State ex rel. Evans v. Kennedy

• Citation: 145 W.Va. 208,115 S.E.2d 73
• Decision Date: 21 June 1960
• Docket Number: No. 12030,12030
• Court: Supreme Court of West Virginia
• Parties: STATE ex rel. Donald EVANS et al. v. Grant KENNEDY et al.

Page 73

115 S.E.2d 73

145 W.Va. 208

STATE ex rel. Donald EVANS et al. v. Grant KENNEDY et al.

No. 12030.

Supreme Court of Appeals of West Virginia.

Submitted May 2, 1960.

Decided May 4, 1960.

Opinion Filed June 21, 1960.

Syllabus by the Court

1. By virtue of Section 15, Article 4, Chapter 3, Code, 1931, as amended, the county court of every county is authorized and empowered to appoint, subject to certain stated limitations and restrictions, all commissioners and poll clerks to serve as such at each voting precinct in the county at any primary election in such county; but if the county executive committee of an eligible poltical party complies with the applicable provisions of the statute in presenting to the county court of any county a writing signed by the committee or by its chairman or secretary in its behalf requesting the appointment of a qualified voter of such party, who is otherwise qualified to serve as an election officer, for one commissioner and one poll clerk for each board of election officers at each voting precinct in the county at a primary election, it is the duty of the county court to make the requested appointment of each of such persons; and mandamus lies to compel the county court to appoint the persons designated by the executive committee.

2. If the county executive committee of a political party fails to comply with the provisions of the statute in presenting to the county court a writing requesting the appointment of qualified persons to serve as a commissioner and a poll clerk for each board of election officers at such voting precinct in the county at a primary election, the county court is not required to accept such list or to appoint the persons designated in it but instead may appoint qualified persons of its own selection to serve as such election officers.

3. The county executive committee of a political party may not delegate the right conferred upon such committee by the provisions of Section 15, Article 4, Chapter 3, Code, 1931, as amended; and a list of election officers prepared by the chairman, by virtue of authority attempted to be delegated to him by the committee, does not satisfy the requirements of the statute and the county court can not be compelled to appoint the persons designated in such list.

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

5. 'A person who is under no duty to perform an act sought to be enforced in a proceeding in mandamus, who has no substantial and peculiar interest in the subject matter of the litigation, or whose interest will not be affected by a judgment awarding the writ, may not intervene as a defendant in such proceeding.' Point 1, syllabus, State ex rel. Thompson v. Fry, 137 W.Va. 321 .

John F. Bronson, Williamson, for relators.

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

HAYMOND, Judge.

In this original proceeding in mandamus instituted in this Court on April 18, 1960, the petitioners, Donald Evans, Della Wellman and Ivan Napier, seek a writ of mandamus to compel the defendants, Grant Kennedy, W. A. Myers and James R. Farley, members of the County Court of Mingo County, West Virginia, to reconvene in special meeting and to reject a list of persons whose appointment as election commissioners and poll clerks for the primary election to be held on May 10, 1960, had been requested by the chairman of the Mingo County Democratic Executive Committee and in lieu of the appointment of the persons named in such list to appoint persons selected by the county court to serve as such election commissioners and poll clerks or, in the alternative, to compel the defendants to reconvene in special meeting and ascertain and determine whether the certificate of the chairman of the Mingo County Democratic Executive Committee reflected the action of such committee.

The petitioners Donald Evans and Della Wollman are members of the executive committee and the petitioner Ivan Napier was a candidate for member of the board of education of Mingo County at the primary election on May 10, 1960.

To the petition the defendant Grant Kennedy filed his demurrer and his separate answer, with which were filed certain exhibits; and Morrie Blair and ten other members of the Mingo County Democratic Executive Committee filed their petition, in which they asked permission to intervene and be made parties defendant in this proceeding.

On May 2, 1960, this proceeding was submitted for decision upon the foregoing pleadings, a stipulation agreed to by the respective parties, affidavits filed in behalf of the petitioners and affidavits filed by the defendant Grant Kennedy in behalf of the defendants, and the oral arguments and the briefs of the attorneys in behalf of the respective parties.

