State ex rel. Duke v. O'Brien

BROWNING, PRESIDENT: The petitioner, Gay H. Duke, instituted in this Court an original proceeding in mandamus in bis own behalf and in behalf of all other registered voters of Jackson County against Perry Emmitt (Emmet) O’Brien, James Robinson and Ben Cadle, members of, and constituting, the Board of Ballot Commissioners of Jackson County, "West Virginia, and Asa Harpold, the republican “nominee” for the office of Sheriff of Jackson County. The petition alleges that Asa Harpold “is ineligible and disqualified to be elected Sheriff of Jackson County, West Virginia, for the full four-year term in the November 8, 1960, election, by reason of Article IX, Section 3 of the Constitution of West Virginia.” The petitioner prays that a writ be awarded “enjoining, restraining, and inhibiting-the said” members of the Board of Ballot Commissioners “from placing Asa Harpold’s name upon the official ballot, in the November, 1960, election, as the Republican nominee for the office of Sheriff of Jackson County, West Virginia * * that “Asa Harpold, be enjoined, restrained, and inhibited from requesting, demanding, or otherwise endeavoring to have the Board of Ballot Commissioners of Jackson County, West Virginia, [602] place liis name on the ballot, * * V’; “that the said Asa Harpold be further enjoined, restrained, and inhibited from posing, advertising, or otherwise presenting himself to the voters of Jackson County, West Virginia, as the Republican candidate for the office of Sheriff of Jackson County, * * and that “he be granted such other, further, and general relief, both temporary and permanent, as the Court may deem just and proper in the premises, * * V’ On August 19, 1960, in the vacation of this Court, three Judges thereof awarded a rule returnable September 7, 1960, at which time a joint answer was filed by the members of the Board of Ballot Commissioners admitting that they are members of such Board and alleging as such that “they are circumscribed and restricted in their duties; that they are not a judicial or ‘fact finding body’ * * On that day, the first day of a regular term of this Court, the case was submitted for decision, and on September 19, 1960, an order was entered awarding a writ of mandamus commanding the members of the Board of Ballot Commissioners, in their official capacity, “to omit the name of Asa Harpold as the Republican nominee for Sheriff of Jackson County from the official ballot for the general election to be held in said county on the 8th day of November, 1960. * * The purpose of this opinion is to state the reasons for the action of the Court in awarding the writ. This proceeding is controlled by the decision of this Court in State of West Virginia ex rel. Moneth W. Zickefoose, et al. v. Garland West, et al., 145 W. Va. 498, 116 S. E. 2d. 398, decided by this Court on July 12, 1960. In that case one Suder served from January 1, 1957, until he resigned on December 31, 1959, as deputy of the Sheriff of Upshur County who was, in November, 1956, elected for the full four-year term of Sheriff of that county beginning on January 1, 1957, and ending December 31, 1960. In this proceeding the facts are identical except Harpold resigned on December 26, 1959. Both Suder and Harpold filed their eandi603 dacies for the full four-year term of Sheriff of their respective counties, beginning January 1, 1961, and ending December 31,1964, and both received the highest number of votes cast by the voters of their parties in the May, 1960, primary election. The 5th Syllabus Point of the Zickefoose case reads: “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 nest succeeding full term.” The provisions of Article IX, Section 3, of the Constitution that are pertinent read: ‘ ‘ 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 office.” It would serve no good purpose to reiterate the position of the majority of the Court on this question, or to again review the authorities cited in the majority and concurring opinions in the Zickefoose case. Suffice to say that Harpold is ineligible to be elected to the office of Sheriff of Jackson County and mandamus will lie directing the Board of Ballot Commissioners of Jackson County to omit his name from the official ballot. It is the understanding of the writer that all of the Judges of this Court are of the opinion that Harpold is inhibited by this constitutional provision from serving as Sheriff of Jackson County for the full term which begins January 1,1961. The separate dissenting opinions by Judges Haymond and Berry in the Zickefoose case were directed solely to the question of whether mandamus was a proper remedy by which the Ballot Commissioners could be directed to omit the name of Suder from the official ballot for the general election to be held in November. Perhaps it should be also noted that in the Zickefoose proceeding the petitioner prays that the Ballot Commissioners be commanded to “omit” Suder’s [604] name from the official ballot, whereas in this proceeding the prayer uses such words as “enjoining, restraining, and inhibiting” respondents from placing Harpold’s name on the ballot. This Court, of course, is without original jurisdiction to grant an injunction in any kind of a case, suit or proceeding. Article VIII, Section 3, Constitution; Code, 51-1-3. However, this Court is of the view that the prayer of this petition is sufficient to grant the relief requested since the petitioner is clearly entitled thereto by the pleadings filed unless the phrasing of his prayer prevents this Court from granting such relief. This is a petition in mandamus, it being so designated on its face, there was no demurrer to it, and it is the only proceeding by which the petitioner would be entitled to the relief which he seeks in this Court. We construe the language used as a prayer to omit the name of Harpold from the ballot. Writ awarded.