State ex rel. Dostert v. Riggleman

• Decision Date: 28 March 1972
• Docket Number: No. 13197,13197
• Citation: 155 W.Va. 808,187 S.E.2d 591
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Pierre DOSTERT v. Mary Lynn RIGGLEMAN, Clerk, Circuit Court, Jefferson County, West Virginia, etc., et al.

Page 591

187 S.E.2d 591

155 W.Va. 808

STATE ex rel. Pierre DOSTERT v. Mary Lynn RIGGLEMAN, Clerk, Circuit Court, Jefferson County West Virginia, etc., et al.

No. 13197.

Supreme Court of Appeals of West Virginia.

Submitted March 21, 1972.

Decided March 28, 1972.

Syllabus by the Court

1. Mandamus lies to determine the eligibility of a candidate for an elective office and to require the board of ballot commissioners to strike or omit from a primary or general election ballot the name of a candidate who can not hold the office for which he seeks nomination and election.

2. A candidate for the office of prosecuting attorney, who is a legally qualified voter of the political party which conducts a primary election, is a member of and affiliated with such political party, is a candidate in good faith to represent such party and has paid the prescribed filing fee and who, at the time of the primary election, is not a duly licensed attorney and for that reason is ineligible to hold that office, but can remove his ineligibility before the next general election or the commencement of the next term of that office, may be nominated as a candidate for such office at such primary election.

3. He who seeks relief by mandamus must show a clear legal right to the remedy.

Jerome Radosh, Charles Town, for relator.

Kay, Casto & Chaney, Ralph C. Dusic, Jr., Charleston, Nichols & Skinner, John C. Skinner, Jr., Charles Town, for respondent (Skinner).

HAYMOND, Judge:

In this original mandamus proceeding instituted in this Court March 13, 1972, the petitioner, Pierre Dostert, a member of the Democratic party and a legally qualified registered voter of that party in Jefferson County, West Virginia, seeks a writ to compel the defendants, Mary Lynn Riggleman, Clerk of the Circuit Court of Jefferson County, and as such ex officio Chairman of the Board of Ballot Commissioners of Jefferson County, and the Ballot Commissioners of Jefferson County, West Virginia, to strike and omit the name of the defendant, Robert R. Skinner, hereinafter sometimes referred to as the defendant, from the official ballot of the Democratic party to be voted on at the primary election to be held in that county on May 9, 1972.

Upon the petition this Court issued a rule returnable March 21, 1972 and at that time this proceeding was submitted for decision upon the petition, the answer of the defendant Robert R. Skinner, and the briefs and the oral arguments of the attorney for the petitioner and the attorneys for the defendant.

The petitioner is a duly licensed attorney admitted to practice law in the courts of record of this State, is a member of the West Virginia State Bar, and is also a candidate for the nomination for the office of prosecuting attorney of Jefferson County to represent the Democratic party at the foregoing primary election.

The defendant, Robert R. Skinner, is a member and a legally qualified registered voter of the Democratic party in Jefferson County and is a candidate for the nomination for the office of prosecuting attorney at the primary election but is not a duly licensed attorney admitted to practice law in the courts of record of this State and is not a member of the West Virginia State Bar. The defendant is, however, a member of the senior class of the College of Law of West Virginia University, is nineteenth in scholarship in a class of seventy-eight members, and, except for some unforeseen circumstance, will graduate on May 14, 1972 and become a duly licensed attorney and be admitted to practice law in the courts of this State before the commencement of the next four-year term of office of prosecuting attorney of Jefferson County on January 1, 1973, for which he seeks nomination at the foregoing primary election, and if nominated, will seek election at the general election in November, 1972. He has duly filed within the time provided by law a certificate declaring himself a candidate for the nomination for the office of prosecuting attorney in the form prescribed by Section 7, Article 5, Chapter 3, Code, 1931, as amended, in which he states that he is a candidate for that office to represent the Democratic party in the primary election; that he is a legally qualified voter and resident of that county; that he is eligible to hold such office; that he is a member of and affiliated with the Democratic party; and that he is a candidate for such office in good faith.

The petitioner seeks the writ on the ground that inasmuch as the defendant Robert R. Skinner is not a duly licensed attorney and is not eligible to hold the office of prosecuting attorney and can not be a candidate for the nomination for that office at the primary election.

