State Ex Rel. J. M. Phillips v. Heatherly S.
| Decision Date | 14 September 1926 |
| Docket Number | (No. 5681) |
| Citation | 102 W.Va. 116 |
| Court | West Virginia Supreme Court |
| Parties | State ex rel. J. M. Phillips v. W. W. Heatherly et als. |
1. Elections Board of Election Canvassers Has no Power to
Inquire and Determine Right of Candidate to Office Voted for on Official Ballot, on Own Motion, or on Motion of Present Incumbent, Who Was Not Candidate on Official Ballot (Code, c. 3, §§ 68-71).
The powers and duties of a board of canvassers of an election are prescribed in Secs. 68, 69, 70, 71, Chap. 3, Code, and while sitting as such it has no power to inquire into and determine the right of a candidate to the office voted for on the official ballot, upon its own motion, or upon the motion of the present incumbent of the office who was not a candidate on the official ballot, (p. 115.)
2. Mandamus Where Board of Election Canvassers Found
Candidate Received Highest Number of Legal Votes, But Refused to Issue Certificate, That Then Incumbent, Who Was Not Candidate for Re-election, Objected to Issuance of Certificate on Ground That There Was no Vacancy in Office is no Defense to Mandamus to Compel Issuance of Certificate (Code, c. 3, §§ 68-70).
Where the board of canvassers has ascertained the result of an election lawfully held and has found that a candidate on the official ballot has received the highest number of the legal votes cast, but refuses to issue him a certificate of the result as prescribed by the statute, it is no defense to an alternative writ of mandamus to compel the issuance of the certificate, that the then incumbent of the office who was not a candidate for re-election appeared before it and objected to the issuance of the certificate on the ground that there was no vacancy in the office, (p. 118.)
Error to Circuit Court, Barbour County.
Proceeding; by the State, on the relation of J. M. Phillips, for mandamus, to be directed to W. W. Heatherly and others. Judgment for the petitioner, and defendants bring error.
Affirmed.
Wm. T. George, for plaintiffs in error.
C. M. Murphy and I). D. Stemple, for defendant in error.
This is a mandamus proceeding by J. M. Phillips to compel the County Court of Barbour County, and as such, ex officio members of the board of canvassers of that county, to meet and declare the petitioner elected as president of the board of education of Cove District, Barbour County, and to issue to him a certificate of election for that office. The other candidates for the presidency of the board of education and the present incumbent, George H. Coffman, were made parties defendant to the alternative writ. The circuit court granted petitioner the relief prayed for, and it is to this judgment that the plaintiffs in error, the members of the board of canvassers and George II. Coffman, obtained this writ.
In their return to the petition and alternative writ, the plaintiffs in error contend that petitioner should be denied a writ of mandamus, because while it may be true that Phillips was the democratic nominee for president of the board of education of Cove District at the November, 1924 election, and while it may be true that his name appeared upon the ballot used in that election and he may have received the highest number of votes cast for any candidate, yet under our statute law it was the duty of the voters of Cove District to have elected a president of the board of education for said district at the general election held in November, 1922, for a term of four years to begin on July 1, 1923, and until his successor was elected and qualified; that no president of the board...
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State Ex Rel Keith 0. Bumgardner v. Mills, (No. 10148)
...670, 125 S. E. 810; Sanders v. Board of Canvassers, 79 W. Va. 303, 90 S. E. 865; the eligibilty of a candidate, State ex rel. Phillips v. Heatherly, 102 W. Va. 116, 134 S. E. 594; Varney v. County Court of Mingo County, 102 W. Va. 325, 135 S. E. 179; the validity of the appointment, or the ......
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State ex rel. Smith v. Bosworth
...the petition constituted no part of the pleadings in a proceeding in mandamus. This holding was adhered to in State ex rel. Phillips v. Heatherly, 102 W.Va. 116, 134 S.E. 594, and in State ex rel. Bowyer v. City of Spencer, 103 W.Va. 695, 138 S.E. 312. It has also been held that the alterna......
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State Ex Rel. Bumqardner v. Mills, 10148.
...670, 125 S.E. 810; Sanders v. Board of Canvassers, 79 W.Va. 303, 90 S.E. 865; the eligibility of a candidate, State ex rel. Phillips v. Heatherly, 102 W.Va. 116, 134 S.E. 594; Varney v. County Court of Mingo County, 102 W.Va. 325, 135 S.E. 179; the validity of the appointment, or the qualif......
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State ex rel. Zickefoose v. West
...... Miller v. Board, 126 W.Va. 248, syl. 1, 27 S.E.2d 599; State ex rel. Simon v. Heatherly, 96 W.Va. 685, syl. 1, 123 S.E. 795. . For a reference to cases from other jurisdictions in which election officials have been ...325, 135 S.E. 179; England v. Board of Canvassers of Raleigh County, 102 W.Va. 696, 136 S.E. 266; and State ex rel. Phillips v. Heatherly, 102 W.Va. 116, 134 S.E. 594. In the Varney case, an original proceeding in mandamus, this Court held [145 W.Va. 535] in point 1 of the ......