145 W. Va. 435 | W. Va. | 1960
Lead Opinion
In this original proceeding in mandamus, instituted in this Court on June 7, 1960, the petitioner, Minter L. Wilson, a candidate for delegate to the 1960 Democratic National Convention from the Second Congressional District of West Virginia, seeks a writ to compel the defendants, The County Court of Barbour County, Bay Martin, Woods Poling and Bobert McDaniel, Commissioners of The County Court of Barbour County, constituting the hoard of canvassers of Barbour County for the primary election held on May 10, 1960, to reconvene as such board of canvassers, to find and declare invalid all votes, and not to count any vote, cast in that county at that primary election for the two offices of delegates from that congressional district to the 1960 Democratic National Convention, including the votes cast for the defendant Virginia Williams, who was also a candidate for delegate to the Democratic National Convention, and to certify the results of such primary election to show that no votes were cast in Barbour County for any of the candidates for the two offices of delegates from that congressional district to the 1960 Democratic National Convention.
Upon the petition and the thirteen exhibits filed with it, this Court issued a rule returnable June 21, 1960, and at that time this proceeding was heard and submitted for decision upon the demurrer, the answer and the amended answer of the defendants The County Court of Barbour County and its members constituting the board of canvassers of that county, upon the demurrer and the answer of the defendant Virginia Williams and her motion to strike the exhibits filed with the petition, upon the replies of the petitioner to the answers of the defendants, and upon the oral arguments and the written briefs of the attorneys of the respective parties.
By order entered June 27,1960, this Court held that the petitioner was not entitled to a writ of mandamus as prayed for and refused to award such writ; and this opinion is now announced for the purpose of stat
As shown by the allegations of the petition and the exhibits filed with it the petitioner complied with the requirements necessary to enable him to have his name placed upon the official ballots to be used in all of the fifteen counties, including Barbour County, in the Second Congressional District at the primary election on May 10, 1960; his name and the names of eleven other candidates for the two offices of delegates from the Second Congressional District were included in the list of candidates certified by the secretary of state to the clerk of the circuit court of Barbour County; and his name and the names of ten other candidates for those two offices, one candidate having previously withdrawn his name from the official ballots, were placed on the official ballots prepared and sent to the printer by the board of ballot commissioners of Barbour County and on the proof of such official ballots prepared by the printer and transmitted to the board of ballot commissioners. It also appears from the exhibits filed with the petition that at the primary election the petitioner received no votes in Barbour County; that in the fourteen other counties Robert E. Hedrick received 8112 votes, the petitioner received 7534 votes and the defendant Virginia Williams received 7441 votes; that if the votes cast for the candidates for the two offices in Barbour County are included in the total vote, Hedrick received 9037 votes, the highest number of votes, Virginia Williams 7672 votes, the second highest number of votes, and the petitioner 7534 votes, or the third highest number of votes; and that unless the votes cast for all of the candidates for the two offices at the primary election in Barbour County are rejected and excluded from the total number of votes cast in all of the fifteen counties of the district, Hedrick and the defendant Virginia Williams, instead of Hedrick and the petitioner, have been elected as the delegates to the Democratic National Convention from the Second Congressional District.
