j. W. Luther v. W. j. McClaren.

• Decision Date: 05 October 1920
• Docket Number: No. 4195.,4195.
• Citation: 87 W.Va. 133
• Court: West Virginia Supreme Court
• Parties: j. W. Luther v. W. j. McClaren.

87 W.Va. 133

j. W. Luther

v.W. j. McClaren.

No. 4195.

Supreme Court of Appeals of West Virginia.

Submitted September 14, 1920.

Decided October 5, 1920.

Elections No State Court Has Jurisdiction of a Contest Betwen Rival Candidates for Primary Nomination for State Senator.

Neither the circuit court nor this court upon appeal or writ of error is given jurisdiction by any statute relating to the subject, to hear and determine a contest between rival candidates for the nomination at a primary election for the office of state senator, nor has the legislature created any other court or tribunal where such a contest may be heard and determined.

(Williams, President, absent.) Error to Circuit Court, Mingo County.

Proceeding by j. W. Luther, begun by notice and petition, to contest the primary nomination of W. j. McClaren for the office of state senator. Proceeding dismissed, and petitioner brings error.

Affirmed.

Sanders & Crockett, S. D. Stokes and A. G. Fox, for plaintiff in error.

Anderson, Strother, Hughes & Curd, and B. Randolph Bias, for defendant in error.

Miller, Judge:

This is a proceeding begun by plaintiff, by notice and petition, in the circuit court of Mingo County, to contest the nomination of the defendant for the office of state senator, on the Republican ticket, for the Sixth Senatorial. District of West Virginia, at the primary election held pursuant to law, on May 25, 1920.

That defendant, on the face of the returns of said primary election, was nominated for said office by a majority of the votes cast and counted for him, is not controverted; and it is not sought by this proceeding to review, by original process of this court or otherwise, the action of the election commissioners or of the county court sitting as a board of canvassers. The basis of this controversy is that some of the ballots printed and distributed by the ballot commissioners to the voters of said Mingo County, by mistake of the printer, did not contain the name of petitioner as a candidate for said office along with that of the defendant, under the heading "For State Senator", and that he was thereby deprived of many votes which he might and naturally would, have received, and, in legal effect, was defrauded out of such nomination, and that, as to petitioner at least, said ballots did not constitute the official ballots provided by the ballot commissioners, and that those ballots, numbering 1165, should not have been cast, received or counted for defendant, as provided by section 33, chapter 3 of the Code, made applicable to primary elections by section 24 of chapter 26 of the Acts of 1915.

The circuit court, upon the hearing upon the petition, answer and. proofs taken, denied petitioner any relief and dismissed his petition, to which judgment we awarded the petitioner, at the present term, a writ of error, and the case is now before us upon, the stipulation of counsel waiving maturity of the case for hearing in regular course under the rules governing in such cases.

At the threshold counsel for defendant challenge our jurisdiction, and our first duty is to stop and inquire into this question, before approaching the case on its merits.

On this question counsel for contestce contend that an election contest is not a suit or case within the meaning of our constitution or statutes. They cite us to Williamson v. Lane, 52 Texas 334, holding that an election contest is not included in the term "suit or case": also to Upshur County v. Rich, 135 IT. S. 167', deciding that a proceeding by executive or administrative offi- cers, such as boards of canvassers, is not a case or suit which under the constitution permits an appeal or writ of error to the supreme court. But our constitution, section 3 of article VIII, includes among the classes of cases of which we are given appellate jurisdiction, specifically "such other appellate jurisdiction, in both civil and criminal cases, as may be prescribed by law." (Section 26a(24), chapter 3, Barnes' Code 1918, says: "All provisions of chapters three and. five of the code of West Virginia, so far as the same are not in conflict with and not modified by this act, shall, so far as they arc germane, apply to and are hereby made applicable to the primary elections." This provision is relied, on as to the form and contents of the official ballot prescribed by section 26a(12) of the same chapter. They further rely on. section 26a(22) of the same chapter, providing: "The action of the board of canvassers, or of any political committee, at any primary election, may be appealed from by any candidate thereat, to the circuit court of the county, and from such court to the supreme court of appeals. All such contests shall be governed by the provisions of the code of West Virginia, so far as the same are applicable, as found in chapter six thereof."

This is not an appeal from the action of the board of canvassers, or of any...