State ex rel. Zickefoose v. West

116 S.E.2d 398, 145 W. Va. 498, 1960 W. Va. LEXIS 48

• Court: West Virginia Supreme Court
• Decided: July 12, 1960
• Docket: No. 12039
• Status: Published

Opinions

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 Boy 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 Bepublican 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 Y. Tenney was elected sheriff of Upshnr 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 Harley Y. 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 Ms 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. In 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. 1050, 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. Sehenerlein v. City of Wheeling, 144 W. Va. 434, 108 S. E. 2d 788, tlie city clerk in Ms 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 respect, had acted properly and “performed his proper duty under the law.” While the Londeree case was distinguished in this manner, it was not specifically overruled or qualified in any respect but apparently it was annroved.

The case of Adams v. Londeree, 139 W. Va. 748, 83 S. E. 2d 127, which has been referred to above, was an original proceeding in mandamus to require the ballot commissioners of the City of South Charleston to strike from the ballot the name of Joseph W. Londeree, Democratic candidate for mayor, and to require the county registrar of voters to strike Londeree’s name from the voters’ registration records, on the ground that he lived on the United States Naval Reservation located within that city. The petition alleged that under such circumstances Londeree was not qualified to be registered as a voter, and that, therefore, he was not eligible to hold the office of mayor. In the fifth point of the syllabus, the Court held that Londeree was not disqualified to vote or to hold office merely because of his residence within the Naval Reservation. There was a dissenting opinion to that part of the majority opinion which is summarized in the third, fourth and fifth points of the syllabus, all of which relate to the single question of Londeree’s right to vote and to hold the office of mayor.

In the body of the opinion in the Londeree case, the Court distinguishes State ex rel. Harwood v. Tynes, supra, and State ex rel. McKnight v. Board, supra, as follows: “The question involved there, however, related to the jurisdiction of the board of ballot commissioners to determine the qualification of a candidate in a primary election, where the certificate of candidacy was regular and showed on its face that the candidate was qualified to hold the office for which he sought the nomination. No jurisdiction to determine such question was vested in the board of ballot commissioners by any statute. Therefore, it had no jurisdiction to make any independent investigation in order to determine such qualification. But lack of jurisdiction of such a board cannot be determinative of jurisdiction of a court having original jurisdiction in mandamus.” (Italics supplied.) The charter of the City of South Charleston provided that no person was eligible to the office of mayor “unless at the time of his election he is legally entitled to vote **'*.” (Italics supplied.) In relation to this requirement, the Court stated: “It is significant that the qualifications must exist ‘at the time of his election,’ not at some future time or upon the happening of some future event. The provision is clear. It should be applied as written. In State ex rel. Morrison v. Freeland, 139 W. Va. 327, 81 S. E. 2d 685, we held: ‘2. Where a statute requires that a person to be elected to office shall have a specific qualification at the time of his election, the requirement is not satisfied by the removal of the disqualification after election. ’ This being true, since the contest can not arise until after the election, to hold that mandamus can not he invoked in such cases as to a nominee for office would have the effect of denying any remedy prior to the election and, where the candidate elected could not qualify as to the office sought, would have the effect of rendering the election as to that office a nullity. Surely no such result could have been contemplated. It would not tend to induce orderly elections.” In the Freeland case, the Court stated: “One of the purposes of the Legislature in requiring the qualification to exist at the time of ‘election’, and not at some later time, no doubt, was to prevent abortive elections, as in this very case. ’ ’ In reference to the contention that eligibility of a candidate may be determined only in an election contest, the Court in the Londeree case stated: “To say that it is the only available and adequate remedy, however, obviously would deny courts having original jurisdiction of such proceedings as mandamus, quo warranto or prohibition, any jurisdiction as to questions concerning qualifications of candidates for nomination or election to office.”

Regardless of the nature or degree of confusion which may result from prior decisions of this Court in reference to its right, duty and jurisdiction to determine in a mandamus proceeding against ballot commissioners that a candidate is qualified or eligible or that he is not qualified or not eligible in relation to the office he seeks, the question in this instance appears to he clear, because it does not appear that the board of ballot commissioners has instituted or initiated “an inquiry for the purpose of determining the question of his [the candidate’s] legal qualifications” to hold the office, according to the language in the first point of the syllabus in the Schenerlein case, and in the syllabi of the McKnight and Harwood cases.

The board of ballot commissioners in the present case has taken no affirmative steps to disqualify Suder or to cause his name to be omitted from the ballot for the general election. This proceeding in mandamus has been instituted in this Court to determine Suder’s eligibility to be elected sheriff before the board of ballot commissioners has taken any action whatsoever toward the actual formulation, preparation and printing of the ballots. For this reason, if the Court in this proceeding should direct the ballot commissioners to omit the name of Suder from the ballot, it can not in this case mean that the Court has approved the action of the board of ballot commissioners in assuming and undertaking to exercise a power, function or jurisdiction which such board does not have and can not exercise.

