State ex rel. Daugherty v. Lincoln County Court
| Decision Date | 06 September 1944 |
| Docket Number | 9630,9633. |
| Parties | STATE ex rel. DAUGHERTY v. COUNTY COURT OF LINCOLN COUNTY et al. STATE ex rel. BLANKENSHIP v. BOARD OF CANVASSERS OF LINCOLN COUNTY et al. |
| Court | West Virginia Supreme Court |
[Copyrighted Material Omitted]
Howard B. Lee, of Charleston, for petitioner Daugherty.
M. O Litz, of Charleston, and Buford C. Tynes, of Huntington, for petitioner Blankenship.
Carl A McComas, of Hamlin, for respondents.
ROSE President.
In the primary election held May 9, 1944, Lucien W. Blankenship, Duncan W. Daugherty and Carl C. Douthitt were candidates for the Republican nomination for the position of Judge of the Sixth Judicial Circuit, consisting of Cabell, Lincoln and Putnam Counties.
On the face of the returns Blankenship received a total vote in the three counties of 5,253 votes, and Daugherty a total of 5,153 votes. Douthitt received a lesser number and is not involved in this proceeding. A recount of certain precincts in Cabell County increased Blankenship's plurality to 126.
Daugherty requested a recount of the votes in Lincoln County, whereupon Blankenship also made request for a recount of the same votes. As a result of this recount, Blankenship's vote in Lincoln County was reduced from 899 to 866, while that of Daugherty was increased from 568 to 731, thereby giving Daugherty a plurality in the circuit of 96 votes, carrying with it the nomination for judge.
Within the time and in the manner required by Code, 3-9-2, Blankenship served on Daugherty a notice that on the first day of the next term of the County Court of Lincoln County, beginning July 3, 1944, he would move the court to docket and hear a contest of the vote cast in Lincoln County for the Republican nomination for Judge of the Sixth Judicial Circuit.
On the appointed day Blankenship appeared before the County Court of Lincoln County and duly made his motion for contest, which was objected to by Daugherty on the ground that the court had no jurisdiction to hear and determine such contest. The objection was overruled and the motion for contest was sustained and set to begin on the 10th day of July, 1944. On the 5th day of July, 1944, Daugherty appeared by counsel before four members of this Court, in chambers in vacation of this Court, and presented his petition praying for a writ of prohibition against the members of the County Court of Lincoln County, to inhibit them from proceeding with said contest. The sole ground on which the writ was sought was that the court was without jurisdiction to hear such con test. A rule in prohibition was awarded accordingly, returnable to the first day of a special term of this Court, to begin on the 27th day of July, 1944.
The members of the county court filed their verified return to the rule in which they state that in taking jurisdiction of this contest they were merely performing their duty under Code, 3-4-25, and Code, 3-9-2 and 3, and that "from other facts before said County Court, are of the opinion that there is sufficient ground to believe that the ballots in said 8 precincts may have been illegally tampered with by persons unknown to these respondents, and therefore may not have shown a true and correct result of the votes cast in said 8 precincts for the Republican nomination for the office of Circuit Judge, as aforesaid."
The petition was amended, making Blankenship a party; whereupon, he, Blankenship, appeared and filed his return to the rule issued, in which he sets out at some length the frauds which he had made a basis for the contest, and denied that the county court was usurping or illegally assuming authority to hear the contest. To these returns Daugherty filed demurrers, raising the single question whether the County Court of Lincoln County had jurisdiction to hear and determine such contest.
We are clearly of opinion to sustain these demurrers and to award the writ of prohibition inhibiting the County Court of Lincoln County from proceeding further upon said notice of contest.
An election contest is purely a constitutional or statutory proceeding. The common law knew no such method of testing the validity of a nomination or election. 29 C.J.S., Elections, § 246. Our Constitution confers on county courts jurisdiction to hear and determine contests in strictly limited cases. Section 24 of Article VIII relating to county courts provides, among other powers:
The same limitation is preserved in the statute relating to contests arising out of primary elections for the nomination of candidates for office:
***" Code, 3-4-25.
The county court, having no inherent or common law authority to conduct a contest for any kind of office and having no such authority conferred upon it by the Constitution or by statute to hear such contest, involving other than a county, district, or school district office, is, of course, barren of such power. Accordingly, the writ prayed for must issue.
By a notice dated July 18, 1944, and served on the members of the Canvassing Board of Lincoln County on the 21st and 22d days respectively of July, 1944, Blankenship requested that Board "to reconvene and to determine and certify the results of said primary election for the nomination for the office of Judge of the Sixth Judicial Circuit, in said precincts, along with the results in the other precincts of said county, from the official certificates of re turns as made and certified by the precinct election officers of said eight precincts and as determined by this Board upon their original official canvass," assigning as grounds therefor the alleged tampering with and changing of certain specified ballots of the eight named precincts. The Board took no action on this notice.
On the 27th day of July, 1944, this Court, on the petition of Blankenship, awarded a rule against the members of the Board of Canvassers requiring them to show cause, if any they could, why a writ of mandamus should not issue requiring them to reconvene and redetermine the votes of that county for the Republican nomination for Judge of the Sixth Judicial Circuit "from the certificates of the respective precincts and returns by the election officers of the several voting precincts, as corrected and determined by said Board upon its original canvass of the ballots of said primary election and to recertify the results of said primary election to the Secretary of State of the State of West Virginia accordingly."
This petition of Blankenship alleged, in addition to the necessary formal matters, "that the ballot boxes containing the ballots cast at said primary election have been since the same were delivered by the election officers to the Clerk of the County Court of said county and are now in the record room of the office of said clerk to which the public has access; that the Board of Canvassers of Lincoln County did not, after canvassing the returns of said Primary election from that county preserve the ballots by carefully sealing those from each precinct in a new envelope and each member of the Board writing his name across the place where such envelope is sealed, as required by the statute (Code 3-5-33) but merely fastened the new envelope in which the ballots of each precinct were placed by small metal staple or staples which could easily be removed and replaced without leaving any evidence of tampering; that at the time of the recount of the ballots cast at said Primary election in Lincoln County, none of the envelopes containing the ballots was, or had been in any manner, sealed, and each envelope was fast ened only by small metal staple or staples, similar to those used in fastening said envelopes at the time of the canvass of the returns; that in the course of the recount of the ballots cast in Lincoln County at the said Primary election, the Clerk of the County Court of said County removed from the ballot boxes of all the thirty-two precincts of the County the envelopes containing the ballots, and opened the same without giving the Members of the Board of Canvassers, the petitioner, or counsel, an opportunity to examine said envelopes for the purpose of determining whether any of them had been tampered with; and that said Clerk upon opening each of said envelopes immediately caused the same to be carried away and burned, in violation of the statute (Code, 3-5-33), which required each of said envelopes and the ballots taken therefrom to be sealed in a new envelope"; that the only appreciable changes in the vote for said nomination for judge found upon said recount were in eight precincts, in one of which precincts thirty ballots marked for the petitioner were found also marked by a cross, distinctly different from the other markings on said ballots, for the candidate Douthitt, whereby said thirty votes were counted for neither candidate; and in...
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