Duty v. Thompson

• Decision Date: 14 December 1916
• Docket Number: (No. 3281.)
• Parties: DUTY v. THOMPSON et al.
• Court: West Virginia Supreme Court

91 S.E. 11
(79 W.Va. 415)

DUTY
v.
THOMPSON et al.

(No. 3281.)

Supreme Court of Appeals of West Virginia.

Dec. 14, 1916.

(Syllabus by the Court.)

Petition by M. K. Duty for writ of prohibition against S. M. Thompson and others. Writ issued.

R. L. Gregory, of Parkersburg, S. B. Avis, of Charleston, and R. Dennis Steed, of Hamlin, for petitioner.

Clyde B. Johnson, of Charleston, for respondents.

POFFENBARGER, J. On the eighth day after the county court of Wirt county, sitting as a board of canvassers, had completed the work of canvassing the returns of the election held in that county on the 7th day of November, 1916, declared the results thereof, entered the same upon its records, issued certificates of election in accordance therewith, and adjourned sine die, R. S. Blair, a candidate for the office of state senator, voted for in said county at said election, made a demand upon the members of said court for a recount of the ballots as to that office. They met and ordered that such recount be granted and fixed December 4, 1916, as the day for commencement thereof. M. K. Duty, the opposing candidate for the same office, asks a writ of prohibition to restrain them from proceeding to recount the ballots, on the ground that the demand for such action came too late.

In view of a statute expressly conferring it (section 89, c. 3 [sec. 111], Code), the jurisdiction of this court by prohibition in such case is not questioned, if the demand for a recount was deferred too long.

The time limit on such a demand has not been judicially ascertained or declared in this state. Our reports disclose nothing more than a dictum in Hebb v. Cayton, 45 W. Va. 578, 32 S. E.187, to the effect that it is too late to ask a recount after the result of the election has been entered upon the record. This opinion of Judge Brannon, expressed in marking the distinction between a case supposed and the one under consideration, accords with uniform decisions in all other jurisdictions. Not a single departure from the rule has been cited or found. The numerous cases asserting the proposition are cited by the text-writers. 9 R. C. L. title "Elections, " § 115; Cooley, Const. Lim. (7th Ed.) p. 936; McCrary, Elec. 267, 268, 269; Am. & Ency. L. 750; 15 Cyc. 383.

The character of the "canvass of the returns" required by the statute, differing, it is said, from that of the canvass in some other states, is relied upon as affording strong reason for departure from the general rule respecting the time limit upon...