State ex rel. Forsythe v. Cabell County Court
| Citation | 48 S.E.2d 412,131 W.Va. 570 |
| Decision Date | 15 June 1948 |
| Docket Number | 10068. |
| Parties | STATE ex rel. FORSYTHE et al. v. COUNTY COURT OF CABELL COUNTY et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. Under Code, 3-4-15, as amended by Section 15, Article 4 Chapter 60, Acts of the Legislature of 1945, Regular Session the county court of every county has the power of appointing commissioners and poll clerks to serve as such at any primary election in such county and, notwithstanding a valid request of the county executive committee of each of the two eligible political parties for the appointment of a commissioner and a poll clerk, designated by such committee, for each board of election officers at each voting precinct in the county which request, upon compliance by such committee with the requirements of the statute, the county court must grant, it may appoint one qualified person of its own selection to serve as commissioner for each of such boards of election officers.
2. Though upon compliance with the provisions of the statute relating to the appointment of election boards for primary elections, Code, 3-4-15, as amended by Section 15, Article 4 Chapter 60, Acts of the Legislature of 1945, Regular Session, the county executive committee of a political party is entitled to the appointment by the county court of qualified persons selected by the committee to serve as a commissioner and as a poll clerk on each board of election officers at each precinct in the county at any primary election, the designation by the committee of any disqualified person for such appointment enables the county court, without postponing or prolonging its session, to appoint a qualified person of its own selection to serve at a primary election in the place and stead of any such disqualified person.
3. Upon compliance by the county executive committee of a political party with the provisions of the statute relating to the appointment of election boards for primary elections, Code, 3-4-15, as amended by Section 15, Article 4, Chapter 60, Acts of the Legislature of 1945, Regular Session, 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, for one commissioner and one poll clerk to serve as such on each board of election officers for each voting precinct in the county at a primary election, it is the duty of the county court to make the appointment of each of such persons, and the county court may not transfer such persons to a separate list of election officers selected and appointed by the court or select and appoint any other persons to serve in the place and stated of the persons designated by the committee; and mandamus lies to compel the court to appoint the persons designated by the committee.
4. A qualified voter who, at the time of his appointment by the county court to serve as a commissioner at a primary election, is ill and for that reason probably unable to serve, or who is a deputy of a candidate to be voted for at such primary election, but who is not shown to have received a promise, agreement or understanding that he is to be appointed as deputy by such candidate, or to have any agreement, understanding or arrangement that he shall receive any sum of money or any portion of the salary, fees or emoluments of any office for which any candidate is to be voted for at such primary election, should such candidate then be nominated and elected to such office at the ensuing general election, is not disqualified for such appointment because he is then ill or is then such deputy, and, if he is otherwise qualified, his appointment by the court to serve as commissioner is valid.
Buford Tynes and Samuel Biern, both of Huntington, for relators.
Okey P. Keadle, of Huntington, for respondents.
In this original proceeding in mandamus, the petitioners, Abe Forsythe, Chairman of the Democratic Executive Committee of Cabell County, and that committee, seek a writ from this Court to require the defendants, the County Court of Cabell County, Artie Holley, president and a commissioner, and Frank Heiner, a commissioner, of that court, to meet and, at a proper session, to appoint certain persons, whose names appear upon lists contained in a writing presented to the county court by the petitioners, to serve as commissioners and poll clerks at the various voting precincts in that county at the primary election on May 11, 1948, and to remove from lists adopted by the court the names of certain persons appointed by it to serve as such at that time.
The petitioner, the Democratic Executive Committee of Cabell County, by its chairman, presented a writing to the county court in which it requested the court to appoint who designated persons as commissioners and one designated person as poll clerk for each board of election officers at each of the voting precincts in the county. The writing contained two sets or lists of persons recommended for appointment as commissioners and one set or list of persons recommended for appointment as poll clerks. The county court, at a session which began on April 13, 1948, and finally adjourned on April 17, 1948, refused to appoint one entire list of persons submitted by the committee for appointment as commissioners, but in lieu of that list appointed a complete list of commissioners selected by the court. It filled three vacancies which occurred in the list of poll clerks submitted by the committee and refused to consider or make the appointment of any persons to be designated and requested by the committee, before the final adjournment of the session, to fill those vacancies. It removed from the list of persons submitted and recommended for appointment as poll clerks by the committee the names of two persons and, from the other list of persons submitted and recommended by it for appointment as commissioners, the name of one person, and filled the vacancies thus attempted to be made in such lists by the appointment of persons selected by the court. It also refused to remove from the list of persons selected and appointed by the court to serve as commissioners certain persons to whose appointment the petitioners objected on the ground that they were disqualified to act for the reason that each of them was at the time serving as a deputy of a public officer who was a candidate to be voted for at the primary election on May 11, 1948, or was ill and unable to serve as a commissioner at that election.
Following the foregoing action of the county court as shown by its order entered April 17, 1948, the petitioners instituted this proceeding in this Court on April 20, 1948. A rule, issued on that day, was returnable before this Court on April 22, 1948, at which time the defendants appeared and filed their written demurrer and their joint and several answer to the petition; and this proceeding was submitted for decision upon the petition, the answer of the defendants, the exhibits filed, and the oral arguments and the briefs in behalf of the respective parties.
The material facts are not disputed.
At a regularly called meeting of the Democratic Executive Committee of Cabell County, held April 8, 1948, the committee selected persons to act as election officers at the primary election to be held on May 11, 1948, and, in a writing, approved lists which contained the names of two persons to serve as commissioners and one person to serve as poll clerk for each board of election officers at each of the one hundred and thirty-one voting precincts in the county. This writing, duly signed and certified by the chairman and the secretary of the committee in its behalf and accompanied by a copy of the minutes of the meeting and a letter from the chairman, was presented to the county court on April 12, 1948. The appointment of the persons included in the lists to serve in the designated positions as election officers was requested in the letter by the chairman in behalf of the committee and by him at sessions of the county court held on April 13, 1948, and on succeeding days until the adjournment on April 17, 1948.
Pursuant to the statute, Code, 1931, 3-4-15, as amended by Section 15, Article 4, Chapter 60, Acts of the Legislature of 1945, Regular Session, the county court, which was then composed of two commissioners due to a vacancy caused by the death of the third commissioner on April 6, 1948, met in special session on Tuesday, April 13, 1948, to consider the appointment of election officers for the primary election to be held on May 11, 1948. Though the lists were presented to the court at that time and the appointment of the persons named in them was urged in behalf of the committee the court refused to make any appointments at that session and, without acting upon the lists and, despite objections and insistence by the committee upon prompt action, adjourned the session, after a short meeting each day, until Saturday, April 17, 1948.
At the meeting on April 16, 1948, the county court indicated that at a session to be held on the following day, April 17, 1948, it would appoint all the election officers and, during the forenoon of April 16, 1948, it gave notice by telegram to the chairman of the committee that on April 17, 1948, at eleven o'clock in the forenoon, it would act upon the lists submitted by the committee. At that time, after announcing that it had employed special counsel to represent it in the place of the prosecuting attorney who was a candidate to be voted for in the primary, it presented by its counsel to the chairman and the counsel for the committee a copy of an order which had already been approved and signed the which, it was...
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