State ex rel. Lockhart v. Rogers

• Decision Date: 09 October 1950
• Docket Number: No. 10283,10283
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. LOCKHART et al. v. ROGERS, Mayor, et al.

Page 258

61 S.E.2d 258

134 W.Va. 470

STATE ex rel. LOCKHART et al. v. ROGERS, Mayor, et al.

No. 10283.

Supreme Court of Appeals of West Virginia.

Submitted May 25, 1950.

Decided May 29, 1950.

Opinion Filed July 15, 1950.

Dissenting Opinion Oct. 9, 1950.

Syllabus by the Court.

1. The provisions of Section 28, Chapter 3, Acts of the Legislature, 1929, Municipal Charters, authorize the nominations of persons for the offices of mayor and councilman of the City of Welch by certificate in accordance with Chapter 40, Article 4, Acts of the Legislature, Regular Session, 1941, and Code, 3-4-30.

2. Where only two political parties are participating in a municipal election, in the interest of fairness and honesty in elections each is entitled to require the appointment of a proper number of qualified persons as commissioners and poll clerks to conduct such election, upon recommendation of the representative of such a party.

Thornton G. Berry, Jr., Leon P. Miller, Welch, for petitioners.

Albert A. Barley, J. M. Crockett, Welch, Charles C. Wise, Jr., Charlestown, for respondents.

LOVINS, President.

This original proceeding in mandamus brought by Edward Lockhart, Sr., Morton M. Lipman, Joe A. Marino, Fitzhugh Smith, Henry J. Capehart, Jr., and Hal B. Belcher, petitioners, against L. E. Rogers, mayor of the City of Welch, Meyer Bell, Howard Sly, Jess Mullins, Joseph G. Travis and W. B. Swope, members of the council of that city, Hobart E. Payne, city clerk, and the City of Welch, a municipal corporation, is for the purpose of compelling the defendants to place the names of the petitioners on the official ballot to be used in voting at the municipal election held in the City of Welch on June 6, 1950, and to compel defendants to appoint certain persons recommended as commissioners and poll clerks to represent the Democratic party in conducting such election.

Petitioners allege that Lockhart was legally nominated for the office of mayor of said city; and that the other petitioners were nominated for the office of members of the council thereof, to be voted for at the municipal election above mentioned. They further allege that such nominations were authorized by Chapter 40, Acts of the Legislature, 1941, and Code, 3-4-30.

It is also alleged that certain legally qualified persons were duly recommended for appointment as commissioners of election and poll clerks representing the Democratic party to conduct such municipal election.

Defendants contend that Section 25 of Chapter 3, Acts of the Legislature, Regular Session, 1929, Municipal Charters (the charter of the City of Welch), prescribes the only method for nominating persons to be voted for as municipal officers; that at the time election officers were to be appointed for holding said election the Democratic party did not recommend or request the appointment of any persons to represent it at such election; and that the council of the City of Welch 'of its own volition' appointed Democrats as such commissioners of election and poll clerks; and that the petitioners Belcher, Smith and Capehart are not eligible to the offices of councilmen of the City of Welch because they have not been assessed with, nor paid taxes upon personal or real property, or both, of the value of five hundred dollars for the year 1949.

No evidence was adduced. The petition and answer disclose the following: The special charter of the City of Welch, Chapter 3, Section 28, provides that the first election under such charter should be held on the first Tuesday in June, 1930, and every two years thereafter on the first Tuesday in June. In the years 1934, 1936, 1938 and 1940, conventions were held by the Democratic party, and nominations for municipal officers were made in accordance with Section 25 of the charter of the city. An executive committee was selected by the convention of 1940, and a chairman of such committee was elected. No conventions were held, no nominations were made in the years 1942, 1944, 1946, 1948, and 1950, and it would seem that the Democratic party in so far as participating in municipal elections had disintegrated, although in 1942 recommendations were made by the chairman for the appointment of commissioners of election and poll clerks to conduct the election in that year. The chairman elected in the year 1940 has not resided in Welch since 1942, he having entered the military service of the United States in that year and upon his return from that service, he established his domicile elsewhere. All the members of the Democratic executive committee selected by the convention of 1940 are registered voters of Welch, but only five members of said committee actually reside in that city. The chairman elected in 1940 was the last chairman, and has since that time attempted to resign, but could find no person or persons in authority to accept his resignation.

