145 W. Va. 208 | W. Va. | 1960
Lead Opinion
In this original proceeding in mandamus instituted in this Court on April 18,1960, the petitioners, Donald Evans, Della Wellman and Ivan Napier, seek a writ of mandamus to compel the defendants, Grant Kennedy, W. A. Myers and James R. Farley, members of the County Court of Mingo County, West Virginia, to reconvene in special meeting and to reject a list of persons whose appointment as election commissioners and poll clerks for the primary election to be held on May 10, 1960, had been requested by the chairman of the Mingo County Democratic Executive Committee and in lieu of the appointment of the persons named in such list to appoint persons selected by the county court to serve as such election commissioners and poll clerks or, in the alternative, to compel the defendants to reconvene in special meeting and ascertain and determine whether the certificate of the chairman of the Mingo County Democratic Executive Committee reflected the action of such committee.
The petitioners Donald Evans and Della Wellman are members of the executive committee and the petitioner Ivan Napier was a candidate for member of the board of education of Mingo County at the primary election on May 10, 1960.
To the petition the defendant Grant Kennedy filed his demurrer and his separate answer, with which were filed certain exhibits; and Morrie Blair and ten other members of the Mingo County Democratic Executive Committee filed their petition, in which they asked permission to intervene and be made parties defendant in this proceeding.
On May 2, 1960, this proceeding was submitted for decision upon the foregoing pleadings, a stipulation
By order entered May 4, 1960, this Court held that the petitioners were not entitled to a writ of mandamus as prayed for and refused to award such writ and that, under the facts and circumstances disclosed by the pleadings filed and the evidence introduced, Mor-rie Blair and the ten other members of the Mingo County Democratic Executive Committee were not entitled to intervene and be made parties to this proceeding. This opinion has been prepared and is now announced for the purpose of stating the reasons which prompted this Court to deny the writ sought by the petitioners.
The petitioners base their right to a writ of mandamus in this proceeding on the ground, alleged in the petition, that at a meeting of the Mingo County Democratic Executive Committee held on April 2, 1960, for the purpose of selecting persons to serve as commissioners and poll clerks at the primary election to be held on May 10, 1960, at which meeting, according to the stipulation, a quorum of the committee was present, the list of such persons presented to the county court at its meeting on April 5, 1960, which was the fifth Tuesday preceding the day on which the primary election was to be held, was not prepared or approved by the executive committee but was prepared by its chairman by virtue of the authority delegated to him by the committee to prepare such list.
Section 15, Article 4, Chapter 3, Code, 1931, as amended, provides to the extent here pertinent that “The county court of every county shall hold a regular or special session at the courthouse of the county on the fifth Tuesday preceding the day on which any primary election is to be held, and shall appoint for each precinct in the county three commissioners of
Under the foregoing provisions of the statute the county court of every county is authorized and empowered to appoint, subject to certain stated limitations and restrictions, all commissioners and poll clerks to serve as such at each voting precinct in the county at any primary election in such county; but if the county executive committee of an eligible political party complies with the applicable provisions of the statute in presenting to the county court of any county a writing signed by the committee or by its chairman or secretary in its behalf requesting the appointment of a qualified voter of such party, who is otherwise qualified to serve as an election officer, for one commissioner and one poll clerk for each board of election officers at each voting precinct in the county at a primary election, it is the duty of the county court to make the requested appointment of each of such persons; and mandamus lies to compel the county court to appoint the persons designated
The charge of the petitioners that the list submitted by the chairman of the executive committee was the list prepared by the chairman and not the list prepared and approved by the executive committee is denied by the answer of the defendant Kennedy and the proof, in the form of affidavits, among which are the affidavits of eleven members of the executive committee who attended the meeting at which the selection of the commissioners and poll clerks to serve at the primary election was considered, shows by a clear preponderance that the list submitted by the chairman was prepared and approved by the executive committee and represented its action at that meeting.
As the list submitted to the county court at its meeting on April 5, 1960, by the chairman of the executive committee was in fact prepared by the executive committee and represented its action, even though the county court made a finding that the list was that of the chairman instead of that of the committee, and as the qualifications of the persons designated to serve as election officers are not questioned, it was the duty of the county court to accept the list, which it did, as shown by its orders, copies of which are filed with the stipulation of the parties, and to appoint the persons designated as commissioners and poll clerks to serve as such at the primary election, and its action in so appointing such persons and in publishing a list of the persons appointed to serve as commissioners and poll clerks at the primary election, which included the persons named in the list submitted by the chairman of the executive committee, was in all respects correct and proper and should not have been, and was not, disturbed by this Court. But even if the list submitted to the county court by the chairman of the executive committee had been prepared by him instead of having been prepared and approved by the committee, the county court was em
This Court in many cases has held that he who seeks relief by mandamus must show a clear legal right to the remedy. Hockman v. The County Court of Tucker County, 138 W. Va. 132, 75 S. E. 2d 82; State ex rel. Koontz v. The Board of Park Commissioners of the City of Huntington, 131 W. Va. 417, 47 S. E. 2d 689; State ex rel. Goloversic v. Arnold, 128 W. Va. 272, 36 S. E. 2d 209; Childers v. State Road Commissioner, 124 W. Va. 233, 19 S. E. 2d 611; Ebbert v. Bouchelle, 123 W. Va. 265, 14 S. E. 2d 614; Brumfield v. Board of Education, 121 W. Va. 725, 6 S. E. 2d 238; Rusinko v. Shipman, 111 W. Va. 402, 162 S. E. 316; Antonovich v. State Compensation Commissioner, 110 W. Va. 273, 157 S. E. 591; State ex rel. Woodyard Publications v. County Court of Hardy County, 108 W. Va. 166, 150 S. E. 512; State ex rel. Goshorn v. Johnson, 102 W. Va. 629, 135 S. E. 899. The petitioners have not satisfied that requirement in this proceeding.
