Maris, McLaughlin and Kalodner, Circuit Judges.
This is an appeal by the plaintiff, a member of the Republican Party residing in St. Croix, from an order of the District Court of the Virgin Islands entered October 4, 1966 dismissing his petition filed September 12, 1966 and amended petition filed September 24, 1966 seeking to have the nomination petition set aside which had been filed with the defendant, the Supervisor of Elections of the Virgin Islands, by the officers of the Republican Territorial Committee nominating the 15 intervening defendants as Republican candidates for the Virgin Islands Legislature. As we have just held in our opinion filed in Canton et al. v. Todman on October 24, 1966, V.I., 367 F.2d 1005, since no other nomination petitions for Republican candidates were filed these 15 individuals have become the Republican nominees to be voted on at the general election on November 8, 1966, without the need for holding a Republican primary election.
18 V.I.C. § 344 provides:
"(c) Unless the constitution, bylaws, or governing rules of a political party provide for another procedure, the territorial committee of such political party may nominate by a majority vote of those present for each candidate, a quorum being present, candidates for nomination and election up to the number of candidates to be nominated for public office and elected for party office at the primary election of such party. Such nomination by this or any other procedure shall be made by nomination petitions signed by the chairman and secretary of the territorial committee of the party on forms prescribed by the Supervisor of Elections. Nomination for such offices may also be made by nomination petitions as provided in subsection (b) of this section. A nomination petition filed by the chairman and secretary of the territorial committee shall set forth:
(1) any rules of the political party with respect to the nomination of candidates for such offices;
(2) that a quorum of the committee, caucus, or convention authorized by this subsection or by party rules to make such nomination duly convened;
(3) that the persons present were duly appointed or elected members of such committee, caucus or convention; and
(4) the name, residence and occupation of the candidates duly nominated at such meeting."
The nomination petition of the Territorial Committee of the Republican Party nominating the 15 intervening defendants was filed in the defendant's office on September 6, 1966. The petition was in the form prescribed by the defendant, it appeared on its face to comply with the requirements of 18 V.I.C. § 344(c), and after examination it was accepted by the defendant.*fn1
On September 7, 1966 the plaintiff filed with the defendant's office in St. Croix a letter of protest, inter alia "questioning the endorsement by the Republican Party of the candidates representing the so-called 'Donkey-Crats', thereby permitting alleged Democrats to seek election under the aegis of the Republican Party." No action having been taken by the defendant on his protest the plaintiff on September 12, 1966 filed a petition in the office of the Clerk of the District Court in the Division of St. Croix, presumably under 18 V.I.C. § 412, praying that the nomination petition filed by the Republican Party be set aside.
18 V.I.C. § 412 provides in pertinent part:
"All nomination petitions and nomination papers received and filed under this chapter, and accepted after the examination required by section 411 of this title, shall be deemed to be valid, unless, within five days after the last day for filing such nomination petition or papers, a petition is presented to the district court, specifically setting forth the objections thereto, and praying that such petition or paper be set aside. A copy of the petition shall, within such period, be served on the officer with whom the nomination petition or paper was filed. Upon the presentation of such a petition the court shall make an order fixing a time for hearing which shall not be later than 10 days after the last day for filing such nomination petition or paper, and specifying the time and manner of notice that shall be given to the candidate named in the nomination petition or paper sought to be set aside. On the day fixed for the hearing, the court shall proceed without delay to hear such objections, and shall give the hearing precedence over any other business before it, and shall finally determine the matter not later than 15 days after the last day for filing such nomination petitions or papers. If the court finds that the nomination petition or paper is defective under the provisions of section 411 of this title, or that it does not contain a sufficient number of genuine signatures of electors entitled to sign it under the provisions of this chapter, or was not filed by persons entitled to file it, it shall be set aside. * * *"
The petition which was filed by the plaintiff in the office of the clerk of the district court in St. Croix on September 12, 1966 was not presented by the plaintiff on that day (which was by any reckoning the last day for presenting it, under 18 V.I.C. § 412), to the judge of the district court, who resides in St. Thomas, for the purpose of having an order made by the judge fixing a time for a hearing which under the statute was required to be held not later than September 16th (10 days after September 6th, the last day for filing nomination petitions). Obviously, the deputy clerk in St. Croix could not make such an order. Instead, the plaintiff did nothing to prosecute his petition until September 24th, three days after the last day fixed by the statute for finally determining the matter raised by the petition. Then on September 24th he filed an amended petition and presented a motion to the judge of the district court to fix a time for a hearing thereon. A hearing was fixed for October 4th and was held on ...