Duty v. Thompson S.

• Decision Date: 14 December 1916
• Docket Number: No. 3281.,3281.
• Citation: 79 W.Va. 415
• Court: West Virginia Supreme Court
• Parties: M. K. Duty v. S. M. Thompson et als.

79 W.Va. 415

M. K. Duty

v.S. M. Thompson et als.

No. 3281.

Supreme Court of Appeals of West Virginia.

Submitted December 9, 1916.

Decided December 14, 1916.

1. Elections Canvassing Board Recanvass.

After a county court, sitting as an election board of canvassers, has legally and completely canvassed the returns of an election, ascertained the results, entered the same upon its record, issued the certificates of election and adjourned sine die, in the absence of a demand for a recount, it is functus officio and without power to reconvene and recount the votes cast. (p. 416).

2. Same Canvassing Declaration of Result.

To declare the results of an election and issue certificates of election, without having recounted the votes, when no demand for a recount has been made, is not irregular, erroneous nor incomplete procedure, (p. 416).

3. Same Canvassing Result Demand for Recount.

A demand for a recount made after the board of canvassers has legally and fully canvassed the returns and declared and recorded the result, comes too late and avails nothing, (p. 416).

4. Prohibition, Wbit of Issuance.

A county court may be restrained from proceeding to recount votes for the office of State Senator, on a demand therefor, made after it has legally ascertained and declared the result and adjourned, by a writ of prohibition from this court, (p. 416).

Petition by M. E. Duty for writ of prohibition against S. M. Thompson and others.

Writ issued.

R. L. Gregory, S. B. Avis and R. Dennis Steed, for petitioner.

Clyde B. Johnson, for respondents.

P'offenbarger, judge:

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 Dec. 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, sec, 89, ch. 3, 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 judically ascertained or declared in this state, Our reports disclose nothing more than a dictum in IT ebb v. Cay ton, 45 W. Va. 578, 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 11. C. L., Title Elections, sec. 115; Coolcy, Con, Lim., 7 Ed., p. 936; McCrary, Elec, sees. 267, 268, 269; Am. & Eng. Ency. L., 750; 1.5 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 demands for recounts. Though our canvass does not include the counting of the ballots, it is necessarily an entire and complete function in itself, final and decisive, in the absence of a recount or contest. Nor does omission of the count of votes from the faces of the ballots imply lack of such a count in the election procedure, considered as a whole, for it takes place at the election precincts, before the inspection and consideration of the returns by the board of canvassers. In the absence of a recount allowed by the statute, upon demand, this count is conclusive as to the prima facie right to the office. As a recount is not contemplated, except upon a demand therefor, the canvass may be completed without it,...