Beacom v. Bd. Of Canvassers Of Cabell County

• Decision Date: 24 September 1940
• Docket Number: No. 9120.,9120.
• Citation: 10 S.E.2d. 793
• Court: West Virginia Supreme Court
• Parties: BEACOM. v. BOARD OF CANVASSERS OF CABELL COUNTY et al.

10 S.E.2d. 793

BEACOM.

v.BOARD OF CANVASSERS OF CABELL COUNTY et al.

No. 9120.

Supreme Court of Appeals of West Virginia.

Sept. 24, 1940.

Syllabus by the Court.

1. After the returns of an election have been canvassed, the right of a candidate voted for at the election to demand a recount under Code, 3-5-33, must be exercised before the result of the election is officially declared.

2. The result of an election is officially declared when all the votes for the respective candidates have been tabulated and the board of canvassers, In regular session, directs the recordation of an order in the election record book, certifying the result in accordance with the tabulations.

Error to Circuit Court, Cabell County.

Mandamus proceeding-by J. Pat Beacom, relator, against the Board of Canvassers of Cabell County and others to require a recount of the votes at a primary election. To review an adverse judgment, the relator brings error.

Judgment affirmed.

W. H. Daniel and F. W. Riggs, both of Huntington, for plaintiff in error.

George I. Neal and Via, Hardwick & Quinlan, all of Huntington, for defendants in error.

HATCHER, Judge.

The petitioner, a candidate for nomination at the primary election held in Cabell County, May 14, 1940, was defeated upon the canvass of the returns, denied a recount by the board of canvassers, and refused a mandamus by the circuit court to require the recount.

His petition in the circuit court alleges demands for a recount made in his behalf by his secretary on May 24th, by his attorney on May 27th, and by himself on May 28th. His brief in this court refers only to the demand by his attorney. So we assume that he does not rely on the other two alleged demands.

The board admits the demand by the attorney on May 27th, but says that it was too late, the result of the election having been declared on May 24th. Peti tioner responds that such declaration was made when the board was not in session and was illegal. He would support his response by the following recorded order:

"At an adjourned meeting of the county court of Cabell County, sitting as a board of canvassers, held at the court house of said county on the 24th day of May, 1940, pursuant to adjournment of yesterday, present, T. H. Nash, president, and W. Arch Leap and J. M. Ross, Jr., Commissioners.

"There being no further business in connection with the primary election, held on May 14, 1940, the board adjourned until Monday morning, May 27th, 1940, at 9 A. M.

"(Signed) T. H. Nash, President

"J. M. Ross, Jr., Commissioner "W. A. Leap, Commissioner."

There is some confusion in the testimony. Despite this, the following facts are fairly established: 1. The board, all members present, (a) convened at 9:30 A. M., May 24th, at which time it was presented by its clerk with complete tabulations of the respective votes cast for every candidate; (b) approved the tabulations and signed them at 9:35 A. M.; (c) recessed until 2 P. M., the same day, to give time for the preparation of an order; and (d) reconvened at 2 P. M., and signed and delivered to its clerk for recordation an order--designated by him as a "special order"--dated May 24th, reciting that the board was in a regular meeting adjourned from "yesterday", declaring the result of the election according to the tabulations presented by the clerk, which were attached to and to be inserted in the order, and directing him to issue certificates of nomination to each candidate, not involved in a recount, shown by the tabulations to have the highest number of...