State ex rel. Summerfield v. Maxwell

• Decision Date: 17 April 1964
• Docket Number: No. 12328,12328
• Citation: 148 W.Va. 535,135 S.E.2d 741
• Parties: STATE ex rel. J. Zane SUMMERFIELD v. C. H. MAXWELL, Clerk, etc., et al.
• Court: West Virginia Supreme Court

Page 741

135 S.E.2d 741

148 W.Va. 535

STATE ex rel. J. Zane SUMMERFIELD v. C. H. MAXWELL, Clerk, etc., et al.

No. 12328.

Supreme Court of Appeals of West Virginia.

Submitted April 14, 1964.

Decided April 17, 1964.

Syllabus by the Court

1. The eligibility of a candidate for an elective office may be determined in a proceeding in mandamus and, upon a determination therein that a candidate is ineligible to be elected to or to hold the office for which he seeks nomination or election, a writ of mandamus will issue directing the board of ballot commissioners to strike or omit such candidate's name from the primary or general election ballot.

2. Insofar, but only insofar, as the holding and statements in State ex rel. Schenerlein v. City of Wheeling, 144 W.Va. 434 ; State ex rel. Harwood v. Tynes, 137 W.Va. 52 ; State ex rel. McKnight v. Clark, 86 W.Va. 496 ; Martin v. White, 74 W.Va. 628 ; and, any statements similar thereto in the cases cited therein, are inconsistent or in conflict with the holding in point 1 of the syllabus in this case, such holding is overruled and such statements are disapproved.

3. A person who is not an attorney, duly licensed or authorized to practice law in the courts of this State, is ineligible to hold the office of prosecuting attorney.

Mahan, Higgins, Thrift & Graney, R. J. Thrift, Jr., Fayetteville, for relator.

Warren A. Thornhill, III, Beckley, for respondents.

BROWNING, Judge.

In this original proceeding in mandamus, petitioner, J. Zane Summerfield, a candidate for the nomination for the office of prosecuting attorney of Fayette County on the democratic ticket, seeks to compel the respondents, the board of ballot commissioners for Fayette County, to omit the name of the respondent, Bob Prowse, also a candidate for such nomination, from the official ballot of the democratic party to be voted on in that county at the primary election to be held on May 12, 1964.

The petition identifies the parties and alleges in substance that: any eligible, duly qualified person securing the nomination to the office of prosecuting attorney of the democratic party would be entitled to be voted for and elected to that office at the general election to be held on November 3, 1964, and thereafter to assume and undertake the duties thereof; that the respondent, Prowse, is not now and will not be on January 1, 1965, an attorney at law, duly licensed and admitted to practice in the courts of this state, does not possess the qualifications therefor and is not a member of the West Virginia State Bar. The petition then alleges that the prosecuting attorney must, by law, perform various acts constituting the practice of law, which can only be performed by a person duly licensed to practice law in this state, and the respondent, Prowse, not being licensed or qualified to perform such duties, is disqualified to be elected to, or to hold, the office of prosecuting attorney of Fayette County, and concludes with the prayer above mentioned.

Respondents, the board of ballot commissioners, filed their answer, in response to the rule issued by this Court, averring that: they have legally and lawfully fulfilled all duties imposed upon them by law; they have no authority to question the eligibility of the respondent, Prowse; Prowse has complied with all prerequisites necessary to secure the placing of his name on the primary election ballot; and, unless restrained by this Court, they will cause his name to appear on such ballot. By supplemental answer, the board alleges that a contract for the printing of ballots has been let and a number of ballots, sufficient for absentee voters, have been printed which bear the name of the respondent Prowse.

Respondent, Prowse, appearing in response to the rule, demurred to the petition, primarily on the ground that mandamus will not lie in the premises, and answered, admitting the substantial allegations of the petition, but averring that no provision of the constitution, or any statute requiring the performance of acts constituting the practice of law, requires that the prosecuting attorney personally perform such acts. The answer also avers that provision is made by statute for the appointment of assistant prosecuting attorneys in Fayette County, which statute specifically provides that such assistants must be practicing attorneys, and who, therefore, could perform any legal functions which he was ineligible to perform. Petitioner demurred to the answers of both respondents on the grounds that such answers are insufficient in law to constitute a defense to this proceeding.

