Dickinson v. Thorn

• Decision Date: 14 December 1926
• Docket Number: (No. 5895)
• Citation: 102 W.Va. 673
• Parties: D. Dickinson v. Willie Thorn, Pres. et als., etc.
• Court: West Virginia Supreme Court

102 W.Va. 673

D. Dickinson

v.Willie Thorn, Pres. et als., etc.

(No. 5895)

Supreme Court of Appeals of West Virginia.

Submitted December 10, 1926.

Decided December 14, 1926.

1, Elections Where Question of Ratification or Rejection of

Act of Legislature Has Been Submitted to Voters, and Duty Cast Upon County Court as Board of Canvassers, by Said Act, to Canvass and Record Resudt, Such Board Has no Authority to Pass Upon Questions Involving Validity of Act.

Where the question of ratification or rejection of an act of the legislature has been submitted to the voters, and a duty cast upon the county court as a board of canvassers, by said act, to canvass and record the result, such board has no authority to pass upon questions involving the validity of the act. (p. 674.)

2. Same Where Record Discloses Intention of Said Board to

Entertain and Act Upon Such Questions, Prohibition Will Lie.

Where the record discloses an intention of said board to entertain and act upon such questions, prohibition will lie.. (P. 676.)

Rule in Prohibition, Barbour County.

A writ of prohibition was awarded D. Dickinson, Petitioner against Willie Thorn and others etc. Ex-officio a Board of Canvassers of Barbour County and others, respondents.

Writ awarded.

J. Blackburn Ware, Hugh S. Byrer and Paul B. Ware, for petitioner.

W. T. George and Dayton Stemple, for respondents.

Woods, Judge:

A rule issued from this Court on the 7th day of December, 1926, requiring the commissioners of the county court of Barbour county, sitting as a board of canvassers for said county, to refrain from taking any action upon a motion, made by one Robert P. Ryan, to reject all the ballots cast at the last gen- eral election for the ratification or rejection of an act of the Legislature, 1925 (Chapter 117), "to reform, alter and modify the county court of Barbour county, under the twenty-ninth section of the eighth article of the Constitution of "West Virginia '', by which act it was provided inter alia that the county court shall be composed of eight commissioners. Said motion was to reject all ballots for the following reasons: (1) that no proper amendment was submitted by the Legislature of 1925 or at any other time upon said question; (2) that the question under the Constitution and laws of this State was not properly submitted to the voters at the said election; and (3) for other reasons appearing on the face of the record the votes cast upon said matter are wholly ineffective to constitute a new body in lieu of the county court of Barbour county.

Respondents appeared on the return day and answered that unless said motion related in part to some matter other than the validity or constitutionality of the act, or a matter or question within their jurisdiction, they would overrule said motion; and asked that they recover costs in the defense of the rule.

So much of the act (Chapter 117, Acts 1925), as is necessary to the decision of the question here involved, reads as follows:

"Sec. 5. At the general election in the year one thousand nine hundred and twenty-six the question of the adoption of the system provided for in this act shall be submitted to the voters of the county of Barbour, voting at such election. Notice of such election shall be given by the publication of this act in each of the newspapers published in said county, once in each week, for four successive weeks next preceding said election. The tickets for the vote on such question shall be furnished by the county court, and shall have printed thereon, "for modification of county court," and "against modification of county court," and the said ballot shall otherwise conform to the requirements of chapter three of the code of West Virginia respecting ballots to be voted at a general election, but the said ballot shall be separate from the ballots voted at such general election aforesaid.

"Sec. 6. Such election, at each place of voting in said county, shall be superintended, conducted and returned by the same officers, at the same time, and in the same manner as the election of members of the legislature is superintended, conducted and returned, and the result of each place of voting shall be certified and returned to the county court now in existence in Barbour county. Said court shall convene in special session as a board of canvassers, and do and perform all acts and things respecting the said election required of them by...