State ex rel. Fanning v. Mercer County Court
| Citation | 41 S.E.2d 855,129 W.Va. 584 |
| Decision Date | 22 October 1946 |
| Docket Number | 9889. |
| Parties | STATE ex rel. FANNING v. MERCER COUNTY COURT et al. |
| Court | Supreme Court of West Virginia |
Syllabus by the Court.
The declaration of the result of an election becomes official when all votes cast for the respective candidates have been tabulated and the board of canvassers, or a majority thereof in regular session, signs a written order, certifying the result in accordance with the tabulations, and directs the recordation of said order in the proper election record book.
Burton Sanders & Shaffer, of Princeton, for petitioner.
R H. Pendleton and Ajax T. Smith, both of Princeton, and Albert S. Kemper, Jr., of Bluefield, for respondents.
By this original proceeding in mandamus, relator J. C. Fanning, seeks to compel the Board of Canvassers of Mercer County, West Virginia, and C. I. Johnston, A. C. White, and Fred A. Thomason, members of said board, to grant a recount of ballots cast for and against him at the primary election held on August 6, 1946, as a Democratic candidate for the office of member of the county court of said county for a term of six years.
This proceeding was submitted on relator's petition, the joint and several answer of respondents, and a demurrer to said answer by relator. Although the answer of respondents raises several issues of fact, we treat all facts, well pleaded in the answer, as being true.
Relator's constitutional and statutory qualifications for the office to which he aspired, are not questioned. He was opposed for the nomination sought by him by respondent, C. I. Johnston, and two other persons.
Respondents Johnston, White and Thomason convened as the Board of Canvassers of Mercer County on August 9, 1946, for the purpose of canvassing the votes cast at the primary election held in said county on August 6, 1946. At the first session, the board, without opening and counting the sealed packages of ballots, examined the election returns and made a tabulation of the votes cast in Mercer County at the August 6, 1946, primary election, which showed the votes cast at each precinct of said county for the various candidates. The canvass was not completed on August 9, 1946, and the board adjourned to August 12, 1946, for the purpose of completing it. In the interval between the first and second sessions of the board, its clerk made a computation of all the votes cast in the various precincts for the various candidates at said primary election, showing the totals received by the county and district officers. When the board convened on August 12, 1946, the computation so made was presented to the board. After an examination of the tabulation and computation so made by the clerk, the board found the same to be correct, and thereupon in public session orally declared the result of the aforesaid primary election in accordance with the computed totals thereon shown. After such oral declaration, the clerk of the board was orally ordered to prepare for entry of record the tabulation and certificates of results required by Code, 3-4-20. The clerk was also orally directed to prepare and file certificates of said results with the Secretary of State of West Virginia and the Clerk of the Circuit Court of Mercer County in accordance with Code, 3-4-21. Said certificates were dated August 12, prepared August 13, and signed by all members of the board on August 14, 1946, but it does not clearly appear whether the tabulation was signed. By the methods above indicated the board found that respondent, Johnston, had received 1757 votes; that relator had received 1740 votes; and that the other two candidates had received 1227 votes and 613 votes, respectively.
At eleven forty-five a. m. on the 14th day of August, 1946, before the aforesaid certificates were signed and before any order was signed and ordered to be entered, in the primary election precinct record, relator made a written demand for a recount of the votes cast for and against him.
On August 19, 1946, respondents Johnston, White and Thomason met as a board of canvassers, and, after a hearing upon the demand for recount, refused to grant same on the ground that the results of the primary election held on August 6, 1946, had been ascertained and declared on August 12, 1946.
Relator in petitioning for this writ of mandamus to compel respondents to grant him a recount, makes the following points in support of his contentions: (1) That respondents did not open the sealed packages of ballots cast in the several precincts of Mercer County, count the said ballots without unfolding them, and enter the number of ballots so counted on their record; and (2) that relator made demand for a recount before the results of the primary election were officially declared.
It is well settled that mandamus is the appropriate remedy to require a board of canvassers to reconvene and correct errors it may have committed in attempting to perform its statutory duties. Code, 3-5-41. State v. Sizemore, 124 W.Va. 700, 704, 22 S.E.2d 296; State v. Heatherly, 96 W.Va. 658, 123 S.E. 795.
Respondents admit in their answer that the sealed packages of ballots cast in the several precincts of Mercer County at the primary election of August 6, 1946, were not opened and the ballots counted; but they assert that they have fully complied with the provisions of Code, 3-4-20, relating to the canvassing of ballots for the primary election. They deny that the further steps of opening the packages of ballots, counting the folded ballots and entering the number thereof upon their record, as set forth in Code, 3-5-33, as amended, was required of them in canvassing the ballots for said primary election. Relator, however, contends that the board of canvassers must not only comply with the provisions of Code, 3-4-20, but must also perform the additional duties as provided by Code, 3-5-33, as amended and reenacted by Chapter 61, Acts of the Legislature, 1945. Relator bases this contention upon the wording of Code, 3-5-33, as amended, which states that the board shall follow the procedure, therein set forth, in 'every election'.
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