134 W. Va. 470 | W. Va. | 1950
Lead Opinion
This original proceeding in mandamus brought by Edward Lockhart, Sr., Morton M. Lipman, Joe A. Marino, Fitzhugh Smith, Henry J. Capehart, Jr., and Hal B. Belcher, petitioners, against L. E. Rogers, mayor of the City of Welch, Meyer Bell, Howard Sly, Jess Mullins, Joseph G. Travis and W. B. Swope, members of the council of that city, Hobart E. Payne, city clerk, and the City of Welch, a municipal corporation, is' for the purpose of compelling the defendants to place the names of the petitioners on the official ballot to be used in voting at the municipal election held in the City of Welch on June 6, 1950, and to compel defendants to appoint certain persons recommended as commissioners and poll clerks to represent the Democratic party in conducting such election.
Petitioners allege that Lockhart was legally nominated for the office of mayor of said city; and that the other petitioners were nominated for the office of members' of the council thereof, to be voted for at the municipal election above mentioned. They further allege that such nominations were authorized by Chapter 40, Acts of the Legislature, 1941, and Code, 3-4-30.
It is also alleged that certain legally qualified persons were duly recommended for appointment as commissioners of election and poll clerks representing the Democratic party to conduct such municipal election.
No evidence was adduced. The petition and answer disclose the following: The special charter of the City of Welch, Chapter 3, Section 28, provides that the first election under such charter should be held on the first Tuesday in June, 1930, and every two years thereafter on the first Tuesday in June. In the years 1934, 1936, 1938 and 1940, conventions were held by the Democratic party, and nominations for municipal officers were made in accordance with Section 25 of the charter of the city. An executive committee was selected by the convention of 1940, and a chairman of such committee was elected. No conventions were held, no nominations were made in the years 1942, 1944, 1946, 1948, and 1950, and it would seem that the Democratic party in so far as participating in municipal elections had disintegrated, although in 1942 recommendations were made by the chairman for the appointment of commissioners of election and poll clerks to conduct the election in that year. The chairman elected in the year 1940 has not resided in Welch since 1942, he having entered the military service of the United States in that year and upon his return from that service, he established his domicile elsewhere. All the members of the Democratic executive committee selected by the convention of 1940 are registered voters of Welch, but only five
Defendants allege that they have selected the persons to represent the Democratic party as officers of the elections held in 1944, 1946, and 1948.
Prior to May, 1950, a person adhering to the Democratic party published an article in a Welch newspaper stating that he, along with other persons, was interested in placing on the ballot nominees for municipal offices as representing the Democratic party.
Petitioners assert that they were nominated by certificate, as authorized by Chapter 40, Acts of the Legislature, 1941, and Code, 3-4-30, and have complied with all the provisions of such statutes. It is alleged that the voters signing the certificate are approximately thirty per cent of the total vote cast at the last preceding municipal election; that the petitioners are legally qualified to hold the office for which -they are nominated; that the subscribers to said certificate are legally and duly registered voters in the City of Welch; that such subscribers desire to vote for such candidates; and that they were aware that upon signing the certificate they could not vote at any primary election next ensuing in the City of Welch.
It is further disclosed that at an allegedly “proper time” a person representing the Democratic party was present at a meeting of the council to present the names of the persons recommended as commissioners and poll clerks; and that such person was advised that the municipal council would not consider the appointment of election officers at that time. At a later meeting the council refused to consider the appointment of the persons so recommended. Although the allegation with reference to the recommendation of persons to be appointed election officers is denied, we think that fact is well pleaded in the petition, and a demurrer having been interposed to the petition by the defendant, we treat the allegation of the petition as true.
On May 29, 1950, this Court entered an order awarding a writ of mandamus requiring defendants to' place the names of the petitioners on the official ballot to be used at the regular municipal election, held in said city on June 6, 1950, and requiring defendants to appoint as election commissioners and poll clerks the persons designated as representing the Democratic party to represent said party at such election; but the Court did not pass on the eligibility of petitioners, Belcher, Capehart and Smith.
The first question presented is controlling: Are petitioners entitled to have their names placed upon the official ballot used in the municipal election above mentioned?
The right to vote and the conduct of elections are created by the Constitution and statutes of this State. 18 Am. Jur., Elections, Section 2.
“At the outset of any election case, the primary consideration is that no voter should knowingly be disfranchised.” State v. Langford, 122 W. Va. 398, 400, 9 S. E. 865. Mindful of the foregoing, we advert to the provisions of the charter of the City of Welch. “Between the first and fifteenth days of May preceding the municipal election for the purpose of electing city officers each political party shall at some convenient place, to be designated by the chairman of the city committee thereof, hold a convention for the purpose of nominating a mayor, councilman from each ward and two councilmen at large. Each of the political parties having the right to make nominations for city officials under the election laws of the City of Welch and State of West Virginia shall give notice
The pertinent part of Section 28 of Chapter 3, id., (charter of the City of Welch) reads as follows: “In all elections by the people, the mode of voting shall be by ballot * * *. The election in said city shall be held and conducted, and the result thereof certified, returned and officially determined under the laws in force in this state relative to general elections, except that the persons conducting said election shall, * * * in all respects comply with the requirements of the laws of the state relating to elections in force at that time. * * * And the provisions of the election laws of the State of West Virginia in effect on the date of said election, concerning elections by the people shall govern such elections and be applicable thereto, * * *.”
The pertinent provisions of the statute upon which petitioners rely read as follows: “Groups of citizens having no party organization may nominate candidates for public office otherwise than by conventions or primary elections. In such case the candidate or candidates, jointly or severally, shall file a declaration containing the name of the political party he or they propose to represent, its platform, principles or purposes, * * * with the clerk of the circuit court of the county if the office is to be filled by the voters of one county or political subdivision thereof.” Chapter 40, Acts of the Legislature, 1941.
No question is raised relative to the compliance by the petitioners with all provisions of Chapter 40, id. But defendants contend that Chapter 40, id., is not applicable to nominations made for the office of mayor and councilman of the City of Welch. They rely on the holding of this Court in the case of Bannister v. Glasgow, 117 W. Va. 172, 185 S. E. 2. In the Bannister case, this Court dealt with the applicability of Code, 8-3-15, relative to holding pri
The provisions of Section 28 of the charter of the City of Welch should be read and applied along with the provisions of Chapter 40, Acts of the Legislature, 1941, and when so applied there is statutory authority for nomination of municipal officers of the City of Welch by certificate. “That which is plainly within the spirit, meaning and purpose of a remedial statute, though not therein expressed in terms, is as much a part of it as if it were so expressed.” Hasson v. City of Chester, 67 W. Va. 278, 67 S. E. 731. See Ex parte M. T. Dickey, 76 W. Va. 576, 582, 85 S. E. 781; Carlton v. Herndon, 81 W. Va. 219, 221, 94 S. E. 131; Ex parte James Watson, 82 W. Va. 201, 205, 96 S. E. 648.
To give Section 25 of the charter of the City of Welch the application contended for by defendants would work a manifest injustice and would tend to prevent a substantial portion of the citizens of Welch from actually exercising their right of suffrage, and untrammeled selection of their city officials. It is to be presumed that no such result was intended by the Legislature. Hasson v. City of Chester, supra. See Pfalzgraf v. County Court, 73 W. Va. 723, 727, 81 S. E. 397; Harrison v. Harmon, 76 W. Va. 412, 419, 85 S. E. 646. We therefore conclude that applying the provisions of the special charter of the City of Welch,
We find no specific reference to the right of the petitioners and the party they represent to designate persons for appointment as commissioners of election and poll clerks. Chapter 59, Article 5, Section 9, Acts of the Legislature, 1945, Regular Session, makes provision for appointment of election officers upon recommendation of the county executive committees of the two political parties which at the last preceding election cast the highest and the second highest number of votes. In the instant case no votes were cast for the Democratic party at the election held in 1948. But the -case of Hasson v. City of Chester, supra, is authority for the proposition that the two leading parties are entitled to representation and may demand “the appointment of qualified persons designated by them.” Judge Poffenbarger in the body of the opinion in the Hasson case used the following language: “By this provision it is impliedly given, and, being given, it is not limited or restricted. Given in general elections and not denied in municipal elections, given, when there are leading parties as shown by preceding elections, and not denied, when there are leading parties, but not shown to be such by the preceding election, it must be assumed the legislature intended it for all elections. The plain purpose of the statute is to give representation to the leading parties in the interest of fairness and honesty in elections.”
The pertinent provisions of the charter of the City of Welch and Chapter 59, id., relative to the appointment of commissioners and poll clerks, should be construed in pari materia. Applying the principle laid down in the
We express no opinion as to the eligibility of petitioners, Belcher, Smith and Capehart. But see State ex rel. Thompson v. McCallister, 38 W. Va. 485, 18 S. E. 770; Kahle v. Peters, Mayor, 64 W. Va. 400, 62 S. E. 691; McMillen v. Neeley, 66 W. Va. 496, 66 S. E. 635; and annotation 88 A. L. R. 812.
We note that in this proceeding the council of the City of Welch occupies a position similar to that of a board of ballot commissioners under the general laws pertaining to State and county elections. As to the power of such board, see McKnight v. Ballot Commissioners, 86 W. Va. 496, 103 S. E. 399.
For the above reasons a writ of mandamus is awarded, as provided in the order of this Court entered May 29, 1950.
Writ awarded.
