of the action of such officers." Marquis v. Thompson,
Respondents argue that relators, having separate interests, could not be joined in this proceeding. Mandamus is considered as an ordinary action at law and is prosecuted in all respects as such. County Court v. Brammer,
The asserted rights of relators to have their names placed on the primary election ballot is grounded on their contention that a vacancy now exists in the membership of the board of education. The respondents take the position that Carter is ade facto member of the Board of Education of Cabell County; that no vacancy exists until so declared by competent authority; and that they as a board of ballot commissioners have no power to declare such vacancy.
The principle of law invoked by relators has been recently considered and applied by this Court. Orndorff v. Potter,
Various definitions of a de facto officer will be found in decided cases, two of which, generally accepted and approved, are: "An officer de facto is one who has the reputation of being the officer he assumes to be, and yet is not a good officer in point of law." Constantineau on De Facto Doctrine, page 31, Section 22. The above quotation is cited with approval in the case of Griffin's Ex'or. v. Cunningham, 20 Gratt 31, 43. Another definition, more exhaustive, is found in the case ofState v. Carroll,
Carter being a de facto officer, can his right to occupy the office be assailed in this proceeding? There is neither a direct assault upon his official acts nor his title to office, but the basic proposition that there is a vacancy would result in holding that the office is now vacant or will be vacant at the time of the general election, and this proceeding necessarily questions Carter's right to occupy the office in the event either of the relators should be elected and qualify within the time prescribed by Code,
Many authorities have been cited to show that the acts of ade facto officer are valid as to third persons. Ample statutory authority as to the binding nature of the acts of de facto
officers will be found in Code,
The office of member of a board of education is created and the term thereof fixed by statute. Chapter
It is well to note that vacancies in the membership of county boards of education may be filled at the general election by nominations made as provided in Section 23(a), Article 4, Chapter
The relators have not shown a clear legal right to the relief they seek, and. for that reason the writ prayed for is denied.
*704Writ denied.