Marquis v. Thompson.

• Decision Date: 14 October 1930
• Docket Number: (No. C. C. 438)
• Court: West Virginia Supreme Court
• Parties: Homer Marquis v. J. B. Thompson et al.

109 W.Va. 504

Homer Marquis

v.J. B. Thompson et al.

(No. C. C. 438)

Supreme Court of Appeals of West Virginia.

Submitted October 7, 1930.

Decided October 14, 1930.

1. Where there has been a primary election to select a candidate of the office of president of the board of education of a magisterial district, and the returns laid before the board of canvassers show that certain specified ballots were cast for such candidate by residents of an independent school district carved in part out of the magisterial district, it is the duty of the board of canvassers to reject such ballots in the ascertain merit and certification of the result: and mandamus will lie to compel the performance of such duty.

Certified Case from Circuit Court, Marshall County.

Mandamus proceedings by Homer Marquis against J. B. Thompson and others. Demurrer to the petition was sustained and the alternative writ quashed, and upon a joint application of the parties, the ruling of the circuit court was certified for review.

Ruling reversed.

Martin Brown, for relator. Lloyd Arnold, for respondents.

Lively, President:

Homer Marquis presented to the circuit court of Marshall County his petition for mandamus directed to the members of the board of canvassers, and its clerk, who canvassed the returns of the primary election held August 5, 1930, to compel them to reconvene if necessary and canvass the returns from precincts Nos. 10 and 11 and reject the returns from precincts Nos. 1 to 9, inclusive, in "Washington District of that County in ascertaining the result of that primary as between himself and P..L. Dowdell, rival candidates for the Republican nomination for president of the board of education of that district, and to certify the result to the board of ballot commissioners for the coming election. On the same day (August 12, 1930) an alternative writ was issued in accordance with the prayer of the petition, and served on defendants. They appeared on September 20th in answer to the writ, demurred to the petition and moved to quash the writ, and also filed a return. The court sustained the demurrer, and quashed the alternative writ as not being sufficient in law, and held that mandamus was not petitioner's remedy. Upon joint application of the parties the court's ruling was certified here for review.

The petition with its exhibits, all made a part of the alternative writ, alleges in substance that Marquis and Dowdell were candidates on the primary ballot for the nomination for president of the said board of education on the Republican ticket at the general election; that by Acts 1905, chapter 54, and amendments thereto, the Independent School District of Moundsville was created and carved out of the magisterial districts of Washington and Clay in said county, and that no person residing within the boundaries of said independent district is eligible to vote for the selection of a candidate for the office of president of the board of education for Washington District; that there are eleven voting precincts in Washington magisterial district, nine of which, numbered from I to 9, inclusive, are within the boundaries of the independent district and located far distant from the boundaries, and there are two voting precincts, Nos. 10 and 11, which are outside of the independent school district boundary. It is further averred that republican primary election ballots containing the names of Marquis and Dowdell, candidates as aforesaid, were sent to the election precincts Nos. 1 to 9, inclusive, and the voters in the independent district were permitted to cast their votes for the selection of a candidate for the office of president of the board for Washington district; that when the returns from the magisterial district were placed before the board of canvassers they proceeded to canvass and count the votes cast for Marquis and Dowdell by the residents of said independent district as shown by the returns from said precincts Nos. 1 to 9, inclusive, and determined from said canvass, including the votes cast at precincts Nos. 10 and 11, that Dowdell had received a majority of the entire vote cast; but they found the entire vote cast at precincts Nos 10 and 11 to be 367, of which Marquis had received 213 and Dowdell 154, making a majority of 59 votes in favor of Marquis. And the petition charges that said board of canvassers had no legal right to canvass and count the votes cast at precincts Nos. 1 to 9, inclusive, and only had legal right and duty to canvass the votes at precincts Nos. 10 and 11, and ascertain and certify the result from those two precincts alone. With the petition is filed an order entered by the canvassing board in which it appears that Marquis appeared before them when they were in session canvassing the votes and protested against their action in...