Adams v. Londeree

• Citation: 139 W.Va. 748,83 S.E.2d 127
• Decision Date: 27 July 1954
• Docket Number: No. 10670,10670
• Court: Supreme Court of West Virginia
• Parties: ADAMS et al. v. LONDEREE et al.

Page 127

83 S.E.2d 127

139 W.Va. 748

ADAMS et al. v. LONDEREE et al.

No. 10670.

Supreme Court of Appeals of West Virginia.

Submitted March 30, 1954.

Decided April 2, 1954.

Opinion Filed April 23, 1954.

Dissenting Opinion July 27, 1954.

Syllabus by the Court

1. Any officer or person upon whom any duty is devolved by Chapter Three of the Code, as amended, may be compelled to perform the same by writ of mandamus.

2. Where a person nominated to office is required by law to possess certain qualification at the time of his election, mandamus will lie to determine the qualification.

3. The 1917 Act of the Legislature, Chapter 5, Second Extraordinary Session, consenting to the acquisition of territory for certain defined purposes, does not ipso facto vest exclusive jurisdiction in the United States for all purposes, as to territory acquired by the United States pursuant to such consent.

4. Territory ceded to the United States by this State, for purposes defined in Clause 17 of Section 8, Article I, United States Constitution, pursuant to the consent statute enacted by the 1917 Legislature, Chapter 5, Second Extraordinary Session, remains part of the territory of this State, and subject to the sovereignty and laws of this State, except in so far as State sovereignty or laws conflict or interfere with the use of such territory by the United States for the purpose or purposes for which acquired.

5. A resident within the United States Naval Reservation at South Charleston, acquired by the United States pursuant to the Consent Act of the 1917 Legislature, Chapter 5, Second Extraordinary Session, being otherwise qualified, is entitled to vote at a municipal, county, or State election, and to hold a municipal, county, or State office.

H. D. Rollins, Charleston, for relators.

Charles M. Love, Jr., Martin C. Bowles, Charleston, for respondents.

GIVEN, President.

In this original proceeding in mandamus, the relators, W. P. Adams, Homer Morris, Duffy Mullins, J. C. Wells and J. H. Young, prayed that defendants S. H. Mullins and Willis A. Taylor, ballot commissioners of the City of South Charleston, be directed to strike the name of defendant Joseph W. Londeree, Democratic candidate for Mayor of South Charleston, from the ballot for a general election to be held for that city, and that defendant Paul E. Wehrle, clerk, and as such registrar of voters for Kanawha County, wherein that city is situated, be directed to strike the name of Joseph W. Londeree from the voters' registration records. Relators prosecute this action as residents and voters of the City of South Charleston, for the benefit of themselves and all other residents and voters of South Charleston.

The questions posed having been decided by the Court, an order was heretofore entered denying the writ. This opinion is filed in accordance with an announcement made at the time of the entry of the order.

The proceeding was heard upon the petition of relators; the demurrer and answer thereto of defendant Londeree; the answer thereto of defendant Paul E. Wehrle, clerk; the demurrer and replication of relators to the answer of defendant Londeree; the depositions taken and filed on behalf of relators; and upon briefs and oral arguments.

In the certificate of Londeree announcing his candidacy for the nomination of mayor, he gave his address 'as 32 Rhodes Avenue in said City'. The petition alleges 'that the said address, and it was the correct address of said Londeree at said time, is within the bounds of said United States Naval Reservation'. The answer of Londeree 'admits that at the time of his nomination and for several years prior thereto he was a resident of that part of the City of South Charleston included in the United States Naval Reservation and that he did give his address as 32 Rhodes Avenue in said city and that such address is correct and that said address is within the bounds of the said United States Naval Reservation * * *'.

Londeree is not a member of the armed forces and is not a civilian employee of any agency or department of the United States Government. At the time of filing the certificate of candidacy he, with his family, occupied one of a number of residential units, constructed and maintained by the United States upon the reservation, leased or rented to civilians, for a consideration, when not required for use of military personnel. The naval reservation is wholly within the exterior boundary lines of the City of South Charleston. Some time after Londeree announced his candidacy for nomination for mayor, he moved from the reservation to an address within the City of South Charleston, but he will have resided outside of the reservation less than sixty days next preceding the date fixed by law for the holding of the election.

