State ex rel. Smith v. Bosworth

• Decision Date: 06 December 1960
• Docket Number: Nos. 12074,12075,s. 12074
• Citation: 117 S.E.2d 610,145 W.Va. 753
• Court: West Virginia Supreme Court
• Parties: STATE ex rel. Hulett C. SMITH, Chairman, etc., et al. v. Stanley S. BOSWORTH, Judge, etc., et al. STATE ex rel. Doyle F. McLAUGHLIN et al. v. Stanley S. BOSWORTH, Judge, etc., et al.

Page 610

117 S.E.2d 610

145 W.Va. 753

STATE ex rel. Hulett C. SMITH, Chairman, etc., et al. v. Stanley S. BOSWORTH, Judge, etc., et al.

STATE ex rel. Doyle F. McLAUGHLIN et al. v. Stanley S. BOSWORTH, Judge, etc., et al.

Nos. 12074, 12075.

Supreme Court of Appeals of West Virginia.

Submitted Oct. 18, 1960.

Decided Dec. 6, 1960.

Syllabus by the Court

1. The commencement of a proceeding in mandamus dates from the issuance of process. The date of the process is not conclusive but is prima facie evidence of the date of its issuance and of the commencement of such proceeding.

2. The issuance and the service of process in the manner prescribed by statute, unless waived, are essential to the jurisdiction of the trial court to entertain a proceeding in mandamus.

3. To enable a court to hear and determine an action, suit or other proceeding it must have jurisdiction of the subject matter and jurisdiction of the parties; both are necessary and the absence of either is fatal to its jurisdiction.

4. A court which has jurisdiction of the subject matter in litigation exceeds its legitimate powers when it undertakes to hear and determine a proceeding without jurisdiction of the parties.

5. The writ of prohibition lies as a matter of right when the inferior court does not have jurisdiction of the subject matter in controversy or, having such jurisdiction, exceeds its legitimate powers.

Arden J. Curry, Charleston, for relators.

William M. Kidd, Sutton, for respondents.

HAYMOND, Judge.

These two original proceedings in prohibition were instituted in this Court on September 28, 1960, to prohibit the judge of the Circuit Court of Randolph County and the petitioners in two proceedings in mandamus instituted in the Circuit Court of Braxton County on September 20, 1960 and which by orders entered on that date were transferred to the Circuit Court of Randolph County, from the further prosecution of those proceedings in mandamus in the Circuit Court of Randolph County. By agreement of counsel and by leave of this Court these proceedings were argued and submitted together as a single proceeding and they will be considered as such and dealt with in one opinion.

In one of these proceedings the petitioners, Hulett C. Smith, Chairman of the West Virginia Democratic State Executive Committee, and Doyle F. McLaughlin, Chairman of the Braxton County Democratic Executive Committee, seek to prohibit The Honorable Stanley S. Bosworth, Judge of the Circuit Court of Randolph County, and Frank E. Foster, from taking any further action in the mandamus proceeding instituted in the Circuit Court of Braxton County and transferred to the Circuit Court of Randolph County, in which Frank E. Foster is petitioner and Hulett C. Smith and Doyle F. McLaughlin are defendants. In that proceeding in mandamus the petitioner seeks a writ to require the defendant Hulett C. Smith to submit to the circuit court all papers and records relating to his action in casting his vote for chairman of the Democratic Executive Committee of Braxton County and to cease and refrain from any further action in casting the deciding vote for chairman of such committee, and to require the defendant Doyle F. McLaughlin to admit Foster to the office of chairman of such committee, to deliver and surrender to Foster the property, books and papers of such committee, and to refrain from acting as chairman of such committee.

In the other of these proceedings the petitioners, Doyle F. McLaughlin, Lee Dennison, Hazel Hardman, Betty Hefner, Fred Singleton and Margaret Pearl Duffield, seek to prohibit the defendants, The Honorable Stanley S. Bosworth, Judge of the Circuit Court of Randolph County, and Troy J. Carr, James H. Hall, Virginia Hall and Rosalie Nottingham, from taking any further action in the mandamus proceeding instituted in the Circuit Court of Braxton County and also transferred to the Circuit Court of Randolph County, in which Troy J. Carr, James H. Hall, Virginia Hall and Rosalie Nottingham are petitioners and Doyle F. McLaughlin, Lee Dennison, Hazel Hardman, Betty Hefner, Fred Singleton and Margaret Pearl Duffield are defendants. In that proceeding in mandamus the petitioners seek a writ to require the defendant Doyle F. McLaughlin to refrain from hindering the Democratic Executive Committee of Braxton County in the performance of its duties and to require him to submit to the committee all of its papers and records in his possession, to require Hazel Hardman to refrain from usurping the duties of secretary of the committee and to produce the minutes of all its meetings at which she acted as secretary, to require Lee Dennison to divulge, under oath, whether he is a resident of the district which he was elected to represent and to refrain from acting as a member of the committee from Holly District, and to require all the members of the committee forthwith to hold a meeting and to record all proper motions in the minutes of the committee.

