Marcum v. Ballot Com'rs Of Lincoln

CourtSupreme Court of West Virginia
Writing for the CourtBRANNON
Citation26 S.E. 281,42 W.Va. 263
PartiesMARCUM. v. BALLOT COM'RS OF LINCOLN, LOGAN, MINGO, AND WAYNE COUNTIES.
Decision Date27 October 1896

26 S.E. 281
42 W.Va.
263

MARCUM.
v.
BALLOT COM'RS OF LINCOLN, LOGAN, MINGO, AND WAYNE COUNTIES.

Supreme Court of Appeals of West Virginia.

Oct. 27, 1896.


[26 S.E. 281]

Mandamus —Judicial Discretion — Ministerial Act—Ballot Commissioners—Nominations.

1. A writ of mandamus does not lie to control or reverse the action of a court, board, or other inferior tribunal, or of an officer, where such action is one of discretion, judicial or quasi judicial; but it does lie where such action is merely ministerial.

2. A ministerial act or duty is one which is to be performed under a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, and without regard to or exercise of the judgment of the one doing it upon the propriety of the act's being done.

3. The fact that the decision of a merely "preliminary question" may be of judicial nature will not forbid the use of mandamus.

4. Section 89, c. 3, of the Code, as re-enacted in chapter 25, Acts 1893, in cases involving duties of ballot commissioners under said chapter, gives the writ of mandamus more scope than at common law, rendering a process to control them as to all actions ministerial or judicial.

5. In passing on the right of nominees for public office to appear on election ballots, this court recognizes the right of the convention making them to judge of the election, qualification, an3 returns of its own members, and will not go back of its action to inquire as to the right or title of delegates admitted by it as members.

English, J., dissenting.

(Syllabus by the Court.)

Petition by W. W. Marcum for mandamus against the ballot commissioners of Lincoln, Logan, Mingo, and Wayne counties. Writ denied.

J. H. Ferguson, Brown, Jackson & Knight, J. W. St. Clair, and Marcum & Marcum, for petitioner.

Couch, Flournoy & Price, for respondents.

BRANNON, J. A question presents itself which, I confess, has greatly perplexed me, requiring close thought and nice discrimination for its solution. Does mandamus lie in this case? Until our present election law, called the "Australian Ballot, " courts did not know political parties as such. They had no status as such in legal contests except in congress and other political bodies, but under the new election law they have distinctive legal existence whenever questions arising under it come before the courts. Two certificates of nomination for judge of the Eighth circuit, emanating from two conventions, each claiming to be the true Democratic nominating convention, were presented to the ballot commissioners of Wayne county, each asking a place on the official ballots, in exclusion of the other. The commissioners were bound to decide which should go on the ballots as the representative nominee of that party. They determined in favor of one. The plaintiff seeks to have this court compel the ballot commissioners to place him on the ballots, thus reversing the action of the ballot commissioners. It is said this cannot be done by mandamus, because the decision by the board of ballot commissioners between the competing nominations involved discretion, — involved a decision on facts, a quasi judicial function; and that mandamus does not lie; and that recourse must be had to a writ to review this action, —appellate process; and that this writ is certiorari.

I admit the doctrine laid down in State v. County Court, 33 W. Va. 589, 11 S. E. 72, that mandamus will not lie to control the exercise of the discretion of any court, board, or officer when the act complained of is either judicial or quasi judicial in its nature; that the inferior tribunal may be compelled to act in such case if it unreasonably neglects or refuses to do so, but, if it does act, the propriety of its action, however erroneous, cannot be questioned or controlled by mandamus, —followed in Miller v. County Court, 34 W. Va. 285, 12 S. E. 702, and State v. Herrald, 36 W. Va. 721, 15 S. E. 974. But it is equally well settled that if the act to be performed is not one of legal discretion, —that is, judicial in nature, —but is merely ministerial, mandamus will lie. Board of Minturn, 4 W. Va. 300; Doolittle v. County Court, 28 W. Va. 158; full note, Dane v. Derby, 89 Am. Dec. 732. It turns, then, on the character of the act. The board of ballot commissioners is not a court, but a merely ministerial body. But is its function of admitting the names of nominees to a place on the official election ballots in nature one of discretion, judicial in nature, or merely ministerial?

A ministerial act is one which a person performs in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without regard to his own judgment upon the propriety of the act being done. Merrill, Mand. § 30; Flournoy v. City, 79 Am. Dec. 468, and note; Security Co. v. Fyler (Conn.) 22 Atl. 494. Chapter 3, Code 1891, provides how nominations for public office shall be made and certified to be put on the ballots, and, in section 33, says that it shall be the duty of the ballot commissioners to provide ballots for every election, "and cause to be printed on the ballot the name of every candidate whose name has been certified to or filed with the clerk of the circuit court in the manner provided in this chapter." Now, I confidently assert that, when a name of a candidate for office so certified comes before this board, it is its bounden duty to put it on the ballot, and that this duty is ministerial, because the board has no discretion as to putting it on. Ministerial is the nature of the duty of the board when but one certificate of nomination is before it. But, when a second certificate of nomination comes before the board, does it at once change the nature of the duty from what it was before, simply ministerial, into one of judicial nature? Here the question is close and difficult. Notice that the above definition of a ministerial act says it is ministerial when the officer or tribunal has no discretion as to the propriety or impropriety of doing the act, but must do it; that is, when

[26 S.E. 282]

he has no power to say whether he will or will not do the act, it is ministerial; but when he has power or discretion to do or not do the act, as his judgment on the facts directs him, the act is judicial in nature, not ministerial. Merrill, Mand. §§ 30, 33. Clearly, this board had no discretion to say it would put no name on the ballot, and therefore the general nature of its function was ministerial. But this does not dispose of our trouble, for, though the general nature of making up election ballots by these commissioners be ministerial, yet it does not follow that mandamus inevitably lies; for "it is not the office of the writ to control discretion even in the act of performing ministerial duties, " says Spell. Mand. § 1395. If, to discharge that ministerial duty, it becomes necessary for the tribunal to decide on law and facts between contesting claims or rights, it becomes judicial in nature. When the two contestant nominees were both before the board, the matter became a lis, a controversy between two parties upon their respective rights, which called on the board to investigate facts, and upon them say which, in the eye of this election law, was entitled to the Democratic place on the ballot. This was, then, a judicial question, called quasi judicial when the matter is before an officer or a tribunal, not a court; and such a question cannot be made the basis of a mandamus at common law.

