Hebb v. Cayton
| Decision Date | 10 December 1898 |
| Citation | 45 W.Va. 578,32 S.E. 187 |
| Court | West Virginia Supreme Court |
| Parties | HEBB. v. CAYTON. |
Mandamus—Practice—Elections—Canvass—Recount.
1. Mandamus lies to compel a board of canvassers canvassing returns of an election to recount the ballots between competing candidates for office on the demand of either, when they refuse such recount.
2. A candidate asking a recount of ballots need not assign errors in the first count, or give any reason for a recount.
3. Where ballots once recounted as between candidates for one office are again sealed up, that will not debar a candidate for another office from demanding a recount as to the office for which he was a candidate.
4. Where, upon a petition for a mandamus, a rule to show cause why the writ should not issue is awarded, instead of a mandamus nisi, and there is no answer to the rule raising an issue of fact, there need he no writ of mandamus nisi, and a peremptory writ issues; but where there is an answer raising an issue of fact, a mandamus nisi, embodying the facts justifying the mandamus, must be awarded, and it is treated as the declaration.
(Syllabus by the Court.)
Error to circuit court, Tucker county; Joseph T. Hoke, Judge.
Mandamus by Charles M. Hebb against the county commissioners of Tucker county as a board of canvassers. A peremptory writ issued, and William M. Cayton brings error Affirmed.
W. B. Maxwell and C. Wood Dailey, for plaintiff in error.
Dayton & Dayton and Fred. O. Blue, for defendant in error.
BRANNON, P. Charles M. Hebb and William M. Cayton were candidates for the clerkship of the county court of Tucker county at the election in November, 1896. While the commissioners of the county were in session as a board of canvassers, canvassing the returns of the election, Hebb demanded a recount of the ballots for that office, which, being refused, he asked and obtained from the circuit judge a mandamus to compel such recount, and Cayton sued out the writ of error we now decide. It is urged before us that certiorari, not mandamus, is the proper remedy. The action of canvassers in counting or recounting ballots is purely a ministerial act, one which the law commands them to do. Brazie v. County Com'rs, 25 W. Va. 213; Mar-cum v. Commissioners, 42 W. Va. 263, 26 S. E. 281. They have no choice to do or not do it, under proper circumstances. At common law, if, having entered upon a count or recount, they commit any error, it is to be corrected by certiorari, not mandamus, as mandamus is not an appellate process. It does not lie to direct the inferior tribunal how to decide, but only to compel it to act when it refuses to act at all. Board v. Minturn, 4 W. Va. 300; State v. County Court, 33 W. Va. 589, 11 S. E. 72; Miller v. County Court, 34 W. Va. 285, 12 S. E. 702; Railway Co. v. Paull, 39 W. Va. 142, 19 S. E. 551. So, the statute giving right to Hebb to demand the performance of this ministerial act, mandamus is a proper remedy at common law. But, even if the act of recount were not ministerial in character, as chapter 25, Acts 1893, amending section 89, c. 3, Code 1891, provides that "any officer or person upon whom any duty is devolved by this chapter may be compelled to perform the same by mandamus, " it would clearly warrant the use of mandamus in this case. Indeed, we held in Marcum v. Commissioners, 42 W. Va. 263, 26 S. E. 281, that it gives mandamus, in matters under the election law, more scope than at common law, making it applicable to such matters, whether ministerial or judicial; in other words, giving it the appellate function of certiorari. One excuse made for the commissioners in refusing Hebb's request for a recount is that they had made a recount in one district of the county between two candidates for justice, and those ballots had been again sealed, and the commissioners did not think they had right to reopen them. A strange proposition, indeed, — that because ballots of one district had been sealed after a recount between district officers, this should forbid their recount in an election between candidates for county or other officers. Strange that such sealing of ballots Is a burial without resurrection to answer the loud call of public justice. And for such a proposition language of Judge Snyder in Chen-owith v. Commissioners, 26 W. Va. 230, is cited. He said only that after one recount the same candidate could not have another, carefully limiting his meaning to the same candidates. Those ballots, though sealed, are there to ascertain the true result of the popular verdict as to any and all candidates voted for; to correct mistakes at the precincts. But in truth the ballots had not been actually sealed again, for the commissioners certify that while yet they were considering a ballot in the justices' recount, "and before the ballots cast in said district were resealed and the result declared, but after the ballots had been counted, the result ascertained, the ballots tied up, and were being sealed, " Hebb asked the recount. The plea that there could be no recount after sealing because the ballots might be tampered with in the meantime, can in this case have no force, because they had not left the hands or eyes of the commissioners. If resealed, the mere possibility of fraud does not stifle their evidence.
It is said Hebb gave no reason for a recount, —specified no error in the first count. How could he specify? He wanted the...
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