Rider v. Braxton County Court, (Nos. 2725, 2730, and 2742.)

CourtSupreme Court of West Virginia
Writing for the CourtPOFFENBARGER
Citation74 W.Va. 712,82 S.E. 1083
PartiesRIDER. v. BRAXTON COUNTY COURT. HARSHBARGER. v. CABELL COUNTY COURT. CORDRAY . v. MARION COUNTY COURT.
Decision Date15 September 1914
Docket Number(Nos. 2725, 2730, and 2742.)

82 S.E. 1083
(74 W.Va.
712)

RIDER.
v.
BRAXTON COUNTY COURT.

HARSHBARGER.
v.
CABELL COUNTY
COURT.
CORDRAY .
v.
MARION COUNTY COURT.

(Nos. 2725, 2730, and 2742.)

Supreme Court of Appeals of West Virginia.

Sept. 15, 1914


[82 S.E. 1083]

Robinson and Williams, JJ., dissenting.

Proceedings in mandamus by one Rider against the County Court of Braxton County, by one Harshbarger against the County Court of Cabell County, and by one Cordray against the County Court of Marion County. Writs awarded.

In Rider v. Braxton County Court: Alex Dulin, of Sutton, and H. H. Moss, Jr., of Parkersburg, for petitioner. James E. Cutlip, of Sutton, for respondent.

In Harshbarger v. Cabell County Court: F. M. Livezey, F. C. Leftwich, and E. E. Williams, all of Huntington, and Joseph M. Sanders, of Bluefleld, for petitioner. J. S. Marcum, of Huntington, and D. J. F. Stroth-er, of Welch, for respondent.

In Cordray v. Marion County Court: E. F. Morgan and M. E. Morgan, both of Fairmont, for petitioner. J. B. Sommerville, of Wheeling, for respondent,

POFFENBARGER, J. In each of the first two proceedings, the chairman of the Executive Committee of the Republican party, of the county and, in the other, all the members of such committees are the relators; and in each case, the prayer of the petition is for the appointment of Republican registrars in the county, in conformity with the provision of section 1 of chapter 45 of the Acts of 1911, serial section 121 of the Code, of 1913, requiring the county court of each county to appoint two competent persons as registrars in each precinct from the two political parties which, at the last preceding election, polled the highest number of votes in the county in which the election is to be held; it being contended that in each of the three counties in question, the Republican party was one of such parties, and it having been shown that the county courts in said counties had appointed, as registrars, members of the Democratic party and the Progressive party respectively, denying to the Republican party its alleged status.

In each of these counties, there was a full, complete, and regularly nominated Democratic ticket and Republican ticket in the election held in the year of 1912, carrying candidates for President and Vice President of the United States and electors, and a full state, congressional, judicial, county, and district ticket. There was placed upon the ballot likewise a full and complete Progressive ticket made up in the following manner: For President and Vice President and electors the candidates were different from those of the Republican party and the Democratic party, but for state, judicial, county, and district officers the candidates were the

[82 S.E. 1084]

same as those on the Republican ticket, so that the personnel of the Progressive ticket differed from the Republican ticket only as to the candidates for President and Vice President and electors. In each of the counties, the vote cast for Progressive electors was greater than that cast for Republican electors, and no doubt the ballots cast showed the use of more Progressive tickets than Republican tickets in the election. In Cabell county, the votes received by the candidates whose names appeared upon both the Republican and Progressive tickets were recorded separately, the former being only about 1, 750 and the latter about 3, 050, while the Democratic vote was nearly 4, 900. This method of recordation was adopted in Marion county also, and there the candidates for state, congressional, judicial, county, and district officers received, upon the Republican ticket, about 1, 650 votes, and, upon the Progressive ticket, about 2, 250, while the Democratic vote was about 4, 700. In Braxton county, the record does not show any distinction between the Republican and Progressive votes cast for candidates running on both tickets, but it does show a larger vote cast for the Progressive candidates for electors than the Republican candidates for electors, as do the records of the votes in the other two counties.

