Reynolds v. Bd. Of Canvassers Of Harrison County., (No. 8497)

• Decision Date: 22 October 1936
• Docket Number: (No. 8497)
• Citation: 117 W.Va. 770
• Parties: Moore M. Reynolds v. Board of Canvassers of Harrison County et al.
• Court: West Virginia Supreme Court

117 W.Va. 770

Moore M. Reynolds

v.Board of Canvassers of Harrison County et al.

(No. 8497)

Supreme Court of Appeals of West Virginia.

Submitted October 21, 1936.

Decided October 22, 1936.

October 27, 1936.

(Written Opinion filed October 27, 1936.)

1. Elections

Upon a recount of election ballots as provided in Code, 3-5-33, the canvassing board has no authority "to pass on questions of fraud, intimidation or the manner in which the precinct officers were appointed." Hatfield v. Farley, 97 W. Va. 695, 126 s. E. 413.

2. Elections

The statutory law contemplates that an election recount and contest shall be sepaTate proceedings. The former must terminate and the result be declared before the latter may commence. The informal conversion by opposing candidates of a recount into a quasi contest without observing the procedure for contests provided in Code, 3-9-2, is disapproved.

Original mandamus proceeding by Moore M. Reynolds against the Board of Canvassers of Harrison County and others.

Writ issued.

A. J. Rosenshine and Fred L. Shinn, for relator.

Strother & McDonald, John B. Wyatt, and Cornelius

C. Davis, for respondents.

Hatcher, President:

In this proceeding, the relator seeks to have the Canvassing Board of Harrison County record officially the result of the recount of ballots cast for candidates for the nomination for sheriff on the Democratic ticket, in three certain precincts in the May, 1936, primary election. The relator received the nomination according to the election returns and also according to the actual recount of the ballots. But the Board (a) refused to record the ballots cast at three precincts and (b) by a majority vote, rejected all the ballots of those precincts on account of alleged irregular conduct and fraud, and (c) declared respondent, H. C. Morrison, the nominee. Only one precinct, Coal number 4, will be considered, it being conceded that if the vote there is restored, the relator will receive the nomination, regardless of any action which might be taken at the other two questioned precincts.

After the Board recounted the ballots from this precinct, it was passed temporarily (according to a minute of the Board) until witnesses could be examined "in order to procure correct returns and ascertain the true result of the election." A mutual arrangement was made, however, that in such examination respondent Morrison and respondent, R. L. Fetty, another rival candidate for sheriff, should be regarded as plaintiffs and relator should be regarded as defendant; and that Morrison and Fetty should introduce their evidence, and then the relator should introduce his evidence. A motion by relator that "the plaintiffs" be required to furnish "a bill of particulars" was denied, The parties then proceeded to introduce reams of testimony, most of which was pertinent only to a contest. Scores of witnesses were examined by both sides in an effort to show irregularities and fraud at many precincts. This was improper, since on a recount, a canvassing board has no authority "to pass on questions of fraud, intimidation, or the manner in which the precincit officers were appointed." Hatfield v. Farley, 97 W. Va. 695, 126 S. E. 413. Accord: Mahan v. Board, 97 W. Va. 670, 672, 125 S. E. 810.

The evidence affecting Coal precinct number 4 may be summarized as follows: Several persons who had been appointed election officials by the county court failed to appear and others were selected by the election...