State Ex Rel. S. P. Smith v. County Court.

• Decision Date: 31 March 1916
• Citation: 78 W.Va. 168
• Court: West Virginia Supreme Court
• Parties: State Ex Rel. S. P. Smith v. County Court.

78 W.Va. 168

State Ex Rel. S. P. Smith

v.County Court.

Supreme Court of Appeals of West Virginia.

Submitted March 28, 1916.

Decided March 31, 1916.

1. Mandamus Nature Grounds of Remedy.

Clear legal right of the relator in mandamus to have performance of the act he seeks to coerce performance of, and plain duty to perform it, on the part of the respondent, are essential to the award of the writ. (p. 171).

2. Evidence Judicial Notice Administration of Political Parties.

Courts judicially know political parties have rules and regulations for their government and tribunals for the prescription, interpretation and administration thereof, and that the rights of members and inferior or subordinate bodies of such organizations are determinable by such rules and regulations within the parties and by their tribunals. (p. 171).

3. Election Political Parties Government.

In the absence of fraud or violation of positive law, courts will recognize and vindicate rights accorded by the decisions of such tribunals, in those cases in which a statute makes it their duty to recognize and enforce them. (p. 171).

4. Same.

In the absence of a statute conferring the jurisdiction, courts will not undertake to settle and determine substantial controversies between rival political committees or factions of such a committee, the right in which is dependent upon party rules, usages and customs, nor grant relief to either of such committees or factions, as the representative of the party, in those cases in which the party is entitled to relief, but will refuse the relief asked until the controversy is settled and determined by some supervising board, committee or other tribunal of the party. (p. 172).

5. Same.

Neither of two factions of a political committee, dividing on substantial controversies governed by party usages, customs and rules, can be recognized by the courts as having prima facie right. (p. 172).

6. Same.

A remonstrance or protest by one faction of a political committee made to an officer or court acting in a ministerial capacity, against performance of an act demanded on behalf of the party, by another faction claiming to represent it, and based upon allegations of fact raising questions as to the right of such faction to represent the party, determinable by its supervising committees and governing bodies, justifies refusal of the officer or court to perform the act demanded (p. 172).

(Miller, Judge, absent.)

Original petition by the State, on the relation of S. P. Smith, for mandamus to the County Court of Kanawha County and others.

Peremptory writ refused.

McClintic, Mathews & Campbell and 8. B. Avis, for petitioner.

Frank Lively and W. E. R. Byrne, for respondents.

poffenbarger, judge:

The relator, Chairman of the Republican County Executive Committee of Kanawha County, seeks a peremptory writ of mandamus commanding the County Court of said county to appoint, as registrars of voters therein, certain persons whose names he had certified to that body for appointment to said positions, upon averment of his right to have them appointed under the provisions of sec. 98-a-l of ch. 3 of the Code, as amended by ch. 28 of the Acts of 1915. From the return of the alternative writ, it appears that his presentation of the list of persons designated for appointment was met by a protest against their appointment, on the ground of alleged irregularity and invalidity of their selection. One member of the court was willing to appoint them, another declined and the third was absent from the court and the state, on account of illness.

The grounds of the protest were: (1) that S. P. Smith, the relator, was not, and never had been, chairman of said com- mittee; and (2) that the persons whose names were presented by him had not been by it selected or designated for appointment. These denials of right were based upon several claims or contentions. As elected by the republican voters of the county in a primary election, held June 4, 1914, the committee consisted of ten members, one from each magisterial district. On some date in the year 1914, one of them, W. F. Shirkey, elected for Maiden District, resigned and the remaining members elected John H. Hawes to fill the vacancy. The relator was not one of the ten. On April 4, 1914, a resolution was adopted by the committee, electing him a member thereof from the county at large and making him its chairman with the right to vote in case of a tie. Since that date, he has acted as chairman, but the return denies authority in the committee to enlarge its membership. On March 4, 1916, he and five members whose titles to the positions they claim are admitted, met pursuant to a notice of a meeting of the committee, and, on the assumption of a vacancy in the position to which S. A. Fogarty had been chosen for Elk District, elected W. S. McAfee to that position and thereafter recognized him as a member. Claiming then to have six of the ten original members and seven of the eleven members composing the committee, as they contend, they adopted a resolution purporting to confer upon Chairman Smith power to name, on behalf of the committee, persons for appointment as registrars. Fogarty still claiming his membership and four others did not attend the meeting. They denied that Fogarty's place was vacant, that Smith was a member and that a quorum was present when McAfee was admitted and the resolution adopted. Fogarty's change of residence to a point in another state is the ground of denial of his membership. McAfee was elected to his place on the assumption that his change of residence had ipso facto vacated it. On the other hand, it is claimed he is residing out of the State only temporarily; that temporary absence was not cause for his removal; and that, if it were, it did not of itself create a vacancy, so as to reduce the membership of the committee to nine of which five might have been a quorum. On the issues of fact entering into the contro- versy considerable evidence was submitted, and numerous political precedents were invoked in support of the regularity and validity of the committee procedure relied upon by the relator. For both him and the respondent, it is claimed sec. 27 of ch. 26 of the Acts of 1915 vests jurisdiction in the courts to review the acts of all political committees.

Clear legal right in the relator to have the act, he seeks to coerce, performed and plain duty to perform it, on the part of the respondent, are indispensable bases of an application for the writ of mandamus. Doubt as to his right or the duty of the officer is fatal to him. Hutton v. Holt, 52 W. Va. 672; Payne v. Staunton, 55 W. Va. 684; Marcum v. Ballot Commissioners, 42 W. Va. 263, 273.

The right to the relief sought here depends upon the solution of the numerous questions raised by the protest. Seven members out of eleven, a quorum with one to spare, composed the meeting at which the resolution purporting to give the chairman authority to name the registrars, if the elected committee had power to enlarge their number by election of a member at large, and Fogarty's place had become vacant and had been properly filled. But, if the committee had no power to add to its membership, there could have been only ten members in all; and, if Fogarty had not vacated his place, less than a quorum constituted the meeting at which the resolution was passed. Whether Smith, though a member, having right to vote only in case of a tie, could be counted to make a quorum, and whether Fogarty's change of residence disqualified him, or, disqualifying him, ipso facto vacated his place, are questions. All of these are determinable by rules, regulations and precedents of the political party of which the committee is a tribunal, and they are made, interpreted and applied by the party committees and conventions. They are not recognized or treated as constituting any part of the public law administered by the courts, unless made so by statute. Courts judicially know political parties, like other voluntary associations, have rules and regulations for their government and tribunals for the prescription, interpretation and administration thereof, and that the rights of members and inferior or subordinate bodies of such organizations are determinable by the rules and regulations within the parties and through their tribunals. When political rights are so settled and determined, the courts recognize them and vindicate them. Buxton v. Boggess, 67 W. Va. 679; Republican Executive Committee v. County Court, 68 W. Va. 133; Kump v. McDonald, 64 W. Va. 323, 325.

But if an inferior committee is divided into opposing factions and the demand of one of them upon a public officer or tribunal for the performance of a statutory duty toward the party such faction professes to represent, meets with resistance by way of a protest or remonstrance based upon facts raising issues determinable by party usages and customs, the right between them must be regarded as uncertain and undetermined. The remonstrance brings to the surface an issue for the determination of which public law known to the courts makes no provision. Of course, party usages and customs are susceptible of proof, but courts cannot interpret and apply them without invasion of the province of the party tribunals. Political parties, like fraternal and religious societies and corporations of all kinds, administer,...