The constitutional provision in question renders any person under certain circumstances ineligible to be “elected.” In reference to constitutional and statutory provisions of this nature the Court in the case of Slater v. Varney, 136 W. Va. 406, 419, 68 S. E. 2d 757, 765, stated: “The election or the appointment of a person to public office is merely the means provided by law by which such person is enabled to obtain and discharge the duties of the office and it is manifest that an election to an office of a person who, by reason of a permanent disqualification or ineligibility, cannot legally hold or occupy the office is not a valid election. This is necessarily so. It would be absurd to say that a person who receives the highest number of votes for an office voted for at an election, but who cannot legally hold or occupy such office is or can be legally elected to the office merely because he received the greatest number of votes. That a valid election to a public office impliedly contemplates and embraces the right to hold the office is indicated by the decision of this Court in Dryden v. Swinburne, 20 W. Va. 89.” (Italics supplied.) See also State ex rel. Morrison v. Freeland, 139 W. Va. 327, 334, 81 S. E. 2d 685, 689.

If Suder is ineligible to be elected and if he can not lawfully serve as sheriff, his election would be a “nullity” in the language of the Londeree case, an “abortive” election in the language of the Freeland ease, and “not a valid election” in tlie language of the Slater case. If he is not eligible to he elected, there should be a means of having this fact determined judicially in advance so that a properly qualified candidate may be selected to represent the same political party on the ballot for the general election, in order that the voters of Upshur County may be enabled to make their selection of a sheriff in the manner contemplated by law and by our system of government. A board of canvassers is not constituted as a tribunal having authority to make a judicial determination of the question here involved. But it is a non sequitur to assert that this Court lacks the power, jurisdiction and duty to determine such question in an original proceeding merely because such power, jurisdiction and duty are lacking in the board of ballot commissioners.

For the reason stated, the Court holds that mandamus is a proper remedy to determine whether Eugene Charles Suder is eligible or ineligible to be ‘ ‘ elected, ’ ’ and that this proceeding for that purpose is not premature.

The purpose of statutory and constitutional provisions similar to that now under consideration “would appear to be to avoid the temptation to use the office improperly in an effort to sustain tenure.” 59 A.L.R. 2d 719. In the case of Gorrell v. Bier, 15 W. Va. 311, 321, the Court stated: “The apparent object of the provision was to prevent the sheriff from holding the office continuously, by compelling him to go out of office at the end of a full term, the probable object of which was to prevent him from prostituting the office for the purposes of a re-election.” “Since a constitution is a fundamental charter of government a limitation upon eligibility for office expressed therein presents only the question of the meaning of the particular disqualification, as its validity is established by the mere fact of inclusion.” 59 A.L.R. 2d 719. The very Constitution which creates the offices of sheriff and deputy sheriff imposes this restriction on the right to hold such offices. “Where the constitution is clear in its terms and of plain interpretation to any ordinary and reasonable mind, there is no room for construction, and it would be mischievous and unlawful to assume it. If the intention is manifest from the language used and leads to no absurd conclusion, courts must give such provisions the effect clearly intended.” 4 M. J., Constitutional Law, Section 7, page 94. “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.” State ex rel. Trent v. Sims, 138 W. Va. 244, syl. 1, 77 S. E. 2d 122. See also Flesher v. Board of Review, 138 W. Va. 765, syl. 2, 77 S. E. 2d 890.

The intention of the constitutional provision now under consideration is clear and manifest from the language therein used. It becomes the duty of the Court, therefore, to apply such language according to the intention and purpose thereby made manifest.

It will be noted that the section of the Constitution in question provides initially that the same person shall not be elected sheriff for two consecutive “full” terms. It must be assumed that the word “full” was inserted designedly and for a purpose. This obvious purpose of the word was given effect in the case of Gorrell v. Bier, 15 W. Va. 311, as stated previously herein. It is perhaps equally significant that the framers of the Constitution omitted all language of a like or similar import in the provision relating to deputies.

It can not be regarded as insignificant that there was a failure to provide that a deputy sheriff shall be ineligible to be elected sheriff only'after having served as deputy sheriff for a “full” term. The provision relating to deputies contains no such qualifying or restrictive language, but rather, with emphasis supplied, it is as follows: “ * * * nor shall any person who acted as his deputy be elected successor to such sheriff # * *.” It ig no-f; provided that the ineligibility of a deputy sheriff shall result only after he shall have “acted” as such for four years, three years as in the present case, or for any other specified period of time. Rather his ineligibility results from his having merely “acted” as deputy sheriff for an unspecified period of time. It may be that Suder believed that the intervention of one full calendar year between the effective date of his resignation and the date of the commencement of the succeeding regular four-year term would serve to remove the disqualification. We are unable to perceive any basis for such a construction of the constitutional language.