Defendants allege that they have selected the persons to represent the Democratic party as officers of the elections held in 1944, 1946, and 1948.

Prior to May, 1950, a person adhering to the Democratic party published an article in a Welch newspaper stating that he, along with other persons, was interested in placing on the ballot nominees for municipal offices as representing the Democratic party.

Petitioners assert that they were nominated by certificate, as authorized by Chapter 40, Acts of the Legislature, 1941, and Code, 3-4-30, and have complied with all the provisions of such statutes. It is alleged that the voters signing the certificate are approximately thirty per cent of the total vote cast at the last preceding municipal election; that the petitioners are legally qualified to hold the office for which they are nominated; that the subscribers to said certificate are legally and duly registered voters in the City of Welch; that such subscribers desire to vote for such candidates; and that they were aware that upon signing the certificate they could not vote at any primary election next ensuing in the City of Welch.

It is further disclosed that at an allegedly 'proper time' a person representing the Democratic party was present at a meeting of the council to present the names of the persons recommended as commissioners and poll clerks; and that such person was advised that the municipal council would not consider the appointment of election officers at that time. At a later meeting the council refused to consider the appointment of the persons so recommended. Although the allegation with reference to the recommendation of persons to be appointed election officers is denied, we think that fact is well pleaded in the petition, and a demurrer having been interposed to the petition by the defendant, we treat the allegation of the petition as true.

It appears from a certified copy of entries on the land books and personal property books of the City of Welch, Brown's Creek District and McDowell County that no property, real or personal, is assessed to petitioners Belcher and Capehart for the year 1949, and that property of the value of four hundred dollars was assessed against the petitioner, Fitzhugh Smith, located in Brown's Creek District.

On May 29, 1950, this Court entered an order awarding a writ of mandamus requiring defendants to place the names of the petitioners on the official ballot to be used at the regular municipal election, held in said city on June 6, 1950, and requiring defendants to appoint as election commissioners and poll clerks the persons designated as representing the Democratic party to represent said party at such election; but the Court did not pass on the eligibility of petitioners, Belcher, Capehart and Smith.

The first question presented is controlling: Are petitioners entitled to have their names placed upon the official ballot used in the municipal election above mentioned?

The right to vote and the conduct of elections are created by the Constitution and statutes of this State. 18 Am.Jur., Elections, Section 2.

'At the outset of any election case the primary consideration is that no voter should knowingly be disfranchised.' State ex rel. Hicks v. Langford, 122 W.Va. 398, 400, 9 S.E.2d 865, 866. Mindful of the foregoing, we advert to the provisions of the charter of the City of Welch. 'Between the first and fifteenth day[s] of May preceding a municipal election for the purpose of electing city officials, each political party shall at some convenient place, to be designated by the chairman of the city committee thereof, hold a convention for the purpose of nominating a mayor, councilman from each ward and two councilmen at large. Each of the political parties having the right to make nominations for city officials under the election laws of the City of Welch and state of West Virginia, shall give notice of the time and manner of such nominations by publication thereof in some daily newspapers printed in the City of Welch for ten days prior to the date of such convention.' Section 25, Chapter 3, Municipal Charters, Acts of the Legislature, 1929.

The pertinent part of Section 28 of Chapter 3, id., (charter of the City of Welch) reads as follows: 'In all elections by the people, the mode of voting shall be by ballot * * *. The election in said city shall be held and conducted, and the result thereof certified, returned and officially determined under the laws in force in this state relative to general elections, except that the persons conducting said election shall, * * * in all respects comply with the requirements of the laws of the state relating to elections in force at that time. * * * And the provisions of the election laws of the state of West Virginia in effect on the date of said election, concerning elections by the people shall govern such elections and be applicable thereto * * *.'

The pertinent provisions of the statute upon which petitioners rely read as follows: 'Groups of citizens having no party organization may nominate candidates for public office...