Boggess v. Buxton, Clerk.
| Citation | 67 W.Va. 679 |
| Court | Supreme Court of West Virginia |
| Decision Date | 05 October 1910 |
| Parties | Boggess v. Buxton, Clerk. |
The Supreme Court of Appeals has jurisdiction of the writ of mandamus, though at the adoption of the constitution such writ did not apply to a subject matter to which it has since been made applicable by statute.
The legislature has power to formulate, prescribe, modify and alter remedies, so its action does not impair the obligation of contracts or vested property rights.
Section 89 of chapter 3 of the Code (1906) is not contrary to the constitution, Art. VIII, section 3, in giving the Supreme Court of Appeals jurisdiction by mandamus to compel election officers to legally perform their duties.
In absence of statute, courts do not exercise jurisdiction to interfere or control, in matters purely political, pertaining to the management and proceedings of a political party.
When the state and congressional committees and a congressional convention and a state senatorial convention of a political party have had the claims of two contesting county executive committees to represent the party before them for decision, and have decided that one of them is, and the other is not, the true and legitimate county executive committee, the courts will not review such decisions, but will hold it conclusive in matters before the courts involving the question which is the lawful county executive committee.
It is the duty of a clenk of a circuit court to appoint as a ballot commissioner to represent a political party on the board
(Opinion not filed until October 18, 3910.)
of ballot commissioners a person designated by the chairman of tbe county executive committee, when that particular committee has been held and recognized as the true and legitimate committee in contests between two competing committees before the state and congressional committees and the congressional and senatorial nominating conventions, involving the right of such county committees to act for the party.
The clerk of a circuit, court has not sole and final power to decide which of two persons designated by the chairmen of two competing county executive committees of a political party for appointment as ballot commissioner; but his action is subject to review and control by the courts. He can be compelled by mandamus to appoint the proper person.
[poffenearger. judge, absent.]
Application of A. L. Boggess for a writ mandamus against Charles Buxton, clerk, and others.
Writ Awarded.
John L. Whitten and B. H. Blagg, for petitioner. George E. Price and W. M. 0. Dawson, for respondents.
The executive Committee of the Bepublican Party in Mason County issued calls, on the 19th day of May, 1910, for primary elections, one for selection of delegates to represent the Bepublicans of that county in the Bepublican Convention of the Fifth Congressional District; the other for the nomination of candidates for the House of Delegates and county officers, the selection of delegates to a senatorial convention, and the election of members of a county central republican committee. One of these calls caused dissatisfaction and dissension within the party, and the result was that the central committee met, and reorganized the county executive committee, removing all members, except one, and appointed new men in their places. The central committee, when full, consists of ten members, one from each magisterial district; but John S. Brannon, a member of that committee, being dead, five members claiming right as a majority of nine, appointed Bobt. 0. Boggess in Brannon's place as a member of the central committee, making the corn- mittee to consist of ten members; and then such central committee, by a vote of six, including Boggess, made up said new executive committee. This reorganized executive committee called primary elections for the selection of delegates to the congressional convention, and for the selection of a new central committee and nomination of a county ticket, and issued a call for a mass convention to name delegates to the senatorial convention; and the result was that there were two competing sets of delegates to the congressional and senatorial conventions, and two competing nominated sets of candidates for the House of Delegates and county officers, and two central committees. The republican committee of the fifth congressional district met before the primaries were held to determine which of the two competing primary election calls was the legitimate one, and it was decided that the action of the central committee, in revising and changing the call for a primary election of congressional delegates was valid, and that the call of the old executive committee was not valid, having been altered and partially revoked by the central committee, and the call of the reorganized committee for such primary election was binding, and that the action of the central committee in removing members of the old county executive committee and appointing hew members was binding. Of this meeting the old committee had notice. The congressional convention which later assembled appointed a committee on credentials, and it decided in the same way, seating the delegates selected under the call of the reorganized committee, and its action was confirmed by the convention, and the delegates claiming under the primary called by the new executive committee were seated. The delegates selected under the call of the old committee appeared before the credentials committee.
This contest went also before the Republican State Committee, and was heard by it, and its decision was that the new county executive committee was the true one, authorized to act as it did. The reorganized executive committee called a county mass convention to send delegates to the republican convention for the nomination of a candidate for the State Senate for the fourth district, and delegates were by it appointed. A contest was made between these delegates and those named at the primary election called by the old committee, and this con- test was decided by the committee on credentials m favor of the delegates chosen by said mass convention, the committee reporting to the convention that after hearing all the evidence presented by the contesting delegates such was their decision, and the convention unanimously adopted the report.
Under the call of the reorganized executive committee for the county primary election, a new central committee was elected, and that committee elected a new executive committee, making Chas. W. Juhling chairman thereof. Under the call of the old committee for a like primary election, another alleged new central committee was elected, which elected another alleged executive committee, making R. E. Mitchell chairman thereof.
Though not important under the principles controlling our decision, more votes were polled in each of the two primaries held under the calls of the reorganized committee than in the primaries held under the calls of the old committee.
Under Code (1906) ch. 3, section 32, Juhling designated, in writing, to Charles Buxton, clerk of the circuit court of Mason county, A. L. Boggess for appointment by said clerk as a ballot commissioner to represent the republican party on the board of ballot commissioners, and Mitchell designated F. G. Musgrave for ballot commissioner. Juhling and Boggess demandeel of Buxton that Boggess be appointed; but Buxton refused to recognize Juhling as chairman of the executive committee^ authorized to designate a ballot commissioner, and, on the contrary, recognized Mitchell as the lawful chairman, and under his designation appointed Musgrave. Boggess asks from this Court a writ of mandamus to compel Buxton as clerk to appoint him as such ballot commissioner.
This case has been very ably and elaborately argued, and, for this reason, as well as for the principles involved, requires a full statement of the reasons for our decision.
The first question arises from the contention of defendant's counsel that this Court has no jurisdiction to entertain this case. This contention rests on the fact that, though the constitution adopted in 1872 gives the Supreme Court original jurisdiction "in cases of mandamus", it must be the wirt as it existed then, the writ having only the scope and remedial operation which it then had, applicable only to such subject matters as it then applied to, and that the legislature could not enlarge its remedial efficacy and make it cover subjects which the writ did not then embrace. It was argued that this Court held in Marcum v. Ballot Commissioners, 42 W. Va. 263, that whilst mandamus, before the act of 1893, re-enacting section 89 of chapter 3 of the Code, would not cover a case involving the exercise of judicial discretion, yet that act, as to election matters, enlarged its operation and applied the writ to all duties of election officers, compelling them to do duties, though involving discretion and judgment; and that this enlargement of the function of the writ renders the act unconstitutional, as applied to this Court. It was contended that this holding was either wrong, or the act so invalid. We do not see our way clear to disregard that case. It was argued that the clerk of the circuit court, in deciding which of two contesting nominees for appointment as ballot commissioner, must inquire into facts, and pass judicially on the matter, and therefore mandamus would not lie. It may be questioned whether his duty is not purely ministerial, and so mandamus lies; likely it is. In Dunlevy v. County Court, 47 W. Va. 513, it is held that the act of 1893 intended to take away all judicial functions from election officers and...
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