State Ex Rel. Simon v. Heatherly

• Decision Date: 24 June 1924
• Docket Number: (No. 5162.)
• Citation: 123 S.E. 795
• Parties: STATE ex rel. SIMON. v. HEATHERLY et al.
• Court: West Virginia Supreme Court

123 S.E. 795

STATE ex rel. SIMON.

v.HEATHERLY et al.

(No. 5162.)

Supreme Court of Appeals of West Virginia.

June 24, 1924.

(Syllabus by the Court.)

Original mandamus by the State, on the relation of W. S. Simon, against W. W. Heatherly and others. Writ awarded.

W. T. George and J. Blackburn Ware, both of Philippi, for relator.

H. G. Kump, of Elkins, for respondents.

MEREDITH, P. Petitioner, W. S. Simon, who was one of the Republican candidates for nomination for sheriff of Barbour county at the primary election held May 27th last asks for a peremptory writ of mandamus to compel the county commissioners of that county, sitting as a board of canvassers, to reject certain ballots which the board upon a recount insists should be counted for his opponent, Sherman Lindsey.

It appears from the alternative writ and return that upon a recount of the Republican primary ballots, had at the instance of the petitioner, of the votes cast at precinct No. 2, known as "White Oak" precinct in Glade district, 28 were cast for Sherman Lindsey, one for W. S. Simon, and none for Andrew Stevens, all candidates for the Republican nomination for sheriff; and at precinct No. 1, known as "Galloway" in Pleasant district, 39 votes were cast for Sherman Lindsey, 28 for W. S. Simon, and 13 for Andrew Stevens. It also appears that all of the Republican ballots cast at these two precincts were signed by the Republican poll clerk only; that the Democratic ballots cast at the same precincts were signed only by the Democratic poll clerk; that, if the law requires that both poll clerks sign all the ballots cast, the failure of the clerks to so sign was an innocent mistake, and it was not intended by either clerk by such failure to commit any fraud upon either voters or candidates. It also appears that, if these ballots be rejected, it will result in the nomination of W. S. Simon, but, if they be counted, Sherman Lindsey will be the nominee.

The jurisdiction of this court in this proceeding is questioned upon four grounds:

(1) That the petitioner has a plain, adequate, and complete remedy by appeal, to the circuit court under chapter 3, § 26a (22), Barnes' Code 1923.

(2) That the primary election law makes no provision for controlling a board of canvassers in canvassing the returns of a primary election, or in counting or recounting the votes at such an election, and therefore the statutory remedy by appeal is exclusive.

(3) That the board in the present instance has completed the recount and exhausted its function; therefore mandamus will not lie to compel its members to reconvene and perform their duties in a different way.

(4) That the alternative writ issued by this court is not made returnable to the first day of the term, nor in the clerk's office to the first Monday in the month nor to a rule day, as provided in section 2, c. 124, Code, and is therefore void.

We will take up these points in the order stated. Section 26a (22), c. 3, Barnes' Code, provides:

"The action of the board of canvassers, or of any political committee, at any primary election, may be appealed from by any candidate thereat, to the circuit court of the county, and from such court to the Supreme Court of Appeals. All such contests shall be governed by the provisions of the Code of West Virginia, so far as the same are applicable, as found in chapter six thereof."

Is the remedy provided exclusive? We are cited to the case of Doran v. Whyte, 75 W. Va. 368, 83 S. E. 1025, where it was held that "a remedy given by statute which is as speedy and equally as efficacious as mandamus excludes the latter remedy." That involved an application here for a writ of mandamus to compel a county clerk to execute a tax deed to the petitioner for some lands purchased by him at a tax sale. It was refused because section 22, c. 31, Code 1913, gave a speedy and effective remedy, by providing that the purchaser might, upon ten days' notice to the clerk, apply by petition to the circuit court, or judge thereof in vacation, and obtain an order for the execution of the deed. That is certainly speedy and effective. But a week earlier, in Eureka Pipe Line Co. v. Riggs, Sheriff, 75 W. Va. 353, 83 S. E. 1020, Ann. Cas. 1918A, 995, it was held that— "The remedy given by section 39, c. 39, Code 1899, against a sheriff, for failure to pay county orders drawn on him, that remedy not being as competent to afford relief on the * * * subject-matter, and one equally as convenient, beneficial, and effective, is not exclusive of the remedy by mandamus; it is cumulative only of that common-law remedy."

The true test is whether there is another remedy equally convenient, beneficial and effective. If so, mandamus will not lie. Here there is a remedy provided by a so-called appeal; but, while it may be effective, yet it is not as convenient or beneficial. We have heard much of the law's delays, and all are fully cognizant of the great opportunity for delay in the trial and disposition of cases. If petitioner were compelled to proceed by appeal, his case would take its turn on appeal in the circuit court; it must be disposed of in term, which might be months after the recount by the board of canvassers. Meantime neither party would know which one was nominated. The defeated party might, under the statute, obtain an "appeal" to this court, where it would take its turn upon the docket, and the general election might be held before it could be determined who was the legal nominee. Under such circumstances it can hardly be held that the statutory appeal affords a remedy equally convenient and effective as that of mandamus, and therefore that it is exclusive.

The second objection is that there is no specific provision in the primary election law for controlling the action of the board of canvassers by mandamus. That seems to be true. Section 89, c. 3, Barnes' Code 1923, provides for mandamus to control the board of canvassers in the exercise of their duties in relation to general elections; section 98a (16) of the same chapter affords a like, remedy in matters of registration of voters. But the primary election statute, in section 26a (24) c. 3, Code, provides:

"All provisions of chapters three and five of the Code of West Virginia, so far as the same are not in conflict with and are not modified by this act, shall, so far as they are germane, apply to and are hereby made applicable to the primary elections."

Section 89, c. 3, Code, is germane and not in conflict with the primary election statute. Therefore, that section is applicable to primary elections and gives ample authority to courts to compel by mandamus in any proper case any officer or person to perform any duty devolved upon him under the primary election law. Section 89 provides that—

"A mandamus shall be from the Supreme, Court of Appeals, or any one of the judges thereof in vacation, returnable before said court, to compel any officer herein to do and perform legally any duty herein required of him."

This applies to primary as well as to general elections; the second objection is therefore not well taken.

[3j The third objection is equally unfounded. It was held in Daniel v. Simms, 49 W. Va. 554, 39 S. E. 690, that—

"If a board of canvassers adjourn, without having legally performed its duties under section 68 of chapter 3 of the Code, such board may be reconvened by writ of mandamus under section 89 of said chapter and compelled thereby to correct any errors it may have committed in attempting to perform such duties."

That case involved a general election, but the law there stated is clearly applicable here. If it were not, a board of canvassers might willfully disregard the haw, by counting ballots for one candidate when they were voted for another, declare the result, and adjourn, and thus compel the defeated candidate to proceed by appeal or other method of contest. The duties of the board are not performed until they are performed legally; until that is done, its action may be...