State ex rel. Zickefoose v. West

• Decision Date: 18 October 1960
• Docket Number: No. 12039,12039
• Citation: 145 W.Va. 498,116 S.E.2d 398
• Court: West Virginia Supreme Court
• Parties: STATE of West Virginia ex rel. Moneth W. ZICKEFOOSE et al. v. Garland WEST et al.

Page 398

116 S.E.2d 398

145 W.Va. 498

STATE of West Virginia ex rel. Moneth W. ZICKEFOOSE et al. v. Garland WEST et al.

No. 12039.

Supreme Court of Appeals of West Virginia.

Submitted June 21, 1960.

Decided July 12, 1960.

Dissenting Opinions July 19 and Aug. 23, 1960.

Concurring Opinion Oct. 18, 1960.

Syllabus by the Court

1. 'Any officer or person upon whom any duty is devolved by Chapter Three of the Code, as amended, may be compelled to perform the same by writ of mandamus.' Point 1 Syllabus, Adams v. Londeree, 139 W.Va. 748, .

2. 'A citizen, tax payer and voter has such interest as entitles him to maintain mandamus to compel a board of ballot commissioners to discharge their duties lawfully in respect to the preparation of ballots for a general election.' Point 1 Syllabus, Pack v. Karnes, 83 W.Va. 14 .

3. 'If a constitutional provision is clear in its terms, and the intention of the electorate is clearly embraced in the language of the provision itself, this Court must apply and not interpret the provision.' Point 1 Syllabus, State ex rel. Trent v. Sims, 138 W.Va. 244 .

4. 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.

5. A person who has acted as deputy for a sheriff duly elected to a full term is ineligible, under the provisions of Article IX, Section 3 of the Constitution of West Virginia, to be elected sheriff for the next succeeding full term.

Hyer, Gibson & Talbott, Elkins, for relators.

Kelcel M. Ross, Buckhannon, Wysong & Wysong, Webster Springs, for respondents.

CALHOUN, Judge.

This original proceeding in mandamus was instituted in this Court in the name of the State of West Virginia at the relation of Moneth W. Zickefoose and Roy L. Warner, voters and residents of Upshur County, for the benefit of themselves and all other residents and voters of that county, against Garland West, Lester Hildreth and Gloris L. Darnall, constituting the board of ballot commissioners of Upshur County, and Eugene Charles Suder.

The petition alleges that Eugene Charles Suder is the Republican nominee for sheriff of Upshur County; that by reason of the provisions of Article IX, Section 3 of the Constitution of West Virginia, he is not eligible to be elected to the office for which he has been nominated; and the petition therefore prays that the board of ballot commissioners be commanded to omit his name from the official ballot for the general election to be held on November 8, 1960.

Harley V. Tenney was elected sheriff of Upshur County at the general election held in November, 1956, and on January 1, 1957, he assumed the duties of the office for the four-year term to which he was elected, which will expire on December 31, 1960, and he is now continuing to serve as such sheriff. Eugene Charles Suder was duly appointed as one of the deputies of Sheriff Charles V. Tenney, qualified as such, assumed the duties of the office at the commencement of the term on January 1, 1957, and continued to serve as such deputy sheriff until his resignation became effective December 31, 1959.

Thereafter Eugene Charles Suder became a Republican candidate for nomination as sheriff of Upshur County for the regular four-year term which will commence on January 1, 1961. In the primary election held on May 10, 1960, he received the highest number of votes among the Republican candidates for sheriff, and, accordingly, he was duly declared to have been nominated.

The members of the board of ballot commissioners have filed an answer to the petition wherein they admit that Garland West and Lester Hildreth are the duly constituted ballot commissioners; and that Gloris L. Darnall is the duly elected and qualified clerk of the circuit court, and, as such, chairman of the board of ballot commissioners of Upshur County. In the answer they 'neither admit nor deny' other allegations of the petition.

Eugene Charles Suder has filed an answer in which he admits many of the pertinent allegations of the petition, but denies none thereof. The answer states several propositions as follows: (1) Suder is eligible to be elected because of his resignation in advance of the expiration of the present sheriff's term; (2) any challenge of Suder's eligibility is premature in advance of his election; (3) any challenge of his eligibility is premature until Sheriff Harley V. Tenney shall have completed his present term; and (4) the relators should be denied the relief they seek herein because of their failure to appear before the board of canvassers to register protest prior to the declaration of the result of the canvass. The pertinent facts not being in dispute, the case was submitted for decision upon the agreed state of facts appearing from the petition and answers.

