Alderson v. Court of Summers County

• Decision Date: 16 November 1948
• Docket Number: 10083.
• Citation: 50 S.E.2d 473,132 W.Va. 61
• Parties: ALDERSON v. COUNTY COURT OF SUMMERS COUNTY et al.
• Court: West Virginia Supreme Court

50 S.E.2d 473

132 W.Va. 61

ALDERSON v. COUNTY COURT OF SUMMERS COUNTY et al.

No. 10083.

Supreme Court of Appeals of West Virginia.

November 16, 1948

Syllabus by the Court.

1. Demand for a recount by a candidate in a primary election must be made before the result of the election has been officially declared by the board of canvassers.

2. An official declaration of the result of a primary election occurs when all votes for the candidates have been canvassed and tabulated and a written order to that effect is signed by the board of canvassers with directions that it be entered in the proper election record.

Percy H. Brown, of Hinton, for relator.

T L. Read, of Hinton, for respondents.

HAYMOND Judge.

In this original proceeding, J. C. Alderson, a citizen and a resident of Summers County, West Virginia, seeks a writ of mandamus to require the defendants, The County Court of Summers County and as such ex officio the board of canvassers, and J. A Wallace, S. O. Gum and Harold Boland, members of the county court, to grant him a recount of the ballots cast at the primary election held on May 11, 1948, between him and Carlos B. Garten as candidates for the Democratic nomination for the office of sheriff of that county.

On July 6, 1948, a rule, returnable July 29, 1948, was issued by this Court, and on that day this proceeding was heard upon the petition and its exhibits, the answer of the defendants, a supporting affidavit of the clerk of the county court, the demurrer of the petitioners to the answer, and the briefs and the oral arguments of counsel.

On July 30, 1948, this Court, by order entered on that day, denied the prayer of the petition and discharged the rule. This opinion has been prepared and is now announced for the purpose of stating the reasons for that decision.

The material facts involved, as established by proof, are not disputed.

Following the primary election, the board of canvassers met on May 14 1948, and, after canvassing and tabulating the returns, by order entered of record, adjourned until May 17, 1948. On that day it convened again and, according to the affidavit of the county clerk, which is not denied, the votes and the other election records were examined and approved and the results of the election were declared and a written order to that effect was signed by all members of the board. At that time the clerk was directed to enter the results in the election record book and to issue certificates of nomination to the various successful candidates. These certificates, including one to Garten, who had opposed the petitioner for the Democratic nomination for sheriff in the primary, were issued on May 19, 1948. The order which was signed by the members of the board on May 17, 1948, and which was copied in the election record book prior to May 22, 1948, is in this form:

'The Board of Canvassers having now completed the canvassing and tabulating the returns of the Primary Election thirty precincts of Summers County, held on May 11th, 1948, it is ordered Court adjourn as a Board of Canvassers.

'Reference to the General Order Book for further proceedings of this meeting. J. A. Wallace, H. Boland, S. O. Gum, BOARD OF CANVASSERS.'

On May 22, 1948, the petitioner caused to be served on each of the members of the county court a written notice in which he demanded a recount of all the Democratic ballots cast at each precinct in Summers County for candidates for the nomination for the office of sheriff of that county. This demand was refused by the county court on June 7, 1948, for the reason, as stated in the order entered on that day, that the petitioner had not demanded a recount until after the results of the primary election had been officially declared on May 17, 1948.

The petitioner alleges in his petition that he was informed by the county clerk that he had a period of ten days after the completion of the canvass in which to demand a recount of the votes and that a custom to that effect had existed for many years in Summers County. This allegation is denied by the answer of the defendants and by the affidavit of the clerk of the county court. The...