Morris v. Com&rs

• Decision Date: 12 November 1912
• Citation: 71 W.Va. 180,76 S.E. 446
• Court: West Virginia Supreme Court
• Parties: MORRIS et al. v. BALLOT COM'RS.

76 S.E. 446

71 W.Va. 180

MORRIS et al.

v.BALLOT COM'RS.

Supreme Court of Appeals of West Virginia.

Nov. 12, 1912.

(Syllabus by the Court.)

Elections (§ 143^*)—Certificate of Nomination—New Party.

Qualified voters may by certificate nominate a candidate for public office for a place on the party election ticket of a party not participating in the last election, and thus not entitled to nominate by primary election or convention, though such voters are persons whose past political proclivities attached them to another competing party. It is the duty of ballot commissioners to put the name of such candidate on the ticket or column assigned to such new party on the ballot sheet, to be used in the election, for the office for which he was nominated.

[Ed. Note.—For other cases, see Elections, Cent. Dig. § 121; Dec. Dig. § 143.*]

Application by P. D. Morris and others for a writ of mandamus to W. J. Postlethwait, clerk, and others. Writ awarded.

Thos. H. Cornett and Thos. P. Jacobs, both of New Martinsville, for petitioners.

J. B. Sommerville and Chas. McCamic, of Wheeling, for respondents.

BRANNON, P. This is a petition by P. D. Morris and other voters of Wetzel county for a writ of mandamus to compel the ballot commissioners of that county to place the name of Morris on the ballot sheet to be used at the general election to be held on the 5th day of November, 1912, in the column of that sheet assigned to the Progressive party.

The Progressive party is a new party which did not exist at the date of the last general election, having been organized by a national convention assembled at Chicago in August, 1912. It has an organization in this state and also its counties, having state and other subordinate committees, among them committees in the counties of Wetzel, Tyler, and Doddridge, and a committee for the judicial circuit composed of those counties. The Progressive party adopted as a device or emblem a picture of Theodore Roosevelt, and as a legend "Theodore Roosevelt, " to be printed at the head of the Progressive party's column on the ballot sheet for the coming election. Preparatory to the coming election, voters of those counties filed with the clerks of the circuit courts of those three counties, they being members of the ballot commissioners, certificates nominating persons as candidates for various offices on the ticket of the Progressive party; but theydid not nominate any one for judge of that circuit. There was no candidate for that office on the Progressive party ticket. In this state of things, voters in the circuit signed certificates nominating P. D. Morris as a candidate for that judgeship on the Progressive ticket, and filed them with the circuit court clerks of those counties. His name was placed on the Progressive ticket in Tyler and Doddridge counties; but the ballot commissioners of Wetzel county, upon a protest by persons claiming to be Progressive, refused to put his name on the Progressive party ticket in Wetzel county. The return or answer to the mandamus nisi in this court states that these certificates nominating Morris for judge do not represent truly the Progressive party; that a majority of those signing them are not members or supporters of the Progressive party, but are active and zealous Republicans, seeking in this way to secure the votes of Progressives for a Republican candidate; that they are enemies to the Progressive party and its principles and candidates; that those signers wrongfully adopted, in their certificates nominating Morris, the device and legend of the Progressive party; that Morris is not a Progressive, but a Republican, and the regular nominee for judge of the Republican party.

The Progressive party being a new party casting no vote at the last election, its committees are not known to the law as competent to call conventions or primary elections for nomination of candidates, because the statute confines those two modes of nomination to parties casting at the last election 3 per cent. of the entire vote of the state, or subdivision of the state, for which nominations are made. Code of 1906, c. 3, §§ 18 and 19. Hence, while the Progressive party has full right to participate in the election by presenting candidates to the...