Much of the argument In support of the petitions for the writs denies the existence, in any of the three counties, of any political party known as a Progressive party, and affirms the existence of only two important political parties in the election of 1912, the Republican and Democratic. This argument, however, must yield to the plain provision of the statute, permitting the organization of new parties by petition, as analyzed and applied in Morris v. Ballot Commissioners, 71 W. Va. 180, 76 S. E. 446, and Stewart v. Ballot Commissioners, 71 W. Va. 246, 76 S. E. 448. The filing of a petition containing the signatures of the requisite number of voters creates a new party in this state or any district thereof to the extent of enabling it to have a ticket or the names of candidates upon the ballot. As the Progressive party, so organized for the election of 1912, polled more than 3 per cent, of the entire vote in the state and also more than 3 per cent, of the vote in each of the three counties to which these controversies relate, it must be considered not only a political party authorized to make nominations, but one also authorized by law to nominate candidates by conventions and primary elections.

This conclusion, however, does not cover the more vital question, whether the Progressive party, as against the Republican party, is one of the two parties polling the highest vote in the election of 1912. There is a Progressive party and a Republican party and both participated in that election. The Democratic party also participated in it and its leading character is admitted. The other two, except as to the national ticket supported exactly the same candidates and, in a large sense, jointly opposed the Democratic party. Between them, there was no test of strength except as to the national ticket. Obviously it was only a partial test. As regards state, congressional, judicial, county and district offices, there was not the slightest controversy between them. A Republican ticket was first nominated by a general primary election, except the candidates for judges of the Supreme Court, who were nominated by a convention, and the Progressives later circulated a petition, renominating or indorsing the same candidates. Whether in matter of form, it was a renomination or an indorsement, there was no substantial contest between the Republican and Progressive organizations for the election of these officers. Both supported the same men as candidates for them. Aside from the contest for the presidency and vice presidency, there were formally two tickets but substantially and in fact only one supported by both Progressives and Republicans.

The pleadings in these actions show, and the court judicially knows, as matter of common knowledge and current history, that the Progressive movement and organization were, in their inception, a protest against the action of the Republican National Convention held at Chicago in the year 1912, embracing in their purpose the election to the presidency of a losing candidate for the Republican nomination in that convention. In order to get his name on the ballot in this state, it was necessary to use a party name different from that of the Republican party. His name and the names of his candidates for electors could only be placed upon the ticket under some party name other than those of the Republican, Democratic, Prohibition, and Socialist. He had formerly been a Republican, as had also the great body of his supporters in all the counties of this state. If his name could have been gotten upon the official ballot as a Republican candidate, there is little doubt that it would have been placed upon it under that name rather than a new one, for it is a matter of common knowledge that he was considered, by many of his supporters as being the rightful nominee of the Republican party. The Republican state and congressional district conventions sent a solid Roosevelt delegation to the Republican National Convention. After these delegates had been selected and before the National Convention had assembled, a state-wide primary election was held for the nomination of Republican candidates for state, judicial, congressional, legislative, and county candidates, and, as a general rule, both the Taft and Roosevelt Republicans participated in it and nominated the ticket subsequently supported by the Re-

[82 S.E. 1085]

publican and Progressive organizations in tbe general election. After the Republican National Convention had adjourned, a Progressive National Convention was held in Chicago, and this state was represented in it by delegates selected in some way. That convention nominated Roosevelt and Johnson for President and Vice President, and later a Progressive state convention was held in the city of Charleston, made up of delegates selected in some irregular manner. Inasmuch as the Progressive party could not then under our statutes nominate candidates otherwise than by petition, the returns of the last preceding election not having shown the existence of such a party, the Charleston convention amounted to little more than a mere conference of the supporters of the Progressive candidates for President and Vice President. It adopted a platform of principles embodying those of the Progressive National platform adopted at Chicago and perhaps some others. One of the measures evolved by that convention or conference was the indorsement or re-nomination of the Republican ticket nominated in the state convention and the state primary, but it was necessary to do that by means of petitions circulated in the various counties of the state.

In so much of the contest for the presidency as was waged in this state the Progressive vote was larger than the Republican. Under our law, the Progressives could have placed in the field and put on their ticket, bearing their name and the emblem they used, only their candidates for President and Vice...