Dissenting Opinion
dissenting:
I can not agree to the decision in this proceeding which awarded a writ of mandamus to compel the defendants to place the names of the petitioners on the official ballot used at the regular municipal election held in the City of Welch on June 6, 1950, and to appoint certain designated persons as election officials to represent the Democratic party at that election. As I am thoroughly convinced that the writ should have been refused, I record my emphatic dissent.
I accept as substantially correct the legal pronouncements in these quoted statements in the majority opinion: “The right to vote and the conduct of elections are created by the Constitution and statutes of this State”; and “ ‘At the outset of any election case, the primary consideration is that no voter should knowingly be disfranchised.’ ”
The majority bases its decision upon the unsound premise that Chapter 40, Article 4, Acts of the Legislature, Regular Session, 1941, (incorporated in Michie’s 1949 Annotated Code as 3-4-29), Code, 1931, 3-4-30, and Section 28, Chapter 3, Acts of the Legislature, 1929, Municipal Charters, apply to and authorize the nomination of candidates for municipal office by certificate instead of by convention, as expressly provided by Section 25 of Chapter 3, Acts of 1929, Municipal Charters, and which last mentioned statute is the charter of the City of Welch. To bolster the conclusion reached, this bald and legally unsupported statement is set forth in the majority opinion: “To give Section 25 of the charter of the City of Welch the application contended for by defendants would work a manifest injustice and would tend to prevent a substantial portion of the citizens of Welch from actually exercising their right of suffrage, and untrammeled selection of their city officials.” In view of the express provisions of Section 25, which specify and prescribe a simple and familiar method whereby the members of the Democratic and the Republican parties may select their candidates for municipal offices, the statement just quoted is not only completely at variance with the real factual situation but is surprisingly inapt and utterly foreign to any material issue involved in this proceeding. The reasoning to support the quoted passage in the majority opinion would, in principle, ignore a valid statute imposing a tax and excuse a delinquent taxpayer for his failure to pay it.
If the Legislature had intended Chapter 40, Article 4, Acts of 1941, Regular Session, to apply to municipalities it could, and doubtless would, have made the application of the statute to such nominations clear by apt language. Only by a strained and utterly unwarranted construction, and not by any justified liberal construction, of the statute relating to nominations for public office can it be made applicable to nominations for municipal office. The tortuous construction now placed upon Chapter 40, Article 4, Acts of the Legislature, 1941, Regular Session, when read in connection with Section 28 of the charter of the City of Welch, however, can not extend the scope of the general statute to the purported nominations of the petitioners. The statute applies only to “groups of citizens having no party organization”. The record discloses, without the shadow of a doubt, that the Democratic party organization, to which the petitioners and the signers of their certificates of nomination unquestionably belong, though
In view of the foregoing recital of the real factual situation involved in this proceeding, it is evident that the
The statute which applies to and should control the decision in this case is Section 25 of the charter of the City of Welch, Chapter 3, Acts of the Legislature, 1929, Municipal Charters, which relates to the nominations of candidates of political parties for the municipal offices of mayor and councilman and expressly provides that between the first and the fifteenth day of May preceding a municipal election each political party shall hold a convention for the purpose of nominating a mayor and councilmen. The statute authorizes each political party to make nominations for these offices and specifies the method by which such nominations shall be made. As the statute creates the right to nominate the designated officers and provides the method to be pursued in exercising that right, it is a mandatory statute. Mandatory statutes are imperative and must be strictly pursued; and when
Under the authorities cited or quoted from in the preceding paragraph of this dissent, it is perfectly obvious to me that the only way in which candidates of the Democratic parity for the offices of mayor and councilman in the City of Welch can be legally nominated is by a convention of that political party as expressly provided by Section 25 of the charter of that city, and that, for that reason, the attempted nominations of the petitioners by certificates are null and void and of no valid force or effect.
The writ should have been refused in this case for an additional reason. By the conflicting allegations of their petition to the effect that the Democratic party organization in the City of Welch does not exist and that the proper representative of that party has recommended the appointment of election officers to represent it at the June election, the petitioners have assumed inconsistent positions in this proceeding. Manifestly the Democratic party organization can not be non-existent for one purpose and, at the same time, exist and function for another related purpose in connection with participation in the conduct of a municipal election. Litigants may not assume successive inconsistent, positions in the course of a suit or series of suits with reference to the same facts or state of facts. Hinerman v. Marshall County Bank, 134 W. Va. 533, 60 S. E. 2d 217; Calhoun County Bank v. Ellison, 133 W. Va. 9, 54 S. E. 2d 182; Greenbrier Laundry Company v. Fidelity and Casualty Company of New York, 116 W. Va. 88, 176 S. E. 631; Central Trust Company v. Cook, 111 W.
For the reasons stated, and under the authorities cited and discussed in this dissent, I would deny the writ of mandamus prayed for 'by the petitioners.
I am authorized to state that Judge Fox concurs in the views expressed in this dissent.