State ex rel. Brewer v. Wilson

• Decision Date: 18 October 1966
• Docket Number: No. 12608,12608
• Citation: 150 S.E.2d 592,151 W.Va. 113
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. W.E. BREWER et al. v. Amos C. WILSON et al.

Page 592

150 S.E.2d 592

151 W.Va. 113

STATE of West Virginia ex rel. W.E. BREWER et al. v. Amos C. WILSON et al.

No. 12608.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 28, 1966.

Decision Order Oct. 5, 1966.

Opinion Oct. 18, 1966.

Syllabus by the Court

W. Bernard Smith, Logan, for relators.

Phillips & Wilson, Amos C. Wilson, Logan, for respondents.

CALHOUN, Judge:

In this original proceeding in mandamus, the petitioners, W.E. Brewer, Mrs. Dorothy E. Cudden, Greenway McCloud, Sarah Raines, Don Deskins, Constance Thornbury, Ben Maynard and Mrs. Silas Easterling, seek to require the respondents, Amos C. Wilson, Roy Platt and John R. Browning, who constitute the board of ballot commissioners of Logan County, to omit the name of Wallace Jennings Deskins, Jr., from the ballot and voting machine ballot labels as the Republican nominee and candidate for the office of commissioner of the county court in the General Election to be held November 8, 1966, and instead to place on such ballots and voting machine ballot labels the name of Dr. W.E. Brewer as the Republican nominee and candidate for the office of commissioner of the county court. The petitioners are members of the Republican Party and qualified voters of Logan County who voted in the Primary Election held on May 10, 1966.

The case has been submitted to the Court for decision upon the mandamus petition, upon an answer with exhibits, upon a demurrer to the petition and upon briefs of counsel. No disputed issue of fact is presented for decision.

On October 5, 1966, the Court entered an order by which a writ as prayed for in the petition was awarded and by which the Court reserved the right later to file a written opinion setting forth the reasons for the Court's decision. This opinion has been prepared and is filed pursuant to the reservation in the order of the right to do so.

The respondents contend that Wallace Jennings Deskins, Jr., was legally nominated in the 1966 Primary Election as the Republican candidate for the office of commissioner of the county court. The petitioners contend that Deskins was not legally nominated because he was not legally qualified or eligible to be nominated in the Primary Election; that his alleged nomination is invalid; and that, therefore, Dr. W.E. Brewer is the lawful nominee and candidate because of his nomination by the Republican Party Executive Committee of Logan County.

On February 4, 1966, Deskins properly filed his certificate of announcement as a Republican candidate for the office of commissioner of the county court and paid the filing fee required by statute. It is not disputed that he thereby became a duly qualified candidate for nomination. Following the 1966 Primary Election held on May 10, 1966, the board of canvassers certified that Deskins had been duly nominated.

While tacitly conceding that Deskins became a legally qualified candidate upon the announcement of his candidacy as previously stated, the petitioners contend that, by reason of the action of the county court in redistricting the county on April 5, 1966, Deskins became ineligible and continued to be ineligible to be nominated on May 10, 1966, the date on which he claims to have been nominated by the voters.

In Wilson et al. v. County Court of Logan County, W.Va., 148 S.E.2d 353, the Court, on May 5, 1966, upheld the legality and validity of the action of the county court in redistricting the county in such a manner that the number of magisterial districts was increased from three to four. At the time Deskins became a candidate on February 4, 1966, he was a resident of Logan District. As a result of the redistricting, Deskins' residence became a part of Guyan District. He continued to be a resident of that district until after May 10, 1966, the date of the Primary Election. The petitioners contend that Deskins was not eligible to be nominated by the voters on May 10, 1966, because he was on that date a resident of Guyan District and because Okey Hager, then a resident of Guyan District, was a duly qualified commissioner of the county court for a term of office which will not expire until 1970.