By order entered May 4, 1960, this Court held that the petitioners were not entitled to a writ of mandamus as prayed for and refused to award such writ and that, under the facts and circumstances disclosed by the pleadings filed and the evidence introduced, Morrie Blair and the ten other members of the Mingo County Democratic Executive Committee were not entitled to intervene and be made parties to this proceeding. This opinion has been prepared and is now announced for the purpose of stating the reasons which prompted this Court to deny the writ sought by the petitioners.

The petitioners base their right to a writ of mandamus in this proceeding on the ground, alleged in the petition, that at a meeting of the Mingo County Democratic Executive Committee held on April 2, 1960, for the purpose of selecting persons to serve as commissioners and poll clerks at the primary election to be held on May 10, 1960, at which meeting, according to the stipulation, a quorum of the committee was present, the list of such persons presented to the county court at its meeting on April 5, 1960, which was the fifth Tuesday preceding the day on which the primary election was to be held, was not prepared or approved by the executive committee but was prepared by its chairman by virtue of the authority delegated to him by the committee to prepare such list.

Section 15, Article 4, Chapter 3, Code, 1931, as amended, provides to the extent here pertinent that 'The county court of every county shall hold a regular or special session at the courthouse of the county on the fifth Tuesday preceding the day on which any primary election is to be held, and shall appoint for each precinct in the county three commissioners of election and two poll clerks, who shall be legal voters in the magisterial district in which such precinct is located. * * *. They shall be selected from the two political parties which, at the last preceding general election, cast the highest and next highest number of votes in the county in which the election is to be held, and not more than two of such commissioners and one clerk shall belong to the same political party: * * *. If, at any time prior to or during such session, the county executive committee of either political party from which such commissioners of election and poll clerks are to be selected or appointed, as herein provided, shall present to such court a writing signed by them, or by the chairman or secretary of such committee on their behalf, requesting the appointment of a qualified voter of their political party, for commissioner and/or poll clerk, who is otherwise qualified to act as such under the provisions of this chapter, it shall be the duty of the county court to appoint the person so named in such writing as such commissioner and/or poll clerk. * * *.'

Under the foregoing provisions of the statute the county court of every county is authorized and empowered to appoint, subject to certain stated limitations and restrictions, all commissioners and poll clerks to serve as such at each voting precinct in the county at any primary election in such county; but if the county executive committee of an eligible political party complies with the applicable provisions of the statute in presenting to the county court of any county a writing signed by the committee or by its chairman or secretary in its behalf requesting the appointment of a qualified voter of such party, who is otherwise qualified to serve as an election officer, for one commissioner and one poll clerk for each board of election officers at each voting precinct in the county at a primary election, it is the duty of the county court to make the requested appointment of each of such persons; and mandamus lies to compel the county court to appoint the persons designated by the executive committee. State ex rel. Bullard v. County Court of Clay County, 141 W.Va. 675, 92 S.E.2d 452; State ex rel. Bell v. The County Court of Clay County, 141 W.Va. 685, 92 S.E.2d 449; State ex rel. Forsythe v. The County Court of Cabell County, 131 W.Va. 570, 48 S.E.2d 412; Gainer v. County Court of Calhoun County, 120 W.Va. 409, 199 S.E. 878; State ex rel. Wilson v. County Court of Wayne County, 92 W.Va. 71, 114 S.E. 509; Franklin v. County Court of McDowell County, 86 W.Va. 479, 103 S.E. 330. If, however, the county executive committee of a political party fails to comply with the provisions of the statute in presenting to the county court a writing requesting the appointment of qualified persons to serve as a commissioner and a poll clerk for each board of election officers at each voting precinct in the county at a primary election, the county court is not required to accept such list or to appoint the persons designated in it but instead may appoint qualified persons of its own selection to serve as such election officers. State ex rel. Bullard v. County Court of Clay County, 141 W.Va. 675, 92 S.E.2d 452; State ex rel. Forsythe v. The County Court of Cabell County, 131 W.Va. 570, 48 S.E.2d 412; State ex rel. Robertson v. The County Court of Kanawha County, 131 W.Va. 521, 48 S.E.2d 345. The county executive committee of a political party may not...