Pack v. Karnes et als.

• Decision Date: 29 October 1918
• Citation: 83 W.Va. 14
• Court: West Virginia Supreme Court
• Parties: Pack v. Karnes et als.

83 W.Va. 14

Pack

v.Karnes et als.

Supreme Court of Appeals of West Virginia.

Submitted October 22, 19.18. Decided October 29, 1918.

1. Mandamus Board of Ballot Commissioners Discharge of Duty.

A citizen, tax payer and voter has such interest as entitles him to maintain mandamus to compel a board of ballot commissioners to discharge their duties lawfully in respect to the preparation of ballots for a general election, (p. 17).

2. Same Ballot Commissioners Defense to Writ.

The fact that a board of ballot commissioners have already made up the ballot for a general election, will constitute no defense to a writ to compel them to discharge their duties lawfully; until they have done so, in contemplation of law they have not performed them at all. (p. 18).

3. Elections Ballot resignation of Nominee Appointment to Fill

Vacancy.

Under the primary election law one who has not complied with all the requirements of the statute to entitle him to have his name printed on the ballot, cannot become the nominee of his party although he may have received the requisite number of votes at such primary election, and not having become such nominee, the executive committee of his party on his resignation can not lawfully appoint another as for a vacancy. (p. 18).

4. Same Defective Nomination Ballots.

And where there has been no lawful nomination at such primary election, the executive conmmittee of a political party can not lawfully appoint a nominee with right to have his name placed by the ballot commissioners on the official ballot to be voted at a general Election. (p. 19).

Application by the State, on the relation of J. C. Pack, Chairman of the Republican Executive Committee of Mercer Comity, against H. D. Karnes and others, constituting the Board of Ballot Commissioners, for a writ of mandamus.

Writ granted.

Hugh G. Woods, for relator. D. M. Easley, for respondents.

Miller, Judge:

The relief sought by mandamus in these eases is the same as that which petitioners endeavored to obtain by prohibition at the present term of court. We then held, in an opinion prepared by Judge Poffenbarger, that mandamus and not prohibition was the exclusive remedy given by the statute where it was desired to control the action of a board of ballot commissioners, wherefore the present proceeding in mandamus.

The petitioner in each ease sues not only in his capacity of chairman of the Republican Executive Committee of Mercer County, but also as citizen, tax payer and voter. The petition in Case No. 3741 alleges that at the primary election held August 6, 1918, The name of E. H. Thompson, who had announced himself therefor, was put on the Democratic ballot as a candidate for the nomination for the House of Delegates, along with the name of T. J. Phelps, the only other candidate for that office. It is further alleged that at said primary Thompson was voted for generally by members of his party throughout the county, but that because of his failure, as required by law, to file with the clerk of the county court at least seven days before said primary election an itemized statement, subscribed and sworn to, setting forth all his financial transactions in connection with his candidacy, and because of his failure to file such sworn statement with said clerk at any time until eight days after said primary, he was not legally nominated by his party as a candidate for the House of Delegates and was not entitled to have his name printed or placed on the official ballot to be voted on at the general election on the 5th day of November, 1918.

It is further alleged that some time after said primary election the said Thompson pretended to resign his alleged nomination to the Democratic county executive committee, which committee pretended to accept such resignation and undertook to appoint as for a vacancy caused by such resignation the respondent James R. Shanklin as a candidate on the Democratic ticket for said office to be voted for at said general election, and that Henry Karnes, D. F. Hale and R. D. Karnes, composing the board of ballot commissioners for said county, had so placed the name of said Shanklin on said official ballot V) be voted for as aforesaid.

In Case No. 3742 the petition of the same petitioner alleges that subsequent to the said primary election held on August 6, 1918, at which the said names of Thompson and Phelps were the only names printed on the official Democratic ballot as candidates for the nomination for the House of Delegates, the Democratic executive committee for said county had also undertaken to appoint as for a vacancy and as a third candidate for the House of Delegates respondent S. R. Holroyd and had also certified his appointment as such candidate to said board of ballot commissioners to be printed on the official ballot to be voted at said general election on November 5, 1918, and that said board of ballot commissioners had also placed his name on said official ballot. It is further alleged with respect to the particular appointment of said Holroyd that no vacancy had occurred in any nomination made at said primary election which the said Democratic executive committee could lawfully fill by said appointment, wherefore said pretended appointment was wholly abortive and void.

The prayer of said petitions respectively is that respondents H. D. Karnes, D. F. Hale and R. D. Karnes, composing the board of ballot commissioners of said county, be commanded by a peremptory writ of mandamus issued out of this court to omit from the official ballot to be voted on at said general election November 5, 1918, the names respectively of said Shanklin and Holroyd.

Shanklin and Holroyd alone have appeared to resist the award of said writs. Each in his particular case has demurred to and moved the court to quash the petition and also made return thereto. The grounds of demurrer and motion to quash summarized are: First, that the...