State ex rel. Harwood v. Tynes, 10469

• Decision Date: 08 April 1952
• Docket Number: No. 10469,10469
• Citation: 137 W.Va. 52,70 S.E.2d 24
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. HARWOOD, v. TYNES et al.

Page 24

70 S.E.2d 24

137 W.Va. 52

STATE ex rel. HARWOOD, v. TYNES et al.

No. 10469.

Supreme Court of Appeals of West Virginia.

Submitted March 8, 1952.

Decided March 11, 1952.

Opinion Filed April 8, 1952.

Syllabus by the Court.

'When a candidate for nomination in a primary election files a certificate with the clerk of the circuit court, from which it appears that he is eligible to hold the office for which he is a candidate, the board of ballot commissioners have no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office. The duty of said board is to place his name upon the ballot and allow the question of his eligibility to be determined by a competent tribunal, should he be elected thereto.' Syllabus, State ex rel. McKnight v. Board of Ballot Commissioners of Wetzel County, 86 W.Va. 496 .

Thomas W. Harvey, Jr., Huntington, for relator.

Buford C. Tynes, Tom T. Baker, Huntington, for respondents.

HAYMOND, Judge.

In this original proceeding, instituted in this Court on February 22, 1952, the petitioner, Jane Marie Harwood, seeks a writ of mandamus to compel the defendants, Buford C. Tynes, John Hallanan, and M. C. Blake, composing the Board of Ballot Commissioners of Cabell County, West Virginia, to place her name upon the official ballot of the Democratic Party to be used in the primary election to be held on the 13th day of May, 1952, as a candidate for member of the Cabell County Democratic Executive Committee from the Seventh Ward of the City of Huntington.

Upon the filing of the petition, this Court awarded a rule returnable February 27, 1952, and on February 26, 1952, the defendants filed their written demurrer to the petition. The Court having been advised that an issue of fact would be presented continued the hearing of this proceeding from February 27, 1952, until March 8, 1952, to enable the respective parties to offer evidence in the form of depositions. On February 27, 1952, the return day of the rule, the petitioner filed an amended petition and the defendants filed a joint and separate answer to the petition; and on March 3, 1952, the petitioner filed a written demurrer and a special replication to the answer of the defendants. On March 8, 1952, depositions in behalf of the respective parties were filed and at that time this proceeding was submitted for decision upon the foregoing pleadings, the depositions, and the written briefs and the oral arguments of counsel respectively representing the petitioner and the defendants. By order entered March 11, 1952, this Court awarded a writ of mandamus requiring the defendants to place the name of the petitioner upon the official ballot of the Democratic Party as a candidate for the office which she seeks, and this opinion has been since prepared and is now filed for the purpose of setting forth the reasons for issuing the writ.

The petition and the amended petition allege that the petitioner is a citizen and a resident of the City of Huntington, Cabell County, West Virginia; that she resides at 2015 Wiltshire Boulevard in the Seventh Ward of that city; that she is a qualified voter in Cabell County, West Virginia, and a member of the Democratic Party; that on January 24, 1952, she paid the fee required by law and filed with the clerk of the Circuit Court of Cabell County a certificate of candidacy, signed by her by the name of Mrs. Ivan Harwood and duly acknowledged, which is in these terms: 'I, Mrs. Ivan Harwood, hereby certify that I am a candidate for the nomination for the office of Committee-Woman, Democratic Executive Committee, Seventh Ward, to represent the Democratic party, and desire my name printed on the official ballot of said party to be voted at the primary election to be held on the 13th day of May, 1952; that I am a legally qualified voter of the county of Cabell, State of West Virginia; that my residence is number 2015 of Wiltshire Boulevard street/road, in the city (or town) of Huntington, in Cabell County in said State; that I am eligible to hold the said office; that I am a member of and affiliated with said political party; that I am a candidate for said office in good faith.' The certificate, in the foregoing form, was signed by the petitioner by the name of Mrs. Ivan Harwood and was duly acknowledged by her before a notary of Cabell County.

The petitioner charges that the defendants, as the Board of Ballot Commissioners of Cabell County, West Virginia, refuse and deny her demand that her name be printed upon the official ballot of the Democratic Party to be used in the primary election to be held on May 13, 1952. She prays that the defendants be required to place her name on such official primary ballot and that she be granted general relief.

By their answer the defendants admit that the petitioner is a citizen and a resident of the City of Huntington; that she resides at 2015 Wiltshire Boulevard in that city; that she is a qualified voter of Cabell County; that she filed with the clerk of the Circuit Court of Cabell County a certificate of candidacy and paid the fee required by law as alleged in her petition. The defendants, however, deny that the petitioner is or ever has been openly known to be a bona fide member of the Democratic Party, and charge that the petitioner was duly and regularly registered as a Republican on the 23rd day of April, 1943; that she remained so registered continuously until midnight of February 9, 1952; that during that period she was openly known to be a bona fide member of the Republican Party, and not of the Democratic Party; and that when she has voted during that period she has voted in the Republican primary elections held in Cabell County. The defendants admit the charge of the petitioner that they refuse to place her name upon the official ballot of the Democratic Party; but they deny that she is entitled to have her name placed upon such ballot. They ask that a writ of mandamus be refused and that they be dismissed from this proceeding.

Despite the statements of the petitioner and her husband that they considered her to be a member of the Democratic Party, and the statements of some or her friends and close acquaintances that they always regarded her as a Democrat, contained in the depositions filed in her behalf, the depositions as a whole show that the petitioner since 1943 has been registered as a Republican and that in the primary elections in Cabell County in which she has voted since 1943 she has voted as a Republican in the primary elections of that party; and it is obvious that the defendants, for that reason, refuse to place her name on the official ballot of the Democratic Party for the primary election to be held in May, 1952.

Section 6, Article 4, Chapter 3, Code, 1931, as amended, provides in part that any person who is eligible to hold an office, including that of member of a state or a county executive committee, may file with the secretary of state, if the office is to be filled by the voters of more than one county, or with the clerk of the circuit court, if the office is to be filled by the voters of a county or a subdivision less than a county, a certificate declaring himself to be a candidate for the nomination for such office; that such certificate shall be signed and acknowledged by the candidate before some officer qualified to administer oaths who shall certify such announcement of the candidate; and that no person may be a candidate for nomination for office in a political party unless it be openly known that such...