Meisel v. O'Brien

• Citation: 93 S.E.2d 481,142 W.Va. 74
• Decision Date: 03 July 1956
• Docket Number: No. 10837,10837
• Court: West Virginia Supreme Court
• Parties: Louis D. MEISEL v. D. Pitt O'BRIEN, Secretary of State of State of West Virginia, H. William Largent et al.

Page 481

93 S.E.2d 481

142 W.Va. 74

Louis D. MEISEL v. D. Pitt O'BRIEN, Secretary of State of State of West

Virginia, H. William Largent et al.

No. 10837.

Supreme Court of Appeals of West Virginia.

Submitted June 26, 1956.

Decided July 3, 1956.

Syllabus by the Court.

Code, 3-3-3, properly applied, authorizes the election of four persons, two men and two women to separate offices, committeemen and committeewomen of a State Executive Committee of political parties, in a Senatorial District, but limits the election of such persons to not more than two who reside in one county. A person receiving a plurality of votes cast at a primary election for such office and not disqualified by the limiting part of the statute is entitled to a certificate of results and to be inducted into the office of State Executive Committeeman or Committeewoman.

Carl L. Davis, Charleston, for relator.

John G. Fox, Atty. Gen. and George G. Burnette, Jr., Asst. Atty. Gen., for respondents.

LOVINS, Judge.

By this original proceeding in mandamus, Louis D. Meisel seeks to be inducted into office as a Member of the State Executive Committee for the Republican Party representing the Fourteenth Senatorial District.

He filed his petition against D. Pitt O'Brien, Secretary of the State of West Virginia, H. William Largent, Ad L. Thomas, Leota Gaskins, Mavis A. Mann, Myrtle S. Sowers and Frances K. Watson, all of whom, except the defendant O'Brien, were candidates for the office of Member of the Republican State Executive Committee for the Fourteenth Senatorial District. This proceeding was submitted on petition and demurrer, therefore, the facts are not disputed.

At the primary election held on May 8, 1956, the persons receiving votes for the offices of committeeman of the Republican State Executive Committee for the Fourteenth Senatorial District, as shown by the tabulation of votes cast in such Senatorial District are: Ad L. Thomas and Louis D. Meisel, residents of Marion County, received 7,447 votes and 7,008 votes respectively. H. William Largent, a resident of Monongalia County, received 6,977 votes. For offices of committeewomen, the tabulation of votes disclosed the following results: Mavis A. Mann, a resident of Monongalia County, received 5,727 votes; Frances K. Watson of Marion County, 5,588 votes; Myrtle S. Sowers of Monongalia County, 5,118 votes and Leota Gaskins of Marion County, 4,672 votes.

The petitioner contends that he was elected as a committeeman for the Fourteenth District, according to the foregoing tabulation, and that he should have been inducted into such office by the Secretary of State. On the contrary, the Secretary of State refused to issue to the petitioner a certificate of election as a Member of the State Executive Committee for the Fourteenth District, but has indicated that Ad L. Thomas and H. William Largent were elected as committeemen from such Senatorial District.

The petitioner prays for a peremptory writ of mandamus directed to the Secretary of State, D. Pitt O'Brien, requiring him to issue a certificate of election as committeeman for the Republican State Executive Committee from the Fourteenth Senatorial District of West Virginia.

Under the reapportionment statute, passed in 1951, the Fourteenth Senatorial District is composed of the counties of Marion and Monongalia. Chapter 165, Acts of the Legislature, 1951, Regular Session.

The relator Meisel prays that the respondent O'Brien be required to issue him a certificate of election. We find no statutory provision relating to the issuance of a certificate of election. We treat the prayer of the petition as praying that relator be inducted into the office he claims.

Mandamus is the proper remedy to enforce a ministerial right to be performed by the defendant O'Brien. 'A mandamus shall lie from the supreme court of appeals, or any one of the judges thereof in vacation, returnable before said court, to compel any officer herein to do and perform legally any duty herein required of him.' Code, 3-5-41.

There are provisions for the certification of results by the Secretary of State as to members of the Legislature and others, and for a proclamation by the Governor as to United States Senators, Judges and others, but the statutes are silent as to a declaration or certification respecting State Executive Committee Members. Since, however, Code, 3-4-18, as amended by Chapter 50, Acts of the Legislature, 1943, Regular Session, requires such results to be certified by precinct election officers to the Secretary of State, it is a reasonable inference that the Secretary of State having received such certificates, should furnish to a person elected to the office of State Executive Committeeman or Committeewoman a certificate of those results.

Election to political office, as provided in this jurisdiction were unknown at common law. Taylor v. Beckham, 178 U.S. 548, 20 S.Ct. 890, 901, 44 L.Ed. 1187. 'Our system of elections was unknown to the common law, and the whole subject is regulated by constitutions and statutes passed thereunder.' The foregoing language is quoted with approval in the case of Morris v. Board of Canvassers, 49 W.Va. 251, 255, 38 S.E. 500. See Halstead v. Rader, 27 W.Va. 806; State ex rel. Robertson v. County Court of Kanawha County, 131 W.Va. 521, 524, 48 S.E.2d 345; State ex rel. Forsythe v. County Court of Cabell County, 131 W.Va. 570, 576, 48 S.E.2d 412; Evans v. Charles, 133 W.Va. 463, 468, 56 S.E.2d 880; Simms v. Kanawha County Court, 134 W.Va. 867, 871, 61 S.E.2d 849 and 18 Am.Jur., Elections, Sections 2 and 6.

There being no common law principle applicable to the instant case, we must...