State ex rel. Bromelow v. Daniel

• Decision Date: 18 September 1979
• Docket Number: No. 14514,14514
• Citation: 258 S.E.2d 119,163 W.Va. 532
• Parties: STATE ex rel. Kenneth Richard BROMELOW v. John W. DANIEL, Mayor, Village of Bethlehem et al.
• Court: West Virginia Supreme Court

Page 119

258 S.E.2d 119

163 W.Va. 532

STATE ex rel. Kenneth Richard BROMELOW v. John W. DANIEL, Mayor, Village of Bethlehem et al.

No. 14514.

Supreme Court of Appeals of West Virginia.

Sept. 18, 1979.

Syllabus by the Court

1. "W.Va.Const., art. 4 § 8 establishes authority for the Legislature to provide by general law for 'terms of office, powers, duties, and compensation of all public officers and agents, and the manner in which they shall be elected . . .'; however, that constitutional section does not provide for the establishment of qualifications for municipal office. W.Va.Const., art. 4 § 4 is the exclusive constitutional authority for the establishment of qualifications for municipal office and any qualification in excess of that provision is unconstitutional by its very terms and under W.Va.Const., art. 3 § 10, art. 3 § 17, and art. 3 § 7." Syllabus, Marra v. Zink, W.Va., 256 S.E.2d 581 (1979).

2. Because there is an important public policy interest in determining the qualifications of candidates in advance of an election, this Court does not hold an election mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus case.

Benjamin R. Honecker, Wheeling, for relator.

T. Carroll McCarthy, Jr., Wheeling, for respondents.

MILLER, Justice:

In this original mandamus proceeding, a candidate for the office of mayor contends that an eligibility requirement imposed on candidates for the offices of mayor or recorder by the Village of Bethlehem is void. The ordinance requires that such a candidate shall submit written evidence to the village council that he is bondable as a public official by an approved corporate surety company for the sum of $100,000. This written submission must be made 45 days prior to the election. ¹

Although relator Kenneth Richard Bromelow submitted a proper nomination petition, he failed to submit written evidence of his bondability 45 days prior to the election, and therefore the village recorder refused to permit his name to appear on the ballot. This mandamus action was brought to compel the recorder to place his name on the ballot. We hold the bondability requirement to be void.

In State ex rel. Piccirillo v. City of Follansbee, W.Va., 233 S.E.2d 419 (1977), we invalidated both the State statute and a city ordinance which required a $100 property qualification in order to be eligible as a candidate for the office of city council. The holding in Piccirillo was based on the Equal Protection Clause, Article III, Section 17 of the West Virginia Constitution, and was predicated on the principle that the right to run for office is fundamental, and consequently the State must demonstrate a compelling interest to justify a statutory restriction on such right. ²

At our last Term, in Marra v. Zink, W.Va., 256 S.E.2d 581 (1979), we considered the validity of a provision in the city charter which set a one-year residency requirement for the office of city council under W.Va.Code, 8-5-11, ³ and formulated a new analytical framework for testing the validity of restrictions on the right to run for municipal office. The single syllabus of Marra concluded that qualification requirements for municipal office are principally determined by Article IV, Section 4 of the West Virginia Constitution:

"W.Va.Const., art. 4 § 8 establishes authority for the Legislature to provide by general law for 'terms of office, powers, duties, and compensation of all public officers and agents, and the manner in which they shall be elected . . .'; however, that constitutional section does not provide for the establishment of qualifications for municipal office. W.Va.Const., art. 4 § 4 is the exclusive constitutional authority for the establishment of qualifications for municipal office and any qualification in excess of that provision is unconstitutional by its very terms and under W.Va.Const., art. 3 § 10, and art. 3 § 17, and art. 3 § 7."

Essentially, Marra mandates that no greater qualification for candidacy to a municipal office can be imposed than the qualification set in Article IV, Section 4 of the West Virginia Constitution, which is that a candidate be a citizen entitled to vote. ⁴ Because of Marra's precise applicability to the present case, we do not deem that further discussion of this point is warranted.

The respondents raise several procedural errors which they assert should warrant the dismissal of the action. The first is that a remedy by original mandamus in this Court is not proper, since the relator initially filed a similar mandamus action in the Circuit Court of Ohio County and was denied relief. Consequently, they argue that his remedy should have been by way of an appeal to this Court. While ordinarily we would agree with the respondents, this Court has recognized what may be termed a liberal mandamus procedure in election cases, as expressed in State ex rel. Maloney v. McCartney,W.Va., 223 S.E.2d 607, 615-16 (1976), Appeal dismissed sub nom. Moore v. McCartney, 425 U.S. 946, 96 S.Ct. 1689, 48 L.Ed.2d 190:

"While this action was technically brought in mandamus, it is not circumscribed by the technical rules which ordinarily govern mandamus in West Virginia. . . . A consistent line of decisions of this Court during the last fifteen years clearly recognizes that the intelligent and meaningful exercise of the franchise requires some method of averting a void or voidable election. Consequently this Court has recognized that some form of proceeding must be available by which interested parties may challenge in advance of a primary or general election the eligibility of questionable candidates in order to assure that elections will not become a mockery. . . ."

Among the authorities cited in Maloney for the greater flexibility of mandamus in election cases were State ex rel. Dostert v. Riggleman, 155 W.Va. 808, 187 S.E.2d 591 (1972); State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592 (1966); State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741 (1964); State ex rel. Cline v. Hatfield, 145 W.Va. 611, 116 S.E.2d 703 (1960); State ex rel. Duke v. O'Brien, 145 W.Va. 600, 117 S.E.2d 353 (1960). As a corollary to Maloney's statement, the principal purpose of the liberalized election mandamus is to provide an expeditious pre-election hearing to resolve eligibility of candidates, so that the voters can exercise their fundamental franchise as to all eligible candidates.

Because we have historically recognized that there is an important public policy interest in determining the qualifications of candidates in advance of an election, we have not held an election mandamus proceeding to the same degree of procedural rigor as an ordinary mandamus case. Relator asserts that he was influenced to apply to the circuit court by Rule XVIII of the Rules of Practice in the Supreme Court of Appeals, which encourages filing in the circuit court, ⁵ and by his impression that Piccirillo, supra, appeared to control the issue. Once the adverse decision was made in the circuit court on May 21, 1979, relator asserts that he was unable to prepare the record on appeal and bring it before this Court in time to permit us to act prior to June 5, 1979, the election date.

Here, the issues involved were purely legal. While it is true that factual testimony was taken in the circuit court, it mainly related to the reason...