Code, 1931, 3-5-4, as amended, deals generally with nomination of candidates in primary elections and contains the following language upon which the respondents rely in relation to the eligibility of Deskins to have been nominated in the 1966 Primary Election: " * * * Where two or more such candidates are to be chosen in the primary election, the candidates constituting the proper number to be so chosen who shall receive the highest number of votes cast in the political division in which they are candidates shall be declared the party nominees and choices for such office, except that candidates for the office of commissioner of the county court shall be nominated and elected in accordance with the provisions of section 23 of article VIII of the Constitution of this State. * * * " The precise language upon which the petitioners rely is that portion of the above quotation which makes an exception applicable to candidates for the office of commissioner of a county court.

Section 23 of Article VIII of the Constitution of West Virginia, referred to in the statute quoted immediately above, deals with the election and terms of office of commissioners of county courts and contains the following language: " * * * But no two of said commissioners shall be elected from the same magisterial district. And if two or more persons residing in the same district shall receive the greater number of votes cast at any election, then only the one of such persons receiving the highest number shall be declared elected, and the person living in another district, who shall receive the next highest number of votes shall be declared elected. * * * "

The constitutional provision quoted above deals only with the election and not with the nomination of commissioners of county courts. It contemplates that two or more nominees representing different political parties may be candidates in a general election, though residents of the same magisterial district, but it clearly states that only one of such persons may be elected. The statute, however, deals with both nomination and election.

In 1934, in Fansler v. Rightmire, 115 W.Va. 492, 177 S.E. 288, in construing the constitutional provision that no two commissioners shall be elected from the same magisterial district, the Court held that the word "election" had reference to general elections, not to primary elections. In that opinion the Court stated: "It is apparent that the word 'election' as used in the constitutional provision, supra, was intended to refer to the final choice of the entire electorate. Candidates at the time of the adoption of our present Constitution were chosen by party conventions. A primary was not contemplated. * * * The very language of the constitutional provision, supra, clearly implies that there may be more than one candidate from the same magisterial district." The candidates in question in that case were all members of the Democratic Party. The pertinent statute at that time contained the same language as the constitutional provision.

By Chapter 57, Acts of the Legislature, Regular Session, 1939, the legislature changed the rule of the Fansler case by the insertion of the following language in Code, 1931, 3-4-5, as amended:

" * * * Provided, however, that with respect to nominations of commissioners of county courts no two of such commissioners shall be nominated as the party candidates from the same magisterial district where more than one such commissioner is to be so nominated at any primary election, and if two or more persons residing in the same district shall in any case receive the greater number of votes cast at such primary election, then only the one of such persons receiving the highest number shall be declared nominated as the candidate of his party, and the person living in another district who shall receive the next highest number of votes shall be declared nominated as the candidate of his party, and so on to the next highest in another district; and in no event shall any such candidate be nominated from the same magisterial district wherein an already elected or otherwise qualified member of such county court resides and who will continue to hold office after the beginning of the term for which such nomination is made." (Italics supplied).

By the 1939 amendment, the legislature made it unmistakably clear that one could not be nominated in a primary election as a candidate for the office of commissioner of a county court if he resided in a magisterial district wherein there resided a previously elected commissioner whose term of office would continue after the beginning of the term for which the nomination was sought. The language quoted above from the 1939 enactment remained unchanged in Code, 1931, 3-4-5, as amended, until the language under consideration in this case became a part of Code, 1931, 3-5-4, as amended, by Acts of the Legislature, Regular Session, 1963, Chapter 64. It seems clear, therefore, that under the provisions of the pertinent statute which was in effect from 1939 until 1963, Deskins, in the circumstances of this case, would not have been eligible for nomination in the 1966 Primary Election. We must consider whether, in this respect, the law has been changed by the 1963 amendment. The Court has not heretofore had occasion to construe the statute in its present form.

In Irons v. Fry, 129 W.Va. 284, 40 S.E.2d 340, the Court quoted the constitutional provision involved in this case and also the statute as it existed at that time by reason of the enactment in 1939. In that case it was contended that S.P. Fry was not lawfully nominated in the primary election for the alleged reason that he was a resident of Union District of Wayne County and because W. Frank Harrison, a resident of the same magisterial district, was a duly qualified...