State ex rel. Zagula v. Grossi

Decision Date20 October 1964
Docket NumberNo. 12373,12373
PartiesSTATE ex rel. Edward A. ZAGULA, Chairman, Democratic Executive Committee, Hancock County, et al. v. Dan GROSSI, Clerk, Circuit Court, Hancock County, et al.
CourtWest Virginia Supreme Court

Syllabus by the Court

1. If a vacancy shall occur after the primary election in the party nomination of a candidate for a county office, the duly elected county executive committee may, at a reasonable time before the general election, fill such vacancy on the official ballot to be used at the general election.

2. A duly elected county executive committee may, within a reasonable time prior to the general election, rescind, revoke, cancel or annul a nomination previously made by it, and may designate and certify a different person as the party nominee to be placed on the official ballot.

3. A political committee is a continuing entity and a change of personnel thereof, whether made by election or otherwise, does not affect its right to rescind its former action.

4. To entitle one to writ of mandamus, the party seeking the writ must show a clear legal right thereto and a corresponding duty on the respondent to perform the act demanded.

Pinsky, Mahan & Barnes, Richard W. Barnes, William E. Watson, Wellsburg, for relators.

Callie Tsapis, Chester, Pietranton & Hagg, Frank A. Pietranton, Weirton, for respondent John S. 'Jack' Bryan, Jr.

CAPLAN, Judge.

This is an original proceeding in mandamus instituted in this Court by petitioners, Edward A. Zagula, Chairman of the Democratic Executive Committee of Hancock County, and Jack Evans, a citizen and resident of that county, against the respondents Dan Grossi, Clerk of the Circuit Court of Hancock County, Curtis C. Wallace and Paul E. Clunk, comprising the board of ballot commissioners for said county, and John S. 'Jack' Bryan, Jr. In this proceeding the petitioners seek to compel the respondents to refrain from taking any action which would result in placing the name of John S. 'Jack' Bryan, Jr. on the ballot for the general election to be held on November 3, 1964, as the Democratic nominee for the unexpired term of the office of county court commissioner of Hancock County, and to compel the said respondents to place the name of Jack Evans on the official ballot as the Democratic nominee for said office.

Upon the petition filed by the petitioners on September 24, 1964, this Court issued a rule returnable September 29, 1964, and on that day respondent Bryan filed his answer and demurrer to the petition, a motion to strike and a memorandum in support of said motion. This proceeding was then submitted for decision upon the foregoing pleadings, the petitioners' brief and oral arguments on behalf of the parties.

On October 1, 1964, this Court, by order, granted the writ prayed for in the petition and directed the respondents, the Board of Ballot Commissioners, to place the name of Jack Evans on the official ballot to be used at the general election to be held on November 3, 1964, as the Democratic nominee for the unexpired term for the office of Commissioner of the County Court of Hancock County from Clay District. This opinion is now rendered for the purpose of stating the reasons which caused this Court to award the writ.

At the primary election held on May 12, 1964, the voters of Hancock County elected a Democratic Executive Committee, the members of which are presently serving in that capacity. The term of office of these committee members began on the first day of June following the primary election, and will continue for four years thereafter. Shortly after the primary election the chairman of the committee then in office, in accordance with the provisions of Code, 1931, 3-1-9 as amended, called an organizational meeting of the new committee. This meeting was to be held on June 2, 1964.

On May 23, 1964, subsequent to the primary election and the call by the chairman, a member of the County Court of Hancock County, Robert E. Roach, died. Mr. Roach's term extended to December 31, 1968, thereby leaving an unexpired term to be filled at the election on November 3, 1964. This created a vacancy on the Democratic ticket for such office which, according to Code, 1931, 3-5-19, as amended, could be filled by the executive committee of the political party for the political division in which the vacancy occurred.

The chairman of the outgoing committee called a meeting of said committee to be held on May 29, 1964. On that date that committee proceeded to nominate John S. 'Jack' Bryan, Jr. to fill the ticket as the Democratic nominee for the office of county commissioner of Hancock County. This action was certified by the committee to the circuit clerk of said county on May 30, 1964.

The newly elected committee, pursuant to the call of the outgoing chairman, met on June 2, 1964. According to the facts alleged in this proceeding, the chairman attempted to adjourn said meeting but a quorum of the new committee continued the meeting and elected Edward A. Zagula chairman. A controversy arising from this election resulted in a determination by the board of appeals of the State Democratic Executive Committee that Edward A. Zagula was the duly elected chairman.

On July 20, 1964, the duly elected Democratic Executive Committee of Hancock County met and revoked, canceled and annulled the nomination of John S. 'Jack' Bryan, Jr. and designated Jack Evans as the nominee to be placed on the official ballot in the November 3 election. This nomination was certified to the Clerk of the Circuit Court of Hancock County by Edward A. Zagula, chairman.

It is alleged in the petition and remains undisputed that the ballot commissioners of Hancock County met on September 15, 1964, and decided to place Mr. Bryan's name on the ballot. This action appears from a copy of a transcript of the meeting of the ballot commissioners which is contained in the petition. This proceeding was instituted to compel the respondents to place the name of Jack Evans on the ballot rather than that of John S. 'Jack' Bryan, Jr.

In his motion to strike respondent Bryan alleges that Edward A. Zagula fails to show that he has any right to join as a relator in this proceeding. Even if this were so, his joining as a party relator would not be fatal to this action. Jack Evans, who is directly interested in the outcome of this proceeding, is a relator and without question is a proper party. Even if the inclusion of Zagula as a party constituted a misjoinder of parties, the provisions of Code, 1931, 56-4-34, clearly prevent the abatement of this cause for that reason. Where pertinent, that Code section provides: 'No action or suit shall abate or be defeated by the misjoinder or nonjoinder of parties, plaintiff or defendant.' This contention, therefore, is without merit.

Respondent Bryan further asserts that mandamus will not lie in the circumstances of this case. This position is not well taken. Code, 1931, 3-1-45, as amended, expressly provides that any officer or person upon whom any duty is devolved by the election laws of this state may be compelled by writ of mandamus to perform that duty. In the instant proceeding we are concerned with the duties of the ballot commissioners. Code, 1931, 3-1-21, as amended, provides: 'It shall be the duty of the board of ballot commissioners for each county to provide printed ballots for every election * * * and cause to be printed, on the appropriate ballot, the name of every candidate whose name has been certified to or filed with the clerk of the circuit court of the county in any manner provided for in this chapter. * * *' Here, the name of Jack Evans was certified to the clerk of the circuit court. By this mandamus proceeding the petitioners seek to compel the ballot commissioners to place the name of Evans on the ballot. It will be decided herein whether this relief will be granted.

This Court has long sanctioned the use of mandamus in cases where election officials have failed or refused to perform their statutory duties. Pack v. Karnes et al., 83 W.Va. 14, 97 S.E. 302; Franklin et al. v. County Court of McDowell County et al., 86 W.Va. 479, 103 S.E. 330;...

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