Article IX, Section 3 of the Constitution of West Virginia, so far as material to this case, is as follows: 'The same person shall not be elected sheriff for two consecutive full terms; nor shall any person who acted as his deputy be elected successor to such sheriff, nor shall any sheriff act as deputy of his successor; nor shall he, during his term of service, or within one year thereafter, be eligible to any other office.' (Italics supplied.) In the case of Gorrell v. Bier, 15 W.Va. 311, the Court held that a sheriff who had completed the serving of one full term was not disqualified to be elected two years later to a two-year unexpired term as sheriff, in view of the fact that the language of the Constitution prohibits only 'two consecutive full terms.' (Italics supplied.) We are unable to find any other decision of this Court construing the constitutional language which is quoted above. The basic question presented herein is, therefore, apparently one of first impression.

The case of State ex rel. Pack v. Karnes, 83 W.Va. 14, 97 S.E. 302, involved a mandamus proceeding against a county board of ballot commissioners to require such board to reconvene and to strike from the general election ballot the names of two persons appearing thereon as Democratic candidates on the ground that they were not legally nominated as such. I the first point of the syllabus the Court held: 'A citizen, taxpayer and voter has such interest as entitles him to maintain mandamus to compel a board of ballot commissioners to discharge their duties lawfully in respect to the preparation of ballots for a general election.' In the body of the opinion the Court, after holding that the two persons had not been nominated lawfully, stated:

'* * * If one regularly and legally nominated is omitted from the ballot, on showing compliance with the law on his part he may by mandamus require the ballot commissioners to perform their duty to put his name on the official ballot, though this would call for a reconvening of the board to discharge their duty lawfully. Frantz v. County Court, 69 W.Va. 734, 73 S.E. 328; State ex rel. Heironimus v. Town of Davis, 76 W.Va. 587, 85 S.E. 779; State ex rel. Lamb v. Board of Ballot Commissioners, 97 S.E. 284, decided at this term.

'But can the board of ballot commissioners be compelled to undo what according to the admitted facts they have undertaken to do unlawfully? We think there can be no doubt of the power of the court to control their action. They have no judicial discretion in the premises. At the time the writs were awarded they still had time to make up and print the ballots in accordance with law. Until they have performed their duties lawfully, in contemplation of law they have not performed them at all. Mandamus lies to compel election and other ministerial officers to perform legally their official duties. Boggess v. Buxton, 67 W.Va. 679, 69 S.E. 367, 21 Ann.Cas. 289; Rider v. County Court, 74 W.Va. 712, 82 S.E. 1083; State ex rel. Heironimus v. Town of Davis, supra; Frantz v. County Court, supra.'

Our research fails to disclose that this case has been overruled in any respect.

In the case of State ex rel. McKnight v. Board, 86 W.Va. 496, 103 S.E. 399, the Court held in the single point of the syllabus that when a candidate for a nomination in a primary election files a certificate with the clerk of the circuit court from which it appears that he is eligible to hold the office for which he is a candidate, the board of ballot commissioners has 'no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office.' The same result was reached in State ex rel. Harwood v. Tynes, et al., etc., 137 W.Va. 52, 70 S.E.2d 24.

In State ex rel. Schenerlein v. City of Wheeling, W.Va., 108 S.E.2d 788, 789, the city clerk in his capacity as ballot commissioner, undertook an independent inquiry to determine, and consequently did determine, that the relator lacked residence qualifications to become a candidate for city councilman. The Court, following the language of the two cases cited immediately above, held that 'the city clerk acting as a ballot commissioner has no authority to institute an inquiry for the purpose of determining the question of his legal qualifications to hold such office.' The Court further held that mandamus would 'not lie to compel the performance of an illegal or unlawful act'. A dissenting opinion was filed in that case, in which two members of the Court who joined therein undertook to express their difficulty in reconciling the majority opinion with the decision of the Court in the previous case of Adams v. Londeree, 139 W.Va. 748, 83 S.E.2d 127. The majority opinion, however, did distinguish the Londeree case on the ground that in that case the city clerk as ballot commissioner 'had already placed the name of Londeree on the ballot as a candidate for mayor' and, in this...