In support of the action of the board of canvassers in certifying such ballots the defendants contend that the board of canvassers is without authority to open the packages of ballots or to count the folded ballots in canvassing the returns of a primary election, under Section 20, Article 4, Chapter 3, Code, 1931, which, to the extent here pertinent, provides that when any primary election is held in a county or district, the county court sitting as a board of canvassers shall meet and publicly, carefully and impartially ascertain the result of such election in the county and district and election precincts, and cause to be prepared .and recorded, in the primary election precinct record
As previously indicated, the defendant Virginia Williams has filed her written motion to strike from the record the exhibits filed with the petition in this proceeding. This motion is not well founded and is denied. Though a mandamus proceeding is a proceeding at law, Newman v. Bailey, 124 W. Va. 705, 22 S. E. 2d 280; State ex rel. Matheny v. The County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959; Fisher v. City of Charleston, 17 W. Va. 595, and though, in an action at law, as distinguished from a suit in equity, exhibits may not be filed with a pleading in such action, in the absence of statutory authority or rule of court, Esso Standard Oil Company v. Kelly, 145 W. Va. 43, 112 S. E. 2d 461; Case v. Shepherd, 140 W. Va. 305, 84 S. E. 2d 140; Cawley v. The Board of Trustees of the Firemen’s Pension or Relief Fund of the City of Beckley, 138 W. Va. 571, 76 S. E. 2d 683; State ex rel. Emery v. Rodgers, Judge, 138 W. Va. 562, 76 S.E. 2d 690; State ex rel. Medley v. Skeen, Warden, 138 W. Va. 409, 76 S. E. 2d 146; Mustard v. The City of Bluefield, 130 W. Va. 763, 45 S. E. 2d 326; City of Beckley v. Craighead, 125 W. Va. 484, 24 S. E. 2d 908; Vorholt v. Vorholt, 111 W. Va. 196, 160 S. E. 916; Laurensi v. James E. Pepper Distilling Company, 90 W. Va. 794, 112 S. E. 177; Hall v. Harvey Coal and Coke Company, 89 W. Va. 55, 108 S. E. 491; State ex rel. Pingley v. Pingley, 84 W. Va. 433, 100 S. E. 216, by Section 8, Rule II, of this Court, promulgated
This Court has held in numerous cases that mandamus is the proper remedy to require a board of canvassers to perform the duties imposed upon it by law. State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416; State ex rel. Fanning v. The County Court of Mercer County, 129 W. Va. 584, 41 S. E. 2d 855; State ex rel. Daugherty v. The County Court of Lincoln County, 127 W. Va. 35, 31 S. E. 2d 321; State ex rel. Revercomb v. Sizemore, 124 W. Va. 700, 22 S. E. 2d 296; Marquis v. Thompson, 109 W. Va. 504, 155 S. E. 462; State ex rel. Simon v. Heatherley, 96 W. Va. 685, 123 S. E. 795; Sanders v. The Board of Canvassers, 79 W. Va. 303, 90 S. E. 865; Kirkpatrick v. Deegans, 53 W. Va. 275, 44 S. E. 465; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690; Dunlevy v. County Court of Marshall County, 47 W. Va. 513, 35 S. E. 956. It is also the settled law of this State, announced in many decisions of this Court, that a board of canvassers, being cre
As the defendants acting as the board of canvassers are not authorized or empowered to open the sealed package of ballots or to count or consider the validity of the ballots cast for the two offices of delegates to the national convention, the action of the board of canvassers in refusing to reject such ballots was in all respects correct and proper and will not be disturbed by this Court in this original proceeding in mandamus. Mandamus will not be awarded to compel the board of canvassers to perform an act which it is without lawful authority to perform or to consider and pass upon matters which by law it does not have the power to determine; and the original jurisdiction of this Court in mandamus does not extend beyond its authority to command the board of canvassers to do that which it is required by law, but has refused, to do. State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416; State ex rel. Johnson v. Given, 102 W. Va. 703, 136 S. E. 772; State ex rel. Matheny v. The County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959. See also State ex rel. Ryan v. Miller, 82 W. Va. 490, 96 S. E. 791; Hall v. Staunton, 55 W. Va. 684, 47 S. E. 265.
Inasmuch as the defendants the county court and its members acting as the board of canvassers for the
The record in this proceeding shows clearly that the petitioner did not at any time demand a recount of the votes cast at the primary election. His motion, made at the meeting of the board of canvassers on May 17, 1960, four days after the board of canvassers had completed the canvas of the returns of the election, had declared and recorded the vote, and had finally adjourned, and seven days after the primary election was held on May 10, 1960, as shown by the exhibits filed with his petition, merely “brought to the attention of the Board of Canvassers that his name was omitted from the ballot in Barbour County for Delegate to the Democratic National Convention of the Second Congressional District; that the names of all other candidates for said office appeared upon the said ballot, except that of Minter L. Wilson, and the said Minter L. Wilson demanded that no votes be counted that were cast in Barbour County for any candidate for Delegate to the Democratic National Convention from the Second Congressional District, by reason of the fact that the voters’ choice could not be determined from said ballots because the name of Minter L. Wilson as candidate for the before mentioned office did not appear upon said ballots.”
As the defendants, The County Court of Barbour County and its members, acting as a board of canvassers were without power or authority to grant the relief sought by the petitioner or to determine the validity of the ballots cast for the two offices of delegates to the national convention, and as the action of the board in refusing to reject such ballots was in all respects correct and proper, it is unnecessary to consider or determine the contentions of the petitioner that the ballots cast at the primary election for the candidates for the two offices of delegates to the national con
For the reasons stated the writ prayed for in the petition was denied by this Court by its order entered June 27, 1960.
