State ex rel. Bumgarner v. County Court of Wirt County
| Decision Date | 12 June 1962 |
| Docket Number | No. 12155,12155 |
| Citation | 147 W.Va. 52,125 S.E.2d 883 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Charles H. BUMGARNER, Jr., et al., etc. v. The COUNTY COURT OF WIRT COUNTY et al., etc. |
1. Under Section 33, Article 5, Chapter 3, Code, 1931, as amended, taxpayers and voters of a county have the right to demand a recount of the ballots cast at a special bond election and a special school levy election held in the county.
2. Demand for a recount under Section 33, Article 5, Chapter 3, Code, 1931, as amended, must be made before the result of an election is officially declared.
3. The result of an election is officially declared when all the votes cast have been tabulated and the board of canvassers, in regular session, directs the entry of an order certifying the result in accordance with the tabulations. 4. The county court, as the board of canvassers of the county, is the duly authorized governmental instrumentality, under the provisions of Section 33, Article 5, Chapter 3, Code, 1931, as amended, to canvass the returns and recount the ballots cast at a special school levy election in such county.
5. In the absence of any conflicting special statute, and under the provisions of Section 11, Article 1, Chapter 13, Code, 1931, and the provisions of Section 33, Article 5, Chapter 3, Code, 1931, as amended, the county court, as a board of canvassers of the county, is vested with the power and authority to recount the ballots cast at a special bond election in the county and is the proper governmental instrumentality to conduct such recount.
William L. Jacobs, Parkersburg, for relators.
Beryl A. Cunningham, Parkersburg, Lewis D. Archer, Pros. Atty., Wirt County, Elizabeth, George Shedan, Parkersburg, for respondents.
This original proceeding in prohibition was instituted in this Court on February 9, 1962. The petitioners, Charles H. Bumgarner, Jr., Harry Knotts, John Hale, Kelcie Turner and George Robinson, members of the Board of Education of Wirt County, and Waymond F. Riley, Superintendent of Schools of that county and Secretary of the Board of Education, seek a writ to prohibit the defendants, The County Court of Wirt County and J. W. Morehead, E. W. Allman and Hubert Full, Commissioners of such court and as such ex officio members of the Board of Canvassers of Wirt County, from conducting a recount of the ballots cast at a special bond election and a special school levy election which were held in Wirt County on December 12, 1961. A recount of the votes cast at both special elections having been demanded by five taxpayers and voters of Wirt County on December 22, 1961, the defendants by order entered at a meeting held on January 29, 1962, determined to conduct such recount on February 13, 1962.
Upon the filing of the petition a rule was awarded returnable before this Court on February 27, 1962, at which time this proceeding was continued to enable the respective parties to submit proof in the form of depositions. On April 3, 1962, this proceeding was submitted for decision upon the petition, the answer of the defendants and exhibits filed with the answer, the replication of the petitioners, the depositions and an exhibit therewith filed in behalf of the respective parties, and the written briefs and the oral arguments of counsel for the petitioners and the defendants.
On April 27, 1962, by order entered on that day, this Court held that the petitioners were not entitled to the writ prayed for in the petition, refused to grand the prayer of the petition and discharged the rule previously awarded in this proceeding. This opinion is now filed for the purpose of stating the reasons for the refusal of this Court to grant the writ.
The petitioners charged that upon the canvass of the returns of both elections, held jointly by the members of the board of education as the board of canvassers for the special bond election and the members of the county court as the board of canvassers for the special school levy election on December 18, 1961, in a room of the courthouse of Wirt County, the canvass of the votes of each election was concluded and the result of each election was declared before any demand was made by any person for a recount of the ballots cast at each election. The defendants by their answer denied the foregoing charge and alleged that no declaration of the result of each election was made during or upon the conclusion of the canvass of the votes on December 18, 1961, or at any other time and that no declaration of the result of each election has ever been made.
The proof submitted in behalf of the petitioners showed that during the canvass of the votes of each election, which was conducted jointly by the members of the board of education and the members of the county court acting as boards of canvassers for each election, the results of the vote at some of the individual voting precincts were announced, sometimes by a member of the board of education and sometimes by a member of the county court, and that such votes, as announced, were tabulated by the county superintendent of schools who acted as clerk of the board of canvassers for the special bond election; that the clerk of the county court acted as clerk of the board of canvassers for the special school levy election; that the only persons present during the canvass of the votes were the members of the canvassing boards, the clerk of each board, an attorney representing certain taxpayers and voters who subsequently demanded a recount, and a reporter who appeared with the attorney and, for a short period of time, the sheriff of the county; that the county superintendent of schools who acted as clerk of the board of canvassers of the special bond election tabulated the returns of the seventeen voting precincts at which such election was conducted, determined the total number of votes cast as 1400, the number of 906 votes cast for the bonds and the number of 494 votes cast against the bonds, and entered the foregoing totals upon a tally sheet of the bond election which is filed as an exhibit with the depositions in behalf of the petitioners; that the tally sheet containing the foregoing totals was signed by each of the members of the board of education, by each of the members of the county court, by the county superintendent of schools as clerk of the board of canvassers of the special bond election and by the county clerk as clerk of the board of canvassers of the special school levy election; that about seven o'clock that evening the members and the clerk of each board of canvassers left the room in which the canvass had been conducted without making any formal adjournment or without adjourning either canvass to a future date; that the ballot boxes were deposited with a proper custodian; that the county superintendent of schools took the tally sheet which had been signed by the members of each board of canvassers to the office of the board of education and there computed the percentage of votes cast in favor of the special bond election which he determined to be sixty five per cent and entered that percentage on the tally sheet; and that during the canvass the county superintendent of schools prepared, by pencil, report or minutes of the proceedings taken, and on the day immediately following the canvass, December 19, 1961, he copied the penciled report or minutes by typewriter and entered such copy upon the minutes of the board of education and such minutes were then signed by the president and later by the other members of the board of education.
The county superintendent of schools and other witnesses who testified in behalf of the petitioners stated that the results of both elections were declared before the meetings of the members of each board of canvassers were dissolved on the evening of December 18, 1961. There is no record or documentary evidence in this proceeding, however, which supports or is consistent with the foregoing statements in behalf of the petitioners. The only record introduced in evidence is the tally sheet designated 'Exhibit 1' with the depositions in behalf of the petitioners. This tally sheet discloses only the number of votes cast at each of the seventeen voting precincts, the total of which was 1400 votes, the number of votes cast at each of such precincts for the bonds the total of which was 906, the number of votes cast at each of such precincts against the bonds the total of which was 494, and the percentage of the total votes cast in favor of the bonds amounting to sixty five per cent, which was placed on the tally sheet in the office of the board of education after...
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State ex rel. Booth v. Board of Ballot Com'rs of Mingo County
...County, 4 W.Va. 371 (1870). Only a candidate can demand a Recount of a primary election contest. See, State ex rel. Bumgarner v. County Court, 147 W.Va. 52, 125 S.E.2d 883 (1962) (Rule The deceased, Howard B. Chambers, did demand a recount and was in the process of receiving one at his deat......