Counsel for Suder in his brief contends that this proceeding to determine the question of eligibility is premature until Sheriff Tenney shall have completed serving his present full term which will expire December 31, 1960. The constitutional provision will admit of no such construction or application. Such would be contrary to the manifest spirit of the entire provision. On the question of the eligibility of a deputy to be elected sheriff for the succeeding term, the spirit of the constitutional language is emphasized by language pertaining to a situation presenting the converse of the present one: that is, a situation of a sheriff later undertaking to become a deputy. That language is: “* * * nor shall any sheriff act as deputy of his successor, * * *.” Such language does not say that a sheriff may act as deputy for his successor during the fourth year of the latter’s term of office, or that he may act as deputy if he resigns as sheriff prior to the expiration of his preceding four-year term. Here again we note a significant absence of such language as “full” term or any other language of like or similar import.

It is true that Sheriff Tenney’s office may become vacant by his death, removal or resignation during the remaining portion of his regular four-year term, and that, in such an event, the person elected to the regular term commencing January 1, 1961, will, in a sense, be “successor” to the person appointed to fill such vacancy. If such an interpretation were placed on the constitutional language, it would be possible for the sheriff to resign during the waning days of his term, and thereby subvert such language and thwart the attainment of its obvious intent. Moreover, the language makes the deputy ineligible to be “elected”, which contemplates that at the time he becomes a candidate, he should be free of an ineligibility which would render his valid election impossible. This eligibility to be elected could never be determined in advance of nomination or election, if its determination were dependent upon the uncertainty of the encumbent sheriff’s serving his full term to the last month, week and day.

For the reasons stated herein, the Court holds that Eugene Charles Suder is ineligible to be elected sheriff of Upshur County in the general election to be held on November 8, 1960, because of his having served as deputy to the encumbent sheriff during the first three years of his current term of office.

Code, 3-5-41, provides that any officer or person, upon whom any duty is devolved by Chapter 3 of the Code, which deals with elections, “may be compelled to perform the same by writ of mandamus.” Included in the same section is another provision specifically dealing with the jurisdiction of this Court, as follows: “A mandamus shall lie from the supreme court of appeals, or any one of the judges thereof in vacation, returnable before said court, to compel any officer herein to do and perform legally any duty herein required of him.” (Italics supplied.) In discussing this language, as amended a few years previously, the Court in the case of Marcum v. Ballot Commissioners, 42 W. Va. 263, 26 S. E. 281, stated that the effect of the amended statute was to give the Court authority by mandamus to control judicial, as well as ministerial, duties of election officials, and to broaden the common law scope of mandamus. The Court stated (42 W. Va. at page 271): “Why use the word ‘legally’? The power to compel performance is given in general words in the opening of the section, but later in the section it grows more specific, by using the word ‘legally’, thus using it sedately. We must give every word a meaning, espe-eially as tlie lawmaker grew more precise or emphatic by that word. It is an implication quite strong in connection with other features that the officer should be compelled to perform all duties, of every cast, ministerial or judicial, according to law. It seems to me the legislature intended to use, for the sake of speedy final determination in the court of last resort, the only writ available under the circumstances — mandamus as a writ of review to operate as a writ of certiorari; taking cognizance of all questions arising in the case, if the matter be one in nature at all reviewable on certiorari. The legislature was afraid to risk certiorari in such cases of emergency. If we give the statute any other construction, it would leave parties in many cases in grave matters without relief.” For other cases recognizing the broadened scope of mandamus to compel performance of ministerial or judicial duties imposed by Chapter 3, see the following: Duncan v. County Court, 138 W. Va. 106, 110, 75 S. E. 2d 97, 100; State v. Mills, 132 W. Va. 580, 588, 53 S. E. 2d 416, 424; Daugherty v. County Court, 127 W. Va. 35, 45, 31 S. E. 2d 321, 326. The remedy by mandamus is in addition to other remedies provided by law. Miller v. Board, 126 W. Va. 248, syl. 1, 27 S. E. 2d 599; State v. Heatherly, 96 W. Va. 685, syl. 1, 123 S. E. 795.

For a reference to cases from other jurisdictions in which election officials have been required by mandamus to omit from ballots the names of persons ineligible to be elected, see 55 C.J.S., Mandamus, Section 142, page 240; 38 C. J., Mandamus, Section 322, page 724.

For the reasons stated herein the peremptory writ of mandamus as prayed for in the petition is awarded.

Writ awarded.