Writ denied.
Concurrence Opinion
concurring:
Though I concur in the result reached in the opinion of the Court in this case, I dissent respectfully to that part of the opinion which is summarized in the sixth point of the syllabus. In my view of the case, the decision is predicated upon, and was meant to be predicated upon, the propositions stated in the seventh and eighth points of the syllabus; and the propositions embodied in the sixth point of the syllabus are included somewhat unnecessarily, having the effect of fortifying a comparatively recent abdication or renunciation of this Court’s jurisdiction, authority and duties in mandamus proceedings instituted in pursuant of Code, 3-5-41.
The sixth point of the syllabus reaffirms but enlarges the extent of the second point of the syllabus of the case of State ex rel. Bumgardner v. Mills, 132 W. Va. 580, 53 S. E. 2d 416. Among prior decisions of this Court which are cited as precedents in the present case and in the Bumgardner case, only one is even remotely in point for the sweeping statements for which they are cited.
In the case of State ex rel. Matheny v. County Court of Wyoming County, 47 W. Va. 672, 35 S. E. 959, a case not dealing with an election, the Court in the fifth, sixth and seventh points of the syllabus held:
“A mandamus will not go to compel a party to violate an injunction, even though the applicant for mandamus is not a party to the injunction.
*448 “A mandamus will go only to secure or protect a clear legal right, and not to accomplish a wrong, or the violation of the constitution.
“Mandamus will not go, if it would prove fruitless or impossible of performance, or beyond the power or means of the party to whom it is directed to perform its commands.”
The single point of the syllabus of the ease of Hall v. Staunton, 55 W. Va. 684, 47 S. E. 265, is as follows: “The extraordinary writ of mandamus will never be issued in any ease where it is unnecessary, or where, if used, it would prove unavailing, fruitless and nugatory. The court will not compel the doing of a vain thing. A mere abstract right, unattended by any substantial benefit to the party asking mandamus, will not be enforced by the writ.”
In the case of State ex rel. Ryan v. Miller, 82 W. Va. 490, 96 S. E. 791, a case not involving an election, the second point of the syllabus is as follows: “A writ of mandamus will not be issued to compel the performance of an act which would not result in any benefit to the party seeking the writ.”
In the case of State ex rel. Johnson v. Given, 102 W. Va. 703, 136 S. E. 772, the legal proposition here in question is not embodied in the syllabus. Without any citation of authority or precedent, the Court in the body of the opinion at page 709 stated: “This court has no original jurisdiction except to command the inferior tribunal to do what upon the record it should do and has refused to do.” (Italics supplied.) So far as I am able to ascertain, this is the sole basis for the sweeping statement in the second point of the syllabus in the Bumgardner case, which was enlarged and extended in the sixth point of the syllabus in the present case. Neither syllabus point is warranted even by the language inserted so casually in the case of State ex rel. Johnson v. Given, supra. That language speaks merely of what the inferior tribunal “should do and has refused to do.” (Italics supplied.)
In the Bumgardner ease at page 589 of the opinion, without citation of authority therefor, there was inserted something new in the decisions of this Court as follows: “Mandamus will not be awarded to require the person to whom it should be directed to per-from an act, which by law he is not required or empowered to perform.” That is a far cry from saying that mandamus will not lie to compel an unlawful act, one against public policy or one in violation of an injunction.
The seventh point of the syllabus in the present case points out that when a canvassing board completes its duties and adjourns, it is functus officio and without power to reconvene. At this very term the Court required such a board of canvassers to reconvene, though obviously they had no authority to do so in the absence of judicial command. State ex rel. Joyce v. Bivens, 145 W. Va. 545, 114 S. E. 2d 901. That in itself, in my view, is at variance with the sweeping language of the sixth syllabus point in this case.
My views in this connection have been stated in some detail in the dissenting opinion in the case of State ex rel. Schenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788, and in the majority opinion in the case of State ex rel. Zickefoose v. West et al., decided at this term of court, 145 W. Va. 498, 116, S. E. 2d 398. In the latter case, it is pointed out that mandamus under Code, 3-5-41, has been broadened in scope in order to compel legally and expeditiously the performance of both ministerial and judicial duties imposed in relation to elections under the provisions of Chapter 3 of the'Code.
I do not feel that we should be assiduous in our efforts to avoid the adjudication of the pressing con