78 W. Va. 168 | W. Va. | 1916
The relator, Chairman of the Republican County Executive Committee of Kanawha County, seeks a peremptory writ of mandamus commanding the County Court of said county to appoint, as registrars of voters therein, certain persons whose names he had certified to that body for appointment to said positions, upon averment of his right to have them appointed under the provisions of sec. 98-a-'l of ch. 3 of the Code, as amended by ch. 28 of the Acts of 1915. Prom the return of the alternative writ, it appears that his presentation of the list of persons designated for appointment was met by a protest against their appointment, on the ground of alleged irregularity and invalidity of their selection. One member of the court was willing to appoint them, another declined and the third was absent from the court and the state, on account of illness.
The grounds of the protest were: (1) that S. P. Smith, the relator, was not, and never had been, chairman of said com
Clear legal right in the relator to have the act, he seeks to coerce, performed and plain duty to perform it, on the part of the respondent, are indispensable bases of an application for the writ of mandamus. Doubt as to his right or the duty of the officer is fatal to him. Hutton v. Holt, 52 W. Ya., 672; Payne v. Staunton, 55 W. Va., 684; Marcum v. Ballot Commissioners, 42 W. Ya., 263, 273.
The right to the relief sought here depends upon the solution of the numerous questions raised by the protest. Seven members out of eleven, a quorum with one to spare, composed the meeting at which the resolution purporting to give the chairman authority to name the registrars, if the elected committee had power to enlarge their number by election of a member at large, and Fogarty’s place had become vacant and had been properly filled. But, if the committee had no power to add to its membership, there could have been only ten members in all; and, if Fogarty had not vacated his place, less than a quorum constituted the meeting at which the resolution was passed. Whether-Smith, though a member, having right to vote only in case of a tie, could be counted to make a quorum, and whether Fogarty’s change 'of residence disqualified him, or, disqualifying him, ipso facto vacated his place, are questions. All of .these are determinable by rules, regulations and precedents of the political party of which the committee is a tribunal, and they are made, interpreted and applied by the party committees and conventions. They are not recognized or treated as constituting any part of the public law administered by the courts, unless made so by statute. Courts judicially know political parties, like other voluntary associations, have rules and regulations for their government and tribunals for the prescription, interpretation and administration thereof, and that the rights of members and inferior or subordinate
But if an inferior committee is divided into opposing factions and the demand of one of them upon a public officer or tribunal for the performance of a statutory duty toward the party such faction professes to represent, meets with resistance by way of a protest ’or remonstrance based upon facts raising issues determinable by party usages and customs, the right between them must be regarded as uncertain and undetermined. The remonstrance brings to the surface an issue for the determination of which public law known to the courts makes no provision. Of course, party usages and customs are susceptible of proof, but courts cannot interpret and apply them without invasion of the province of the party tribunals. Political parties, like fraternal and religious societies and corporations of all lands, administer, as well as make, their rules and regulations, within the limitations prescribed by law. To assume jurisdiction or exercise power within this sphere of social influence and dominion would be a judicial invasion of right and an unnecessary one. The right of a voluntary association to interpret and administer its own rules and regulations is as sacred as is the right to make them, and there is no presumption against just and correct action or conduct on the part of its supervising or appellate authorities and tribunals. On the contrary, the presumption is in favor of it. In connecting himself with the organization, a member subjects himself as fully and completely to the power of administration, within legal limits, as to the power of legislation or prescription. To say courts can make rules and regulations for such associations would be absurd and ridiculous. To say they may interpret and-apply them, in view of the powers reserved to, and exercised by, the governing bodies of the association, would be as plainly subversive of contractual right.
“Where the society makes provision for the settlement of controversies between it and its members, or between its members, concerning its government, its dissolution, or its property, courts will refuse to take cognizance of such controversies until those who have grievances have, in the first instance, resorted to and exhausted the remedies provided by the society; and it is not necessary, in such a case, that the language of such provisions shall make it imperative on the members to exhaust these remedies, but it is sufficient that the society has afforded a means for a settlement within the society itself. The mere provision of such a means abridges the right to appeal to the courts, until the prescribed means have been pursued. This rule also prevails in matters of discipline, in the expulsion and suspension of members, and arises from the fact that in such cases the controversy springs from the contract of membership, and is a matter of internal regulation. With such matters courts are loth to deal, and will take jurisdiction only when compelled to do so. But it has been held that where a member appears in the relation of a creditor of the society, he is not bound to present his claim to the tribunals of the society unless such provisions stipulate expressly that he must first submit his claim to the tribunals of the society, before seeking to enforce it in the courts of the land. ’ ’ Niblack on Benefit Societies & Accident Insurance, p. 215, sec. 111.
In Boggess v. Buxton, and Republican Ex. Com. v. County Court, cited, this principle was applied to political organizations; and in Marcum v. Ballot Commissioners, 42 W. Va. 263, the court declined to recognize either of two contesting
As has been observed, there can be no well grounded distinction between the prevailing and the losing faction respecting the application for judicial relief. To recognize the former - and entertain it, over the objection of the latter, would necessarily imply judicial adoption of the procedure and conclusion upon which the advantage obtained rests. To do that either brushes aside and ignores the contentions underlying the remonstrance, as being immaterial, or compels the court to take cognizance of the disputes and determine them, under a system of rules, regulations and party law, the interpretation and application of which properly belongs to the party tribunals.
Of course there are limitations upon the powers of the
The statute invoked by the relator does not govern 'the rights involved here, nor empower the courts to determine them. Sec. 3 of the Act provides that “The various executive committees and' officers therof, now in existence, shall ■exercise the powers and possess the duties herein prescribed until their successors are chosen in accordance with this act. ’ ’ It prescribes no rule or standard by which the courts can determine who constitute such committees, the very question on which this controversy hinges. When members of ■committees become elective under the statute prescribing ■qualifications; there will be such a standard. Eligibility will then depend upon conditions legally prescribed. Now it ■depends largely upon party usages and customs, and they •are judicially known not to 'be uniform in any sense. Precedents set by a state committee as to its own organization, membership or procedure may not obtain in a county, or •other inferior, committee. The practice in one county often differs widely from that in another. What was party law a few years ago may not be now. No legal rule nor any settled party practice enables any court to say whether an elected •county committee may increase its membership; whether a member added, made chairman and given a casting vote, may be counted to make a quorum; whether a member must reside in the district for which he was elected, or in the ■county or state; or whether his absence temporary or permanent, in the sense of domicil, vacates his office or is ground for removal. When these memberships become statutory, as they will under the act, all such questions can be determined by the statute.
Sec. 27 of the Act provides as follows: ‘ ‘ The state executive
Upon these principles and conclusions, the peremptory writ of mandamus prayed for is refused.
Peremptory writ refused.