Thus, there is presented the principal issue in this proceeding, which is whether or not a person who is not a member of the West Virginia State Bar, and entitled to practice the profession of law in this state, may be elected to and serve in the capacity of prosecuting attorney. This question is one of first impression in this state, although there is considerable authority elsewhere to which reference will hereinafter be made.

Article IX, Section 1 of the constitution of this state provides that 'The voters of each county shall elect a Surveyor of Lands, a Prosecuting Attorney, a Sheriff, and one and not more than two Assessors, who shall hold their respective offices for the term of four years.' Code, 3-1-17, as amdned, directs that 'There shall be elected, * * * at the general election to be held in the year nineteen hundred and sixty-four, and in every fourth year thereafter, a sheriff, prosecuting attorney, * * *.' Code, 7-4-1, as amended, recites the extensive and varied duties of a prosecuting attorney and further reference to that section will be hereinafter made. There is no provision in the constitution of this state or any statute defining qualifications or requirements necessary for an individual to be eligible to the office of prosecuting attorney.

However, the threshold question presented in this proceeding in mandamus is whether in such proceeding a writ may issue giving the petitioner the relief which he seeks. It will be noted that the respondent, Prowse, has not presented himself with a certificate of election to the office of prosecuting attorney with the request that he be qualified and sworn so as to execute the duties of that office. He has not been elected to the office of prosecuting attorney of that county and he has not even become the nominee of his political party for such office. However, he has complied with the formal requirements in the office of the clerk of the circuit court of Fayette County necessry to make him a 'candidate' for the democratic nomination for that office, has paid the necessary filing fee and otherwise formally qualified to have his name placed upon the primary election ballot for the election to be held on May 12, 1964. Section 3, Article VIII of the constitution of this state, relating to the scope of jurisdiction of this Court, provides in part that 'It shall have original jurisdiction in cases of habeas corpus, mandamus, and prohibition.' Secton 12, Article VIII of the constitution provides in part that the circuit court shall have jurisdiction 'of all cases of habeas corpus, mandamus, quo warranto, an prohibition;'. Thus, it would appear that the circuit court of Fayette County and this Court have concurrent jurisdiction of a case such as this one.

The threshold question, heretofore, has been the cause of much deliberation on the part of this Court, but it would appear that that issue has now been resolved and that under the salutary rule of state decisis it is no longer a problem. The fourth syllabus point of State ex rel. Zickefoose, et al. v. West, et al., 145 W.Va. 498, 116 S.E.2d 398, is in this language: 'Where, in a primary election, a person has been nominated as a candidate for sheriff, his eligibility or ineligibility to be elected, as provided in Article IX, Section 3 of the Constitution of West Virginia, may be determined in a proceeding in mandamus; and such proceeding is not premature even though it is prosecuted prior to the date of the general election.' Two of the judges of this Court wrote dissenting opinions in that case, they being of the opinion that mandamus was not the proper remedy by which the name of a candidate for election for the office of sheriff could be removed from the ballot of eligible candidates to be voted for in the general election of that year, 1960. Reference is made to the able majority opinion, the two able dissenting opinions and to the concurring opinion in the Zickefoose case for the positions of the different judges who were members of this Court at that time (July 12, 1960). In the case of State ex rel. Duke v. O'Brien, et al., 145 W.Va. 600, 117 S.E.2d 353, decided September 20, 1960, approximately two months later, the holding in the Zickefoose case was adhered to and followed. See also State ex rel. Cline v. Hatfield, 145 W.Va. 611, 116 S.E.2d 703.

The word 'jurisdiction' is not easy to define as it is used in constitutions, statutes and appellate court opinions. Literally, it is composed of two Latin words meaning 'I speak by the law'. The 'jurisdiction' of this Court comes from three sources--the constitution of this state; the legislature; and the common law, from which emanates some of its so-called inherent power. The constitution of this state specifically provides by Article VIII, Section 21, that 'such parts of the common law, and of the laws of this State as are in force when this article goes into operation, and are not repugnant thereto, shall be and continue the law of the State until altered or repealed by the Legislature. * * *'

A review of the Zickefoose and Duke cases and the prior cases cited therein relating to the 'jurisdiction' of this Court in mandamus 'to compel any officer' of elections to 'perform legally any duty' imposed upon him by the kprovisions of Chapter 3 of the code of this state entitled 'Elections' shows that the judges constituting the...