Pack v. Karns

Citation97 S.E. 281
Decision Date22 October 1918
Docket Number(Nos. 3736, 3737.)
CourtSupreme Court of West Virginia
PartiesPACK. v. KARNS et al.

(Syllabus by the Court.)

Prohibition by J. C. Pack against H. D. Karns and others, as the Board of Ballot Commissioners of Mercer County. Writs refused.

Russell S. Ritz, of Bluefield, and Hugh G. Woods, of Princeton, for petitioner.

John R. Pendleton, of Princeton, and John Kee, of Bluefield, for respondents.

POFFENBARGER, P. The petitioner seeks writs of prohibition to restrain the board of ballot commissioners of Mercer county from placing the names of two persons on the official ballots to be used in that county in the general election to be held November 5, 1918, as candidates of the Dem ocratic party, on the ground that they are not nominees of said party.

Whether they are nominees cannot be judicially ascertained or determined on these petitions. A degree of uncertainty as to the effect of the statute (section 89, a 3, of the Code [sec. 111]), allowing mandamus as a remedy to compel election officers to perform their duties legally, is found in our decisions. Some of them say the statute broadened the scope of the writ, and made it operate in such cases as a certiorari. Marcum v. Ballot Commissioners, 42 W. Va. 263, 26 S. E. 281, 36 L. R. A. 296; Morris v. Board of Canvassers, 49 W. Va. 264, 38 S. E. 500; Goff v. Board of Canvassers, 56 W. Va. 675, 49 S. E. 588. On the other hand, it has been suggested that the legislative purpose was to strip election officers of all judicial power, in so far as they previously held any, and make all their acts purely ministerial. Dunlevy v. County Court, 47 W. Va. 513, 35 S. E. 956; Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690. Some doubt was expressed by Judge Brannon in Boggess v. Buxton, 67 W. Va. 679, 69 S. E. 367, 21 Ann. Cas. 289, as to the correctness of his own views in earlier cases. Either view sustains mandamus as a remedy against election officers. Whatever the true theory may be, section 89 of chapter 3 of the Code (sec. 111) was evidently intended by the Legislature to be full, comprehensive, and exclusive as to remedies against election officers. It deals fully and minutely with the subject, giving mandamus in all cases, and certiorari and prohibition only in certain classes of eases. It says:

"A mandamus shall lie * * * to compel any officer herein to do and perform legally any duty herein required of him, " and that, in certain instances, "a writ of certiorari, mandamus or prohibition shall...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT