Dovel v. Bertram, Record No. 2985.
| Decision Date | 06 June 1945 |
| Docket Number | Record No. 2985. |
| Citation | 184 Va. 19 |
| Parties | I. R. DOVEL, ETC. v. H. W. BERTRAM, JUDGE. |
| Court | Virginia Supreme Court |
1. WORDS AND PHRASES — Ministerial — Ministerial Act. — A ministerial act can be defined to be one which a person performs in a given state of facts and prescribed manner in obedience to the mandate of legal authority without regard to, or the exercise of, his own judgment upon the propriety of the act being done.
2. WORDS AND PHRASES — Judicial — Judicial Act. — If the act to be performed is of a discretionary nature, then the act of the court or judge becomes a judicial act and not merely ministerial.
3. MANDAMUS — Office of Writ. — The office of the writ of mandamus is to compel inferior courts and officers to perform some particular duty incumbent upon them, which is imperative in its nature, and to the performance of which the relator has a clear legal right, without any other adequate specific legal remedy, to enforce it.
4. MANDAMUS — Will Not Issue Where Right Doubtful or Other Adequate Remedy Exists. — The remedy by mandamus is extraordinary, and if the right is doubtful, or the duty discretionary, or there be any other adequate specific legal remedy in use, this writ will not be allowed.
5. MANDAMUS — Acts Must Be Ministerial. — It is manifest that the writ of mandamus will not issue if the effect of its issuance is to impinge upon the exercise of the judicial discretion of the court or judge.
6. ELECTIONS — Officers of Election — Electoral Board — Representation of Political Parties — Case at Bar. — The instant case was a proceeding by mandamus to require the judge of a Circuit Court to appoint a member of the Republican party to a county electoral board. Section 31 of the Constitution of Virginia provides that each of the political parties which cast the highest and next highest number of votes at the preceding election should be represented on the electoral board as far as possible.
Held: That representation, as used in section 31 of the Constitution, meant that each of the political parties designated should have at least one representative on the electoral board, but since the electoral board was composed of three members, it followed that the provisions of the Constitution left it discretionary with the board as to the number of members to be accorded each political party.
7. ELECTIONS — Officers of Election — Electoral Board — Representation of Political Parties — Case at Bar. — The instant case was a proceeding by mandamus to require the judge of a Circuit Court to appoint a member of the Republican party to a county electoral board. Section 31 of the Constitution of Virginia provides that each of the political parties which cast the highest and next highest number of votes at the preceding election should be represented on the electoral board as far as possible. The petitioner contended that since the Republican party cast the highest number of votes in the last preceding election, the court was required under the provision of the Constitution to appoint two members of the electoral board from the Republican party and one from the Democratic party and that the action of the court in that respect was purely ministerial.
Held: That the action of the trial court was within the discretionary power granted, was judicial and not ministerial, and therefore mandamus did not lie.
Original application for a mandamus.
The opinion states the case.
L. S. Parsons, for the petitioner.
Abram P. Staples, Attorney General, for the respondent.
I. R. Dovel, individually and as chairman of the Republican party of Virginia, has filed his petition in this court, praying that a peremptory writ of mandamus do forthwith issue, to be directed to the Honorable H. W. Bertram, judge of the Circuit Court of Page County, requiring him to appoint on the electoral board of Page county, Virginia, a member of the Republican party of Virginia, to succeed J. William Campbell whose term of office expired on February 28, 1945.
To this petition respondent filed an answer.
Section 88 of the Virginia Constitution confers upon the Supreme Court of Appeals original jurisdiction in cases of mandamus, hence the jurisdiction of this court to hear and determine the question involved.
It is the contention of the petitioner that, due to the fact that in Page county the Republican party cast the highest number of votes in the last preceding election, and that the Democratic party cast the next highest number of votes, the court is required, under the provisions of section 31 of the Constitution of the Commonwealth of Virginia, to appoint two members of the electoral board from the Republican party and one from the Democratic party; and that the action of the court in this...
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