As a general rule any person having an interest in the subject matter or whose right or interest will be affected by the judgment awarding the writ, may intervene in a mandamus proceeding. There must, however, be a proper showing of substantial interest in the subject matter to authorize an intervention and a person on whom rests no duty to perform the act sought to be enforced in the mandamus proceeding, or who has no substantial and peculiar interest in the subject matter of the litigation, or whose interest will not be affected by a judgment awarding the writ can not intervene as a party. 55 C.J.S., Mandamus, Section 254c. Whether intervention should be granted or refused is within the sound discretion of the court. 55 C.J.S., Mandamus, Section 254c. See Willett v.
‘ ‘ Though the granting or the refusal of a request to intervene in a proceeding in mandamus is within the sound discretion of the court, there must be a proper showing of substantial interest in the subject matter of the litigation in order to authorize an intervention. ‘An individual or a corporation on whom no duty rests to perform the act sought to be enforced in mandamus proceedings, or who has no substantial and peculiar interest in the subject matter of the litigation, or whose interest will not be affected by a judgment awarding the writ cannot intervene therein as a party.’ 55 C.J.S., Mandamus, Section 254c. See
The allegations of the petition of Morrie Blair and ten other members of the county executive committee do not bring them within the scope of any statute of this State which in any way authorizes intervention by them as defendants in this proceeding. Inasmuch as they are under no duty to perform the acts sought to be enforced in this proceeding and are only collaterally and incidentally interested in the subject matter of this litigation, and inasmuch as their evidence in the form of affidavits sustains the action of the executive committee in requesting the appointment of the election officials designated in the list submitted to the county court, it was not necessary that they should be made parties to enable them to protect their interest in the subject matter of this litigation and, in view of the facts and circumstances disclosed by the pleadings filed and the evidence introduced, this Court, in the exercise of its discretion, by its order entered May 4, 1960, refused to permit them to intervene and be made parties defendant in this proceeding.
Writ denied.
Concurrence Opinion
concurring:
Involved in this proceeding are the contentions of the two minority members of the Mingo Connty Democratic Executive Committee to the effect that the meeting of the committee at which precinct primary election officers were selected was held in the absence of a quorum, and that the precinct election officers were selected solely by the chairman, not by the committee.
The County Court of Mingo County informed this Court that “it has voted to make no appearance and file no answer in the mandamus proceeding brought against it by Donald Evans and others”.
The eleven members of the committee who sought to intervene, after specifically and in detail alleging their respective memberships in the committee, and alleging the contrary of the contentions of relators, supporting such allegation by eleven affidavits attached, including the affidavit of the chairman of the committee, stated that they “have such an interest in the subject matter of the petition * * * entitling them to intervene therein, * * * acting in their capacity as the Mingo County Democratic Executive Committee, and as members thereof, and as duly and legally and acting members and representatives of the Democratic Party in Mingo County, West Virginia, in the performance of their duties and rights as members of said committee, and as the duly and legally elected, appointed and qualified representatives of said Democratic Party, and specifically, in the performance of their rights and duty as the Mingo County Democratic Executive Committee”.
The majority admits, as it must, State ex rel. Thompson v. Fry, 137 W. Va. 321, 71 S. E. 2d 449, that the intervening petitioners had the right to appear and have their petition filed and considered, if they had “an interest in the subject matter or whose rights or interests will be affected”. It is my position that the allegations of the petition tendered to this Court by
It should be kept in mind that an executive committee of a political party is a governmental body, created by the Legislature, and serves useful functions in the manner of holding or conducting free elections. I do not believe that a minority of two members thereof should be permitted to prosecute an action which could nullify and render ineffective the official action of such a committee, or even question any action of the committee, without permitting the committee, through a majority of eleven, to appear and answer charges made against it.
In the instant case, however, the true facts relating to the issues were properly made known to this Court, and the effects of its final action were in accord with the relief sought by the intervening petition. Those who sought intervention, therefore, were not prejudiced. For that reason I agree with the final disposition of the case. But it should not be overlooked that the right of a party to intervene should be determined as of the time petition therefor is tendered, not after final litigation.
I am authorized to say that Judge Browning concurs in the views expressed in this memorandum.
