State ex rel. Baker v. Bailey

• Decision Date: 16 October 1968
• Docket Number: Nos. 12765--12767,s. 12765--12767
• Citation: 152 W.Va. 400,163 S.E.2d 873
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. C. R. BAKER, etc. v. Robert D. BAILEY, Secretary of State, et al., etc., and Robert G. Phillips. STATE ex rel. Ernest L. HAGER, etc. v. Robert D. BAILEY, Secretary of State, et al., etc., and Don C. Elkins. STATE ex rel. Rex W. SMITH, etc. v. Robert D. BAILEY, Secretary of State, et al., etc. and Joseph B. Lightburn.

Page 873

163 S.E.2d 873

152 W.Va. 400

STATE ex rel. C. R. BAKER, etc. v. Robert D. BAILEY, Secretary of State, et al., etc., and Robert G. Phillips.

STATE ex rel. Ernest L. HAGER, etc. v. Robert D. BAILEY, Secretary of State, et al., etc., and Don

C. Elkins.

STATE ex rel. Rex W. SMITH, etc. v. Robert D. BAILEY, Secretary of State, et al., etc. and Joseph B. Lightburn.

Nos. 12765--12767.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 4, 1968.

Decided Oct. 16, 1968.

Syllabus by the Court

1. '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.' Pt. 1, syllabus, Pack v. Karnes, 83 W.Va. 14 (97 S.E. 302).

2. A board of ballot commissioners has no right to put on any ticket the name of any person not nominated pursuant to law.

3. Where a statute provides for a thing to be done in a particular manner or by a prescribed person or tribunal it is implied that it shall not be done otherwise or by a different person or tribunal.

4. In a consolidated case where three vacancies in primary election nominations occurred in three state senatorial districts on the ballot of an established political party, two by failure of any person to file and one by withdrawal of a nominee, and the West Virginia Code, 3--5--19, as amended, provided that such vacancies could be respectively filled by a state senatorial district executive committee established by other Code sections within sixty-five days next preceding the general election or if the committee did not act, by the chairman of the committee within sixty days next preceding the general election, it is held that a timely attempt by members of the general state executive committee or of local county committees to fill such vacancies is ineffectual, and an attempt by the proper senatorial committees to fill such vacancies after the time limit had expired and to have such delayed certificates relate back to the time of the original ineffective certificates, is likewise ineffectual. The first attempt is barred because done by the wrong persons, and the second because not done in time.

Beckett & Burford, Robert H. Burford, Huntington, for relators.

C. Donald Robertson, Atty. Gen., Thomas B. Yost, Asst. Atty. Gen., Charleston, A. E. Fiorentino, Elkins, Daniel D. Dahill, Logan, for respondents.

BERRY, President:

These consolidated cases involve proceedings in mandamus filed under the original jurisdiction of this Court by the petitioners C. R. Baker, Ernest L. Hager and Rex W. Smith, as citizens and taxpayers of the Twelfth, Seventh and Thirteenth Senatorial Districts of West Virginia respectively, against Robert D. Bailey, Secretary of State of West Virginia, against the ballot commissioners from each county comprising the particular Senatorial Districts involved in each proceeding and against Robert G. Phillips, Don C. Elkins, and Joseph B. Lightburn, the Republican nominees in the various certificates of nomination filed in the office of the Secretary of State for the Twelfth Senatorial District, the Seventh Senatorial District and the Thirteenth Senatorial District respectively. The purpose of the three original proceedings was to compel the respondent Robert D. Bailey, Secretary of State, to withdraw the certificates of candidacy of Phillips, Elkins and Lightburn and to notify the respondent ballot commissioners of each of the counties composing the Twelfth, Seventh and Thirteenth Senatorial Districts of West Virginia of the withdrawal of said certificates and to further require the respondent ballot commissioners of said Senatorial Districts to omit the names of Robert G. Phillips, Don C. Elkins and Joseph B. Lightburn from the ballot to be used in the several Senatorial Districts in the general election to be held on November 5, 1968. The issues involved in all three cases are identical and the cases were consolidated for argument together by counsel for the respective parties and were submitted for decision of this Court upon arguments and briefs October 15, 1968.

