Brannon v. Perkey.

• Decision Date: 17 October 1944
• Docket Number: (No. 9576)
• Citation: 127 W.Va. 103
• Court: West Virginia Supreme Court
• Parties: Linn Mapel Brannon v. John B. Perkey et al.

127 W.Va. 103

Linn Mapel Brannon

v.John B. Perkey et al.

(No. 9576)

Supreme Court of Appeals of West Virginia.

Submitted September 26, 1944.

Decided October 17, 1944.

1. Elections

Where no nomination has been made for an elective office to be filled at a municipal election to which the general election laws of the State are applicable, and only a small number of voters, who otherwise participated in said election, write the names of eligible and qualified persons on official ballots so as to show an intention to cast a vote for the named persons and the designated office, the person whose name is so written on the greatest number of ballots voted is duly elected to such office.

2. Mandamus-

Sections 17 and 18, Chapter 90, Acts of the Legislature, 1913, (Charter of the City of Weston) are mandatory; and a person elected to the office of city attorney of the City of Weston who did not take and subscribe an official oath within ten days of the day on which the election was held is not entitled to a writ of mandamus to compel his induction therein.

Error to Circuit Court, Lewis County. Petition by Linn Mapel Brannon against John B. Perkey and others, as Mayor, City Clerk, and Members of the Common Council of the City of Weston, for a writ of mandamus requiring defendants to reconvene as a canvassing board insofar as the election returns pertained to the office of city attorney and to issue relator a certificate of his election, to that office. The circuit court issued the writ, and defendants bring error.

Reversed and remanded with directions.

Herbert M. Blair, for plaintiffs in error. Haymond Maxwell, for defendant in error.

Lovins, Judge:

This writ of error calls for answers to two questions: Was relator, Linn Mapel Brannon elected to the office of city attorney of The City of Weston? If so elected, did he take the oath of office and file the bond required by the charter of said city in the manner and within the time prescribed by law?

An election was held in The City of Weston on June 1, 1943, for the purpose of electing municipal officers for said city. The charter provides for the election of a city attorney, but no person was nominated for that office. The ballots carried the names of certain persons who apparently had been nominated for election to the various municipal offices on the Democratic and Republican tickets, but no one having been nominated on either ticket for the office of city attorney, blank spaces were provided in each column of the ballot.

Thirteen hundred eighty votes were cast for the two nominees for the office of Mayor, and varying numbers of votes were cast for other municipal officers. Twentyfour voters wrote the name of relator in the blank spaces on the ballots, and the names of seven other persons were also written in the blank spaces on thirteen other ballots. In ascertaining the result of the election the canvassing board certified that relator received twenty-four votes and ignored the other persons whose names had been written on the ballots. However, the seven persons above- mentioned make no claim to the office of city attorney. The results of the election were canvassed and ascertained on June 7, 1943, but no certificate of result was mailed to the relator and, in fact, no certificates of results were mailed to any person. Relator was informed by the city clerk on June 10, 1943, that he had received the highest number of votes for the office of city attorney, but he neither filed a bond nor attempted to take the oath of office until June 30 following, at which time he appeared before the city clerk of the City of Weston, subscribed to a paper which is in form an oath of office and filed with said clerk a bond in the penalty of one thousand dollars with surety thereon.

The Common Council of The City of Weston at a meeting held on July 6, 1943, entered an order reciting that no person whose name was written on the ballots cast at the last election received more than twenty-seven votes out of a total thirteen hundred eighty votes cast at said election, and also declared that a vacancy existed in the office of city attorney, and reserved the right to fill the same by appointment. The city clerk was directed to notify relator in writing by registered mail of the action of the council as above set forth.

On petition of relator the Judge of the Circuit Court of Lewis County in vacation awarded a rule in mandamus, directed to John B. Perkey, Emma V. Crayton, Pressly M. Sherrard, Hobart W. Pyle, G. Clyde Boram, J. Carl Hinzman, Ira M. Spurgeon, who are the mayor, city clerk and members of the Common Council of the City of Weston, and the City of Weston in its corporate capacity. All respondents, except G. Clyde Boram, who has made no appearance, demurred to the petition, and filed their answer, to which pleading relator demurred. The demurrer of respondents to the petition was overruled and the demurrer of relator to the answer was sustained as to paragraphs V, VI, XVI and XVII of the answer.