In each of the foregoing proceedings in mandamus by order entered September 20, 1960, a rule was issued upon the petition returnable before the Circuit Court of Randolph County on the 30th day of September, 1960, directed to and commanding the defendants, and each of them, to show cause why a writ of mandamus should not be awarded against them as prayed for in the petition and the judge of the Circuit Court of Braxton County, because of his disqualification, transferred the proceeding to the Circuit Court of Randolph County.

In each of these proceedings in prohibition a rule was issued returnable October 4, 1960, at which time, by agreement of counsel and leave of this Court, each proceeding was continued until October 18, 1960, to enable the respective parties to submit proof in the form of depositions. On October 18, 1960, each proceeding was submitted for decision upon the petition, the answer of the defendants other than the defendant Stanley S. Bosworth, who has made no appearance in these proceedings, the replication of the petitioners, the exhibits filed with the pleadings, the written stipulations of the attorneys for the respective parties, the depositions, and the written briefs and the oral arguments in their behalf.

At the primary election on May 10, 1960, Rosalie Nottingham and James H. Hall were elected members of the Braxton County Democratic Executive Committee from Birch District of that county, Troy J. Carr and Virginia Hall were elected members from Otter District of that county, Margaret Pearl Duffield and Lee Dennison were elected members from Holly District of that county, and Betty Hefner and Fred Singleton were elected members from Salt Lick District of that county, and each of them assumed his or her duties as such on June 1, 1960.

On June 6, 1960, upon written notice to each member, the retiring chairman, Doyle F. McLaughlin, called a meeting of the committee for the purpose of electing its new officers. At that meeting, which was attended by all the members, Doyle F. McLaughlin and Frank E. Foster were nominated for chairman. The vote resulted in a tie with four members voting for McLaughlin and four members voting for Foster. After written notice to all members, the committee met again on June 27, 1960, at which time all members were present, and at that meeting McLaughlin and Foster each received four votes on the ballot taken which again resulted in a tie.

On June 28, 1960, the secretary of the county executive committee informed Hulett C. Smith, Chairman of the Democratic State Executive Committee, of the tie vote for the office of chairman of the county executive committee and requested him to cast the deciding vote to determine the election of the chairman of the committee in accordance with Section 6, Article VI, of the Rules and Regulations for the government of the Democratic Party in West Virginia, which provides in effect that if in the election of a chairman or other officer of a county executive committee there is a tie vote which can not be settled by the members of the committee within twenty days after the date of its first meeting, the chairman of the state executive committee or someone appointed by him for the purpose shall cast the deciding vote, which may be done by registered mail sent to the outgoing chairman, and that such vote shall be final.

On August 25, 1960, Smith addressed an unregistered letter to Doyle F. McLaughlin, in which he stated that he cast his vote for Foster and McLaughlin as chairman and co-chairman and in which he also cast his vote for other officers of the committee. McLaughlin testified that he never received the letter of August 25, 1960, but it is conceded that Foster received a copy of that letter. On September 1, 1960, Smith sent a telegram to McLaughlin, in which he stated, in clarification of his letter of August 25, 1960, that he voted for Foster and McLaughlin as chairman and co-chairman with equal rights, and on the same date he addressed a registered letter to McLaughlin to the same effect. In the envelope for that letter was a copy of the letter of August 25, 1960, and McLaughlin received both those papers.

A third meeting of the committee, at which all members were present, was held on September 9, 1960, but at that meeting the committee did not elect a chairman. On September 13, 1960, Smith, as chairman of the West Virginia State Democratic Executive Committee, sent a registered letter to McLaughlin, in which he stated that, under the provisions of the rules of the state committee and because he had been advised that the ballot cast in his letter of September 1, appointing co-chairmen, was not proper and could not be considered as final, he cast his vote to break the tie in favor of McLaughlin as chairman of the county executive committee.

On September 17, 1960, pursuant to notice, the committee met again for the purpose of electing officers. The meeting was called to order by McLaughlin and all members were present and...