As seen above, the definition of a ministerial act says it is one that must be done, without any right on the part of the officer or tribunal called upon to perform it to say whether it ought or ought not to be done. Then, what act is that in this case? TV) solve this case, we must know what act it is on the part of the board about which it must have no discretion to do or not do it, which will justify mandamus. Is it the act of the board in putting some name for judge on the Democratic ticket, or is it the act of saying which is the true Democratic nominee, between Marcum and Harvey, —in other words, the act of putting or not putting Marcum's name on it, that being the particular act sought to be enforced by the mandamus? If it were the former, mandamus would lie, because the general nature of the duty of putting nominees on a ticket is ministerial; but, obviously, the particular thing which the mandamus seeks to have done is the insertion of Marcum's name on the ticket, and as the board exercised discretion as to that, because called upon to decide which of the two nominations was the true one, entitled to a place on the ticket, that act is quasi judicial, and mandamus could not enforce it under the common law of mandamus. I can see that it may be said that the act of deciding between the two nominations is only what is known in the law of mandamus as a "preliminary question, " and that, though the decision of such a "preliminary question" involve matters judicial in character, that does not exclude the use of this writ, be cause its decision is a mere incident, leading up to the main function or act, that of...

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62 practice notes
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • 12 Marzo 1986
    ...or exercise of the judgment of the one doing it upon the propriety of the act's being done." Syl. pt. 2, Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281 2. The determination to be made by the governor under West Virginia Code § 51-9-9 (1981 Replacement Vol.) is whether the judge i......
  • White v. Manchin, Nos. 16312
    • United States
    • Supreme Court of West Virginia
    • 13 Julio 1984
    ...35 S.E. 956, 958 (1900); Hebb v. Cayton, 45 W.Va. 578, 580, 32 S.E. 187, 188 (1898); Syl. pt. 4, Marcum v. [173 W.Va. 534] Ballot Comm'rs, 42 W.Va. 263, 26 S.E. 281 (1896). With this perspective on the nature of election mandamus, we now address the candidates' contentions as to the appropr......
  • State ex rel. Cline v. Hatfield, No. 12069
    • United States
    • Supreme Court of West Virginia
    • 20 Septiembre 1960
    ...here be made to review the decisions of this Court between the decision in the Minturn case and that of Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281, 283, 36 L.R.A. 296. Suffice to say that the decisions of this Court during that period consistently held that in the absence of ......
  • Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, Nos. 10850
    • United States
    • Supreme Court of West Virginia
    • 28 Enero 1957
    ...Court of Taylor County v. Holt, 61 W.Va. 154, 56 S.E. 205; Marcum v. Ballot Commissioners of Lincoln, Logan, Mingo and Wayne Counties, 42 W.Va. 263, 26 S.E. 281, 36 L.R.A. 296; State ex rel. Wayne County Court v. Herrald, 36 W.Va. 721, 15 S.E. 974; Miller v. County Court of Tucker County, 3......
  • Request a trial to view additional results
62 cases
  • DePond v. Gainer, No. 16902
    • United States
    • Supreme Court of West Virginia
    • 12 Marzo 1986
    ...exercise of the judgment of the one doing it upon the propriety of the act's being done." Syl. pt. 2, Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281 2. The determination to be made by the governor under West Virginia Code § 51-9-9 (1981 Replacement Vol.) is whether the judge......
  • White v. Manchin, Nos. 16312
    • United States
    • Supreme Court of West Virginia
    • 13 Julio 1984
    ...35 S.E. 956, 958 (1900); Hebb v. Cayton, 45 W.Va. 578, 580, 32 S.E. 187, 188 (1898); Syl. pt. 4, Marcum v. [173 W.Va. 534] Ballot Comm'rs, 42 W.Va. 263, 26 S.E. 281 (1896). With this perspective on the nature of election mandamus, we now address the candidates' contentions as to the appropr......
  • State ex rel. Cline v. Hatfield, No. 12069
    • United States
    • Supreme Court of West Virginia
    • 20 Septiembre 1960
    ...here be made to review the decisions of this Court between the decision in the Minturn case and that of Marcum v. Ballot Commissioners, 42 W.Va. 263, 26 S.E. 281, 283, 36 L.R.A. 296. Suffice to say that the decisions of this Court during that period consistently held that in the absence of ......
  • Board of Trustees of Policemen's Pension or Relief Fund of City of Huntington v. City of Huntington, Nos. 10850
    • United States
    • Supreme Court of West Virginia
    • 28 Enero 1957
    ...Court of Taylor County v. Holt, 61 W.Va. 154, 56 S.E. 205; Marcum v. Ballot Commissioners of Lincoln, Logan, Mingo and Wayne Counties, 42 W.Va. 263, 26 S.E. 281, 36 L.R.A. 296; State ex rel. Wayne County Court v. Herrald, 36 W.Va. 721, 15 S.E. 974; Miller v. County Court of Tucker County, 3......
  • Request a trial to view additional results

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