Testimony was taken by deposition, from which it appeared that relator was informed by the city clerk as to the number of votes he had received for the office of city attorney as hereinbefore stated; that relator read the two local newspapers, both of which carried an account purporting to show that relator had received a greater number of votes than any other person for city attorney by the "write in" method.

Upon the foregoing facts the Circuit Court of Lewis County awarded a peremptory writ of mandamus requiring the mayor, the city clerk, and the members of the Common Council of the city of Weston to reconvene as a canvassing board to consider the returns of the municipal election held on June 1, 1943, in so far as said returns pertain to the office of city attorney, and to issue relator a certificate of his election to said office, and further commanding the respondents to convene as Common Council and rescind its order entered on July 6, 1943, declaring said office vacant.

Respondents vigorously maintain: (1) That relator was not elected to the office of city attorney of the City of Weston, no nomination for that office having been made, and that the number of ballots on which relator's name was written should be ignored as being so disproportionate to the total number of ballots cast at the general election that there was in law and in fact no election held for the office of city attorney; (2) that even if elected relator failed to take an oath of office and file an official bond within the time prescribed by the charter of the City of Weston; and that by reason of such failure his right to the office no longer exists.

Before discussing the controlling questions we advert to the question of adoption of the provisions of Chapter 8 of the Code, relative to the time of holding municipal elections. We find nothing in the record showing that the Common Council of the City of Weston has adopted the Code provisions above mentioned. It is asserted that an ordinance was passed but the passage and present existence of such ordinance is not established. This proceeding having been commenced in the Circuit Court of Lewis County, we do not take judicial notice of the ordinance of the City of Weston relative to the time of holding munici- pal elections and the commencement of the terms of office of the elected officials of that municipality. Boyland v. City of Parkersburg, 78 W. Va. 749, 756, 90 S. E. 347.

If both questions here for decision are affirmatively resolved, the relator has a clear legal right to the relief granted by the trial court; otherwise such right does not exist and the award of the peremptory writ was error. It is provided by the Charter of the City of Weston: "* * * All elections in said city shall be held and conducted, and the results thereof certified, returned and finally determined as nearly as practicable in accordance with the laws in force in this state relating to general elections by the people at the time such election is held; * * *."

In accordance with the above-quoted statute, we measure the validity and effect of the votes here claimed by relator by the Constitution and pertinent statutes of this State relating to general elections.

The Legislature has provided in detail by primary elections and other methods for the making of nominations for the various officers of the State and its political subdivisions, and by so doing has required certain formalities to be observed by persons who desire their names printed on the official ballot as the nominee of an existing political party or group. Section 12 above quoted, makes no reference to statutes governing primary elections, so that in determining the questions at issue we consider only those statutes which pertain to general elections and which were in effect on the date of the election.

May a voter cast a valid ballot for a person who has not been nominated by one of the statutory methods? The right to vote is not an absolute, natural and inherent right. Booten v. Pinson, 77 W. Va. 412, 422, 89 S. E. 985; State v. Edwards, 95 W. Va. 599, 122 S. E. 272. The qualifications of a voter are measured by the provisions of Section 1, Article IV of the Constitution, and cannot be increased or diminished by legislative enactment. State v. Edwards, supra. A vote shall be cast by ballot. Section 2, Article IV, Constitution. Enactment of laws providing for the registration of voters is enjoined upon the legislature. Section 12, Article IV, Constitution. No statutory provision relative to general elections has been found which indicates a legislative purpose to require a voter to cast his ballot for persons regularly nominated by primary election or other statutory method. It is our thought that a voter should be left free and untrammeled in selecting the person for whom he casts his vote, and no expression contrary to that position is found in the organic or statutory provisions now in effect in this jurisdiction.

If no...