Stewart v. Com&rs

Decision Date12 November 1912
Citation76 S.E. 448,71 W.Va. 246
CourtWest Virginia Supreme Court
PartiesSTEWART. v. BALLOT COM'RS.

(Syllabus by the Court.)

1. Elections (§ 144*)—Certificate of Nomination—Emblem of Political Party.

Though a certificate of voters nominating a candidate for public office does not contain the device or emblem of the political party to which it relates, yet, if it does contain the name of the party on whose ticket it is meant to be printed, it is not void, but valid. It is sufficient if the requirement of the emblem is safely and substantially otherwise complied with.

[Ed. Note.—For other cases, see Elections, Cent. Dig. § 126; Dec. Dig. § 144.*]

2. Elections (§ 141*)—Certificates of Nomination—Priority.

Where there are two competing certificates of voters nominating different persons as candidates for the same public office that which is signed by the requisite voters and first filed with the clerk of the circuit court takes precedence.

[Ed. Note.—For other cases, see Elections, Cent. Dig. § 121; Dec. Dig. § 141.*]

3. Elections (§ 141*)—Certificate of Nomination—Approval of Party Committee.

The county or other committee of a party not participating in the last election has no recognition in law and no power to approve or disapprove or direct the preparation by voters of a certificate nominating a candidate to be voted for at an election.

[Ed. Note.—For other cases, see Elections, Cent. Dig. § 121; Dec. Dig. § 141.*]

Petition by E. D. Stewart for a writ of mandamus to John L. Kinghorn and others. Writ denied.

Chas. McCamie and J. B. Sommerville, both of Wheeling, for petitioner.

Buckner Clay, of Charleston, Henry A. Nolte and Robert S. Judge, both of Wheeling, and John Marshall, of Parkersburg, for respondents.

BRANNON, P. E. D. Stewart seeks from this court a writ of mandamus to compel the ballot commissioners of Ohio county to strike from the column or ticket of the Progressive party on the ballot sheet to be used in the election on the 5th day of November, 1912, the name of Oliver S. Marshall, as a candidate for the state Senate, and to place the name of Stewart thereon for that position. John H. Evans had been nominated as a Progressive candidate for the state Senate; but he resigned his nomination, and thus created a vacancy for that place on the Progressive party ticket. Certain voters made a certificate and filed it with the clerk of the circuit court, nominating Marshall for the Senate on that ticket. Then other voters made a certificate nominating Stewart for the Senate on that ticket. Both certificates were filed with the clerk on the same day; the Marshall certificate first by some hours, and probably fully signed before the Stewart certificate. The ballot commissioners decided this contest by determining to place Marshall's name on the Progressive ticket

It is urged, against the right of Marshall to go on the Progressive ticket, that the certificate of his nomination is defective and void. One defect is that the device or emblem and legend adopted by the Progressive party are wanting; it containing no device or legend as required by Code of 1906, c. 3, § 23. Another defect is the failure of the certificate to give the name of the party which said candidate is to represent. See chapter 3, Supplement Code of 1909, serial section 36. The Code, c. 3, § 34, requires the state committee of every political party to adopt a device or emblem, and requires that the election ballot sheets shall have separate columns for the candidates of each party, and the name of the party and its device or emblem to be printed in its column. This device should there appear at the head of the party column to indicate to the voter the ticket he wishes to vote. What is the purpose of its presence in a certificate of nomination? To enable the board of ballot commissioners to put the candidate's name in his party column. Material provisions, I grant. But we must not require so literal or exact compliance with the election law as to defeat the right of voters to place their candidates before the people or vote for them. Section 24, providing the right of voters to nominate, gives the form of certificate, but says that it may be in that form or to its effect. The certificate in question has the head reading, "Certificate of Election. The Progressive Party." We conclude that this substantially performs the office of the device in indicating to the ballot commissioners the party column. The clerk's office contained the party device, and from it and otherwise they could safely locate the candidate on the sheet. Moreover, section 27 provides that if it shall appear to the clerk, by "satisfactory evidence, " that nominations have been made in conformity with the statute, and no certificate has been received, he shall include such nomination among the candidates on the ballot. Surely under this section, with this certificate before them, and other information attainable, if needed, the commissioners of ballots could locate this candidate on the ballot sheet in the proper column. And, besides, the commissioners did determine to put Marshall's name on the Progressive ballot, and it is not alleged that they erred in locating Marshall on the ballot sheet.

There were two competing nominations before the ballot commissioners—those of Marshall and Stewart. Which shall be chosen? Some principle of decision must be applied unless we can say that the decision of the ballot commissioners, even if we consider it erroneous, should be held final (which I doubt). The Marshall certificate had...

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