Though Article IX, Section 1, of the Constitution of this State provides that 'The voters of each county shall elect a surveyor of lands, a prosecuting attorney, a sheriff, and one and not more than two assessors, who shall hold their respective offices for the term of four years.', and though Section 17, Article 1, Chapter 3, Code, 1931, as amended, directs that 'There shall be elected, * * * at the general election to be held in the year nineteen hundred and sixty-four, and in every fourth year thereafter, a sheriff, prosecuting attorney, * * *', and though Section 1, Article 4, Chapter 7, Code, 1931, as amended, recites the extensive and varied duties of a prosecuting attorney, there is no provision in the Constitution or in any statute of this State which prescribes the qualifications or the requirements necessary for a person to be eligible to that office. State ex rel. Summerfield v. Maxwell, 148 W.Va. 535, 135 S.E.2d 741. Despite the absence of any constitutional or statutory qualifications or requirements for that office, this Court held in Point 3 of the syllabus in that case that: 'A person who is not an attorney, duly licensed or authorized to practice law in the courts of this State, is ineligible to hold the office of prosecuting attorney.'

It is now clearly established by the recent decisions of this Court, that mandamus lies to determine the eligibility of a candidate for an elective office and to require the board of ballot commissioners to strike or omit from a primary or general election ballot the name of a candidate who can not hold the office for which he seeks nomination and election.

The petitioner cites and relies upon the Summerfield case to support his prayer for the writ which he seeks. That case, however, is clearly distinguishable from and does not control the decision in the instant proceeding. In that case, Prowse, a candidate for the nomination for the office of prosecuting attorney at the primary election in May, 1964, was not a duly licensed attorney and did not seek and could not attain that status before the commencement of the term of office of prosecuting attorney of Fayette County after the primary and the general election in 1964, which term began January 1, 1965, or at any other time. Here, the defendant Skinner is a scholastically capable member of the senior class of the College of Law of West Virginia University and in the absence of some unexpected circumstance will graduate and become a duly licensed attorney authorized to practice in the courts of this State before the general election in 1972 and before the commencement of the term of office of prosecuting attorney on January 1, 1973.

In determining the question as to when the conditions of eligibility to office must exist, whether at the time of the primary election, the time of the general election, the commencement of the term of office, or the induction into office, the language used in constitutional or statutory provisions relating to the qualifications necessary for the office must be given controlling effect. Adams v. Londeree, 139 W.Va. 748, 83 S.E.2d 127; Slater v. Varney, 136 W.Va. 406, 68 S.E.2d 757. The language of such provisions may expressly or by necessary implication specify the time when the eligibility must vest. Where such is the case, the candidate must possess the necessary qualifications at that time. If the Constitution or the statute specifies that the qualifications of a candidate must exist at the time of the election a candidate who does not possess such qualifications at that time is not eligible even though the disqualifications ceased to exist before the beginning of the term of office or later. If the Constitution or statutes do not specify the time when the conditions of eligibility must exist, it is necessary for the courts to have recourse to some other means of determining the time at which the qualifications must exist. As such provisions are necessarily variant it is not surprising that courts have reached different conclusions. 42 Am.Jur., Public Officers, Sections 39 and 40.

This Court in numerous cases has considered the question of eligibility of candidates to be nominated or elected to various offices and their eligibility to hold such offices and has determined when, with respect to a primary election or a general election or the commencement of the term of office, the eligibility of the candidate for such office must exist. Among those cases are Gorrell v. Bier, 15 W.Va. 311; Dryden v. Swinburne, 20 W.Va. 89; Orndorff v. Potter, 125 W.Va. 785, 25 S.E.2d 911; State ex rel. Morrison v. Freeland, 139 W.Va. 327, 81 S.E.2d 685; State ex rel. Brewer v. Wilson, 151 W.Va. 113, 150 S.E.2d 592.

In the Dryden case this Court held that a candidate for the office of circuit clerk who was elected to that office but who, at the time of the election was not a citizen of this State and for that reason was not entitled to vote, could not be elected to that office. Under Article IV, Section 4, of the Constitution of this State, which provides that no person except citizens entitled to vote, shall be elected or appointed to any State, county or municipal office, the election of such person to the office of circuit clerk was a nullity. In the Morrison ...