On October 16, 1968, this Court by order granted the writs prayed for in the petitions and directed the respondents to omit the names of Phillips, Elkins and Lightburn from the official ballots to be used in the general election on November 5, 1968, as the Republican candidates for offices of State Senator in their various Senatorial Districts. This opinion, which is now deemed necessary to be filed, is written for the purpose of stating the reasons for the Court's action in awarding the writ.

In the May, 1968 Primary Election held in this State no person filed for the Republican nomination for the offices of State Senator from the Twelfth and Thirteenth Senatorial Districts, and soon after the primary election the Republican nominee for the Seventh Senatorial District withdrew as a candidate, resulting in vacancies in the nomination for State Senators on the Republican ticket in each of the three Senatorial Districts involved in this case. On July 10, 1968, August 28, 1968, and August 30, 1968, certificates of nomination were filed with the respondent Robert D. Bailey, Secretary of State, by certain members of the State Executive Committee and in some cases of the County Executive Committee purporting to nominate Robert G. Phillips, Joseph B. Lightburn and Don C. Elkins respectively as Republican candidates for the office of State Senator for their respective Districts.

On September 13, 1968, the Secretary of State refused to certify all three proposed nominees for the reason that the persons who had signed the purported certificates of nomination were not members of the Senatorial District Executive Committee for the Republican Party in the respective Senatorial Districts as required by law, and as a result thereof the names of Robert G. Phillips, Joseph B. Lightburn and Don C. Elkins were omitted from the ballots by the ballot commissioners serving in the counties of their respective Senatorial Districts.

On or about September 16, 1968, September 17, 1968, and September 18, 1968, three certificates of nomination, the one for Lightburn being designated as an 'amended certificate' and the one for Phillips 're-affirming' his previous selection, were filed with the Secretary of State purporting to nominate Elkins, Phillips and Lightburn as Republican candidates for State Senate from the Seventh, Twelfth and Thirteenth Senatorial Districts respectively. These certificates were purportedly made by the Senatorial Executive Committee Members of the respective Senatorial Districts, and it is now contended by counsel for the respective respondents that these certificates amend, ratify or reaffirm the previous certificates.

On September 20, 1968, the Secretary of State considered the second group of certificates and certified the name of Robert G. Phillips, Joseph B. Lightburn and Don C. Elkins as nominees from their respective Senatorial Districts with direction that the ballot commissioners in the counties of the respective Senatorial Districts place their names on the official ballot to be used in the general election to be held on November 5, 1968.

It is clear under the law pertaining thereto and is apparently conceded by the respondents that the first certificates purporting to nominate Robert G. Phillips, Joseph B. Lightburn and Don C. Elkins by certain members of the State Executive Committee of July 10, August 28 and August 30, 1968, did not in any respect comply with such law because such vacancy can only be filled by the committee of the political party of the political subdivision in which the vacancy occurs, which, in this case, is the senatorial district committee. The provisions governing this matter are contained in Code 3--5--19, as amended, which reads as follows:

'If any vacancy shall occur in the party nomination of candidates for office, caused by the death, withdrawal, failure to make a nomination for the office at the primary election, or otherwise, It may be filled and the name of the candidate certified by the executive committee of the political party for the political division in which the vacancy occurs. If such vacancy be not filled by the executive committee by the Sixty-fifth day next preceding the date of the election, it shall be lawful for the chairman of the political party executive committee for the political division to Fill such vacancy, make a certificate thereof, and file the same with the officer with whom the original certificate of nomination was or might have been regularly filed. Such certificate shall be filed not later than the Sixtieth day next preceding the date of the election and, when filed, such officer shall proceed therewith in the same manner in all respects as in cases of original nominations. When any such vacancy exists because of failure to make a nomination for the office at the primary election, no nomination for such office shall be deemed filed under the provisions of this section until the required filing fee for such office candidacy shall have been paid as provided in section eight ( § 3--5--8) of this article.' (Emphasis supplied)

It will be noted that the appropriate committee, that is, in this instance, the senatorial district executive committee, could fill the vacancy up until the sixty-fifth day next preceding the election on November 5, 1968, which would have been September 1, 1968, and that the chairman of such committee, if not filled by the committee, could fill the vacancy no later than the sixtieth day next preceding the day of the election, which would have been September 6, 1968.

It is not contended that the second group of purported certificates of nomination were timely filed, because they were submitted after the time limitation contained in the statute for filing such certificates but it appears that the contention of the...