State ex rel. Cline v. Hatfield

• Decision Date: 20 September 1960
• Docket Number: No. 12069,12069
• Citation: 145 W.Va. 611,116 S.E.2d 703
• Parties: STATE of West Virginia ex rel. Oza CLINE et al. v. Joe W. HATFIELD et al.
• Court: West Virginia Supreme Court

Page 703

116 S.E.2d 703

145 W.Va. 611

STATE of West Virginia ex rel. Oza CLINE et al. v. Joe W. HATFIELD et al.

No. 12069.

Supreme Court of Appeals of West Virginia.

Submitted Sept. 14, 1960.

Decided Sept. 20, 1960.

Syllabus by the Court

Two Judges being of the opinion that mandamus is not a proper remedy to compel a board of ballot commissioners to omit from the official ballot the name of a duly nominated candidate for office to be voted on in a general election; two Judges being of the opinion that mandamus is a proper remedy in such a case; and one Judge being of the opinion that mandamus is a proper remedy in such a case, but that it should not be granted because the candidate is not ineligible to be elected, the writ will be denied.

Jenkins & Jenkins, J. E. Jenkins, Jr., Huntington, for relators.

Martin C. Bowles, Leonard Higgins, Charleston, for respondents.

BERRY, Judge.

In this original proceeding in mandamus filed in this Court, the petitioners, seven citizens, voters and taxpayers of Mingo County, seek to compel the respondents, the duly qualified and acting ballot commissioners for Mingo County, to omit the name of respondent, Howard Chambers, as the Democratic candidate for Sheriff of Mingo County, from the ballot to be prepared for the general election to be held on November 8, 1960.

The petitioners allege that one Thurman Chambers was duly elected Sheriff of Mingo County at the general election in November, 1956, for the term expiring December 31, 1960; Thurman Chambers duly qualified and assumed the duties of the office of Sheriff of Mingo County on January 1, 1957. The respondent, Howard Chambers, was duly appointed and qualified as a deputy sheriff of Mingo County under Thurman Chambers and served until January 28, 1957. On January 28, 1957, Thurman Chambers died and on January 29, 1957, respondent Howard Chambers, as appointed by the Mingo County Court and took office as Sheriff of Mingo County and has been and now is Sheriff of Mingo County for the term which will expire on December 31, 1960.

The respondent, Howard Chambers, filed an answer, admitting the above, but adding that his appointment by the Mingo County Court was, pursuant to law, only until the next general election in November, 1958, and that, at the general election in November, 1958, he was elected to the unexpired term of Sheriff of Mingo County, which unexpired term extended from the election in November, 1958 to December 31, 1960. Howard Chambers, the respondent, in his answer, also denies the authority of the other respondent ballot commissioners to inquire into his eligibility or to omit his name from the official ballot for the general election to be held on November 8, 1960.

On September 8, 1960, a rule was granted by this Court returnable to September 14, 1960, at which time the matter was argued before the Court and submitted for decision on arguments and briefs. An order was entered by the Court on September 19, 1960, refusing the writ prayed for in this case. This opinion is written now giving the reasons for the refusal to grant the writ.

This is the latest of three cases that this Court has had before it since the primary election in May of this year on petitions fro writs of mandamus to compel the board of ballot commissioners to omit the names of or to enjoin and restrain such board of ballot commissioners in three counties of this State from placing the names of duly nominated candidates for sheriff on the ballot to be voted on at the general election to be held November 8, 1960. The grounds or reasons for the disqualification and ineligibility of the candidates urged in each case are the same. That is, they are disqualified or ineligible to be elected sheriff in their respective counties because each has served as a deputy sheriff to the duly elected sheriff for the four year term beginning January 1, 1957 and ending December 31, 1960, under provisions of Article IX, Section 3 of the Constitution of West Virginia, which provides that a person who has acted as deputy sheriff for a sheriff duly elected to a full term is ineligible to be elected sheriff for the next succeeding full term. The writs were granted in two cases and refused in one.

In the case of State ex rel. Zickefoose et al. v. West et al., W.Va., 116 S.E.2d 398, and State ex rel. Duke v. O'Brien, W.Va., 117 S.E.2d 353, the writs were granted and the decisions were three to two. Judges Haymond and Berry dissented in both cases on the ground that the extraordinary proceeding of mandamus was not the proper remedy to be used in such cases because it compelled the board of ballot commissioners to omit the names of the duly nominated candidates for sheriff from the ballot, which they had no authority or duty to do.