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10 practice notes
  • State v. Blatt, No. 14–0757.
    • United States
    • Supreme Court of West Virginia
    • 16 Junio 2015
    ...permitted to base a finding upon facts which are merely matters of his personal knowledge....”); Rider v. Cnty. Court of Braxton Cnty., 74 W.Va. 712, 722, 82 S.E. 1083, 1086 (1914) (Robinson, J., dissenting) (“That courts may take judicial notice of matters of common knowledge and current h......
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • 18 Octubre 1960
    ...officers to perform legally their official duties. Boggess v. Buxton, 67 W.Va. 679, 69 S.E. 367, 21 Ann.Cas. 289; Rider v. County Court, 74 W.Va. 712, 82 S.E. 1083; State ex rel. Heironimus v. Town of Davis, supra; Frantz v. County Court, Our research fails to disclose that this case has be......
  • Bee v. City Of Huntington, No. 7752.
    • United States
    • Supreme Court of West Virginia
    • 19 Septiembre 1933
    ...Click, 98 W. Va. 419. Syl. 2, and page 430, 127 S. E. 194; Hasson v. Chester, 67 W. Va. 278, Syl. 2, 67 S. E. 731; Rider v. County Court, 74 W. Va. 712, Syl. 1 and page 721, 82 S. E. 1083; Dickey v. Smith, 42 W. Va. 805, and at page 809, 26 S. E. 373; Coal, etc., Ry. v. Conley, 67 W. Va. 12......
  • State ex rel. Simpkins v. Harvey, No. 15769
    • United States
    • Supreme Court of West Virginia
    • 29 Junio 1983
    ...v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1939); Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925); Rider v. Braxton County Court, 74 W.Va. 712, 82 S.E. 1083 (1914); Dickey v. Smith, 42 W.Va. 805, 26 S.E. 373 The Youthful Male Offender Act provides that once the offender has completed hi......
  • Request a trial to view additional results
10 cases
  • State v. Blatt, No. 14–0757.
    • United States
    • Supreme Court of West Virginia
    • 16 Junio 2015
    ...permitted to base a finding upon facts which are merely matters of his personal knowledge....”); Rider v. Cnty. Court of Braxton Cnty., 74 W.Va. 712, 722, 82 S.E. 1083, 1086 (1914) (Robinson, J., dissenting) (“That courts may take judicial notice of matters of common knowledge and current h......
  • State ex rel. Zickefoose v. West, No. 12039
    • United States
    • Supreme Court of West Virginia
    • 18 Octubre 1960
    ...officers to perform legally their official duties. Boggess v. Buxton, 67 W.Va. 679, 69 S.E. 367, 21 Ann.Cas. 289; Rider v. County Court, 74 W.Va. 712, 82 S.E. 1083; State ex rel. Heironimus v. Town of Davis, supra; Frantz v. County Court, Our research fails to disclose that this case has be......
  • Bee v. City Of Huntington, No. 7752.
    • United States
    • Supreme Court of West Virginia
    • 19 Septiembre 1933
    ...Click, 98 W. Va. 419. Syl. 2, and page 430, 127 S. E. 194; Hasson v. Chester, 67 W. Va. 278, Syl. 2, 67 S. E. 731; Rider v. County Court, 74 W. Va. 712, Syl. 1 and page 721, 82 S. E. 1083; Dickey v. Smith, 42 W. Va. 805, and at page 809, 26 S. E. 373; Coal, etc., Ry. v. Conley, 67 W. Va. 12......
  • State ex rel. Simpkins v. Harvey, No. 15769
    • United States
    • Supreme Court of West Virginia
    • 29 Junio 1983
    ...v. Pennybacker, 120 W.Va. 774, 200 S.E. 350 (1939); Click v. Click, 98 W.Va. 419, 127 S.E. 194 (1925); Rider v. Braxton County Court, 74 W.Va. 712, 82 S.E. 1083 (1914); Dickey v. Smith, 42 W.Va. 805, 26 S.E. 373 The Youthful Male Offender Act provides that once the offender has completed hi......
  • Request a trial to view additional results

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