Defendants contended that the extraordinary remedy of mandamus would not lie for the purpose of determining the qualification of defendant Londeree, prior to his election, since it was not certain that he would be elected. In other words, they contend that the institution of the proceeding was premature. We are of the opinion, however, that the institution of the proceeding was not premature.

Section 9 of the city charter provides that 'No persons shall be eligible to the office of Mayor, Treasurer, Recorder, or Councilman, unless at the time of his election he is legally entitled to vote in the town election for a member of the Common Council, and he was for the preceding year assessed with taxes upon real or personal property within said town of the assessed aggregate of at least One Hundred ($100.00) Dollars and shall have actually paid the taxes so assessed.' It is significant that the qualifications must exist 'at the time of his election', not at some future time or upon the happening of some future event. The provision is clear. It should be applied as written. In State ex rel. Morrison v. Freeland, W.Va., 81 S.E.2d 685, 686, we held: '2. Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election.' This being true, since the contest can not arise until after the election, to hold that mandamus can not be invoked in such cases as to a nominee for office would have the effect of denying any remedy prior to the election and, where the candidate elected could not qualify as to the office sought, would have the effect of rendering the election as to that office a nullity. Surely no such result could have been contemplated. It would not tend to induce orderly elections. In State ex rel. Harwood v. Tynes, W.Va., 70 S.E.2d 24, and in State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W.Va. 496, 103 S.E. 399, we did hold that: 'When a candidate for a nomination in a primary election files a certificate with the clerk of the circuit court, from which it appears that he is eligible to hold the office for which he is a candidate, the board of ballot commissioners have no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office. The duty of said board is to place his name upon the ballot and allow the question of his eligibility to be determined by a competent tribunal, should he be elected thereto.'

The question involved there, however, related to the jurisdiction of the board of ballot commissioners to determine the qualification of a candidate in a primary election, where the certificate of candidacy was regular and showed on its face that the candidate was qualified to hold the office for which he sought the nomination. No jurisdiction to determine such question was vested in the board of ballot commissioners by any statute. Therefore, it had no jurisdiction to make any independent investigation in order to determine such qualification. But lack of jurisdiction of such a board cannot be determinative of jurisdiction of a court having original jurisdiction in mandamus. Defendant members of the board of ballot commissioners hold office by virtue of the election laws, and Code, 3-5-41, provides that 'Any officer or person, upon whom any duty is devolved by this chapter [on Elections], may be compelled to perform the same by writ of mandamus.' While the chapter mentioned relates particularly to elections other than municipal elections, undoubtedly the provision quoted applies to municipal elections, by virtue of Code, 8-3-15, dealing with municipal elections. It must not be overlooked, however, that a relator in such a proceeding must show a clear legal right, and that courts are not warranted in issuing the writ unless a clear legal right exists.

This Court has carefully pointed out in its opinions that the wording of a particular statute relating to qualifications of candidates is controlling in determining the time when the qualifications must exist. The question was recently considered in State ex rel. Morrison v. Freeland, supra, and need not be further considered here. See Slater v. Varney, 136 W.Va. 406, 68 S.E.2d 757, 70 S.E.2d 477; Dryden v. Swinburne, 20 W.Va. 89.

The further contention is made by defendants that the remedy of an election contest afforded by Code, 3-9-1, instituted and prosecuted before a city council as to city officials, is adequate for determination of qualifications of a candidate, and that any question as to qualification of Londeree lies exclusively within the jurisdiction of the city council of South Charleston. They rely on cases like State ex rel. Harwood v. Tynes, supra; State ex rel. Jones v. Ingram, 135 W.Va. 548, 63 S.E.2d 828; Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880; and Martin v. White, 74 W.Va. 628, 82 S.E. 505.

It is true, as pointed out in some of the cases just cited, that in some instances the qualification of a candidate may be determined in an election contest proceeding. Code, Chapter 3, Article 9. To...