Brawley v. County Court , 117 W. Va. 421 ( 1936 )

In my opinion, the County Court of Kanawha County had no right whatsoever to go behind the list of election officers certified to it over the signature of the Chairman of the Democratic County Executive Committee and to determine upon a mere verbal protest of individual members of that committee, and without hearing, that the act of the chairman in certifying the list was partly void and partly valid. Under Code, 3-4-15, if, prior to or during the session of the county court at which the election officers for the primary election are appointed, a writing signed by the members of the County Executive Committee or by its chairman or its secretary, on its behalf, and requesting the appointment of a commissioner and a poll clerk at each voting precinct of the county, is filed with the county court, it becomes the duty of the county court to appoint the persons named in the list, if such persons are qualified to act. This duty is, I think, purely ministerial and the county court has no right whatever to make judicial or quasi-judicial findings in connection with it, beyond those involved in and indispensable to the performance of its ministerial functions. Of course, the performance of any ministerial function requires the ascertainment by the acting officer or tribunal of the facts giving rise to the necessity of the action to be performed. The signing of bills of exception, the recordation of a deed, or any other ministerial act must be based upon the existence of the conditions requiring the act to be performed, and consequently the acting officer or tribunal must, of course, in the first instance, ascertain such conditions to exist. But, under the law of this state, as well as under preponderating general authority, the duty to ascertain the existence of such preliminary circumstances does not prevent the act itself from being a ministerial act. See Merrill on Mandamus, page 47, paragraph 44, et seq. In any case, our statute makes mandamus the proper remedy in election cases, whether the function involved be ministerial or not. Roberts v. Paul, 50 W. Va. 528,40 S.E. 470.

In this case, there was but one list filed before the county court. It was entirely regular upon its face and it was signed by the chairman on behalf of the committee. Its genuineness was not questioned. But the county court, acting ex parte upon the protest of certain members of the county committee, proceeded to inquire into the conduct of the committee's business, to interpret the resolution passed by the committee, to hold that the chairman of the committee, in certain instances, had departed from the terms of the resolution in making up the list of election officers and, in those instances, proceeded to name persons of its own selection. There is nothing in this record showing that the chairman of the committee was given an opportunity before the county court to explain his position, and there is nothing to show how the copy of the resolution that the county court acted upon came to be before it. The County Court of Kanawha County is not a judicial body. There is no statute giving it the right to review the action of political party committees, and our decisions are, without exception, to the effect that, independent of statute, even courts of record are possessed of no such authority.Kump v. McDonald, 64 W. Va. 323, 61 S.E. 909; RepublicanExecutive Committee v. County Court, 68 W. Va. 113,69 S.E. 522; Boggess v. Buxton, 67 W. Va. 679, 69 S.E. 367; Smith v.County Court, 78 W. Va. 168, 88 S.E. 662, 20 A.L.R. 1030.

The county court had before it one genuine list of election officers, properly certified to it as prescribed by statute, and filed with it within the time named in the statute. It was its plain ministerial duty to appoint those named in the list, and any disputes concerning the list, beyond those required to be decided in order that the court might perform its purely ministerial function, could not be tried in that tribunal.

Of course, this is not to say that there is no remedy. To the contrary, in the event that there should be a dispute concerning the proceeding in the committee authorizing and leading up to the compiling and filing of the list of election officers, such a dispute is reviewable first of all in the party's own higher tribunal. Under the cases herein cited, the remedy within the party would be exclusive and the courts would have no authority to intervene were it not for the fact that the statute confers that authority upon them. Code, 3-5-41, confers the remedy of mandamus to compel the performance of any duties required by that chapter to be performed, and Code,3-4-25, provides expressly that any act of a political party executive committee in the discharge of any of the duties imposed by that chapter, may be reviewed in the circuit court of the county, with the right of appeal to the Supreme Court of Appeals. Neither of these sections, nor any other, gives to the county court the right to review the acts of political party executive committees, and such action under our decisions, as already pointed out, is not reviewable by any court, in the absence of statute. Smith v. County Court, 78 W. Va. 168,88 S.E. 662, Pt. 4, Syllabus, 20 A.L.R. 1030. Such a statutory remedy where prescribed would necessarily be exclusive. Doran v. Whyte, 75 W. Va. 368, 83 S.E. 1025. There is no power in the county court to review the action of the county executive committee in passing the resolution copied into this record, and of the chairman in filing the list of election officers pursuant to that resolution. Such a power exercised by a county court in a primary election, cannot be distinguished from the same power exercised by the same tribunal in a general election. To hold that a county court in a general election may review the action of a county executive committee of a political party in causing names to be certified for appointment as election officials, gives that county court, a non-judicial body, the power to make decisions overriding the will of the political parties as expressed by their executive committees. A county court could arbitrarily appoint election officers for the opposing political party in the general election. To do so under the statute as applied in the majority opinion, all that a county court would have to do would be to find some fault with the list of election officers filed by the county executive committee of the opposing political party, discard it, and proceed to make selections of its own. This, certainly, is not the sort of power of decision that the law intends to rest in a non-judicial body. Certainly, it is not the kind of power that should be exercised arbitrarily and without a hearing.