The title to public office should not be adjudicated upon application for mandamus. The proper remedies, as indicated in Judge Haymond's dissenting opinion in the Zickefoose case, are a quo warranto proceeding, a proceeding upon an information in the nature of a writ of quo warranto, or an election contest. See Code, 53-2-1 and Code, 3-9-2; Dryden v. Swinburn, 15 W.Va. 234; Gorrell v. Bier, 15 W.Va. 311; Dryden v. Swinburne, 20 W.Va. 89; State ex rel. Savage v. Robertson, 124 W.Va. 667, 23 S.E.2d 281; Orndorff v. Potter, 125 W.Va. 785, 25 S.E.2d 911; Irons v. Fry, 129 W.Va. 284, 40 S.E.2d 340; Slater v. Varney, 136 W.Va. 406, 68 S.E.2d 757, 70 S.E.2d 477.

The appropriate time to ascertain whether or not a candidate is ineligible to hold an office is after an election has been held electing such candidate to the office. In this case, it would be the general election and not the primary election. It may never be necessary to make such inquiry as such candidate may be defeated in the election, withdraw or die, and in many cases the ineligibility or disqualification of a candidate in an election may be cured; therefore, to disqualify a candidate in such case by mandamus before an election may inflict a grave injustice. Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302; State ex rel. Lockhart, Sr. et al. v. Rogers, Mayor et al., 134 W.Va. 470, 61 S.E.2d 258.

It was in the Pack case which was decided in 1918 that the writ of mandamus was used for the first time by this Court to compel the board of ballot commissioners to remove the name of a duly and regularly nominated candidate from the ballot because of an alleged ineligibility or disqualification. It was not so used again until the Zickefoose case in 1960, and the reason given for the ineligibility or disqualification in the Pack case was later held by this Court not to be a disqualification or to render a candidate ineligible to hold office. State ex rel. Hall v. County Court of Gilmer County, 87 W.Va. 437, 105 S.E. 693; Varney v. County Court of Mingo County, 102 W.Va. 325, 135 S.E. 179; State ex rel. Bumgardner v. Mills, 132 W.Va. 580, 53 S.E.2d 416. If a quo warranto proceeding, a proceeding upon an information in the nature of quo warranto, or an election contest had been used in the Pack case instead of mandamus, perhaps the candidate who was nominated would not have been found to be ineligible or disqualified.

Except in the isolated instances of the Pack and Zickefoose cases, the writ of mandamus, as heretofore used in cases concerned with the right of a candidate to be on a ballot, has been issued to compel the board of ballot commissioners to place the name of a duly nominated candidate on the official ballot without inquiring into his eligibility and qualification, as such board is without the authority or power to inquire into such matters but has only the duty to place the name on the ballot if the candidate has been duly and regularly nominated and such result properly recorded and certificate issued thereon regular on its face. The decided cases indicate that it should be used only in the latter manner in such cases. State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W.Va. 496, 103 S.E. 399; State ex rel. Harwood v. Tynes, 137 W.Va. 52, 70 S.E.2d 24; State ex rel. Schenerlein v. City of Wheeling, W.Va., 108 S.E.2d 788.

In the case of State ex rel. Duke v. O'Brien, supra, the petition clearly was for injunctive relief because the prayer was to enjoin, restrain or prohibit the board of ballot commissioners from placing the name of the duly nominated candidate for sheriff on the ballot. In other words, the writ of mandamus was used as an injunction to obtain equitable relief and Judges Haymond and Berry are of the opinion that it could not be so used. Not only should the writ of mandamus not be used for injunctive proceeding, but an injunctive proceeding cannot be used as a substitute for an election contest to determine the eligibility or qualification of a candidate. See Evans v. Charles, 133 W.Va. 463, 56 S.E.2d 880; Lockard v. Wiseman, 139 W.Va. 306, 80 S.E.2d 427.

The reasons for not using mandamus in a case of this kind are clearly set out in the two dissenting opinions filed by Judges Haymond and Berry in the Zickefoose case, with exhaustive authorities cited. Reference is here made to those dissenting opinions with the citations of authorities showing that the writ of mandamus should not be used in such cases. Among them were the comparatively recent cases of State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W.Va. 496, 103 S.E. 399; State ex rel. Harwood v. Tynes, 137 W.Va. 52, 70 S.E.2d 24; State ex rel. Schenerlein v. City of Wheeling, W.Va., 108 S.E.2d 788, which have not been overruled by this Court and still remain the law of this State.

It is true that the Zickefoose case apparently held the opposite to these decided cases because the question of eligibility to hold office was disposed of by a writ of mandamus before the candidate was elected. However, these cases were not specifically overruled and the reason for awarding the writ in the Pack case, which was used as authority for awarding the...