Placing the judiciary in a position where it is the final judge of whether an election not held at the time fixed by statute is valid because it is a good faith departure from the statutory requirements, or is void for the reason that it is done for a fraudulent purpose, I believe is a dangerous departure from a simple and definitely established rule. I quote an accurate statement from the Lorentz opinion:
"It is held with practical unanimity that where a particular time is fixed by law for the holding of an election the body charged with executing such law may not fix a different date therefor. If such election is held on another day than that *Page 404 fixed by law, it will be void. 9 Rawle C. L. Title 'Elections', sec. 19; 15 Cyc. 341. To allow those charged with the execution of the election laws to change the time for holding elections to suit the convenience or interest of themselves or their friends results in fraud and injustice to such an extent that the title of every officer would be brought into disrepute. If the officers charged with the duty of holding an election at a particular time, fail to discharge that duty, the only remedy is to appeal to the courts to compel its performance by the writ of mandamus. State ex rel. Heironimus v. The Town of Davis, 76 W. Va. 587, 85 S.E. 779."
An examination of the authorities cited to sustain an according text statement in 18 Am. Jur., "Elections" par. 112, will demonstrate that statutes fixing dates upon which elections are held are regarded as mandatory and that the rule is free from complications. The same rule, of course, governs the holding of conventions.
The Lorentz decision suggests mandamus as an appropriate remedy, but so far as the failure to conform with the statutory requirements for the purpose of making nominations is concerned the appropriate executive committees of the major parties are vested with the necessary authority to assure their party members representation on the ballot. (Code, 3-4-23.) With the courts open to require an executive committee to exercise and perform a required function, I cannot become alarmed at the possibility of disfranchising voters of the parties that select the executive committees vested with power to act. The city executive committee could have adopted the selections of irregular mass conventions and could have properly certified their names to be placed upon the ballot, had it so desired.
I would decline to issue the writ. *Page 405