State ex rel. Watts v. Kelly, No. 10695

• Court: Supreme Court of West Virginia
• Writing for the Court: HAYMOND
• Citation: 83 S.E.2d 465,140 W.Va. 177
• Parties: STATE ex rel. Lester W. WATTS, v. E. W. KELLY, C. B. Vickers and Guy Douglas, Commissioners of the County Court of Fayette County, Sitting as a Board of Canvassers.
• Docket Number: No. 10695
• Decision Date: 21 September 1954

Page 465

83 S.E.2d 465 140 W.Va. 177 STATE ex rel. Lester W. WATTS,
v.
E. W. KELLY, C. B. Vickers and Guy Douglas, Commissioners of
the County Court of Fayette County, Sitting as a
Board of Canvassers. No. 10695. Supreme Court of Appeals of West Virginia. Submitted Sept. 2, 1954.
Decided Sept. 21, 1954.

Page 466

Syllabus by the Court

1. In the absence of evidence to the contrary, the acts of an election officer in the performance of a duty imposed upon him by law are presumed to have been legally performed.

2. 'Upon a recount of election ballots a board of canvassers may not consider or determine questions of fraud, intimidation or illegality in an election, the eligibility of the candidate, [140 W.Va. 178] the validity of the appointment of precinct election officers, the qualifications of such election officers, or irregularities discoverable in the course of a recount which can be established only by evidence extrinsic to the election returns.' Point 4, syllabus, State ex rel. Bumgardner v. Mills, 132 W.Va. 580 [53 S.E.2d 416].

3. 'Irregularities in the conduct of an election, even though they constitute a violation of the election laws, not shown to have affected its result, will not vitiate an election in the absence of a showing of fraud or misconduct preventing the free expression of the will of the voters.' Point 2, syllabus, Maynard v. Hammond, W.Va. [79 S.E.2d 295].

4. He who seeks relief by mandamus must show a clear legal right to the remedy.

Laird & Summerfield, Fayetteville, for relator.

Mahan, White & Higgins, Fayetteville, for respondents.

HAYMOND, Judge.

In this original proceeding in mandamus, the petitioner, Lester W. Watts, seeks to compel the defendants, E. W. Kelly, C. B. Vickers and Guy Douglas, Commissioners of the County Court of Fayette County, West Virginia, sitting as the board of cantrassers of that county, to reconvene and correct certain errors alleged to have been committed by the board in recounting ballots cast at the August 1954 primary election, and to reject and refuse to count the ballots cast in four precincts for the petitioner and William N. Jasper, Jr., rival candidates for the Democratic nomination for the office of member of the State [140 W.Va. 179] Senate for the Eleventh Senatorial District composed of the counties of Fayette and Greenbrier in this State.

Upon the petition, filed August 25, 1954, a rule was issued by this Court returnable September 1, 1954, at which time the defendants filed their demurrer and answer; and this proceeding was submitted for decision upon the foregoing pleadings and the written briefs and the oral arguments in behalf of the respective parties.

The principal allegations of the petition are that the petitioner and William N. Jasper, Jr., were candidates for the Democratic nomination for the office of member of the State Senate for the Eleventh Senatorial District, composed of Fayette and Greenbrier Counties, at the primary election held on August 3, 1954; that after the votes cast at such primary election had been canvassed by the board of canvassers of Fayette County each of the candidates demanded a recount of certain precincts; that upon such recount, as appears from the election records, the election commissioners and the poll clerks who served as such at Precinct No. 9, Oak Hill, Precinct No. 13, Oak Hill, and Precinct No. 21, Harvey, were not sworn and that such election officers did not subscribe the oath required by Section 16, Article 4, Chapter 3, of the Code of West Virginia, 1931; that it appears, from the election records, that at Precinct No. 10, Oak Hill, the election officials who served at that precinct did not certify the number of votes cast for the candidates of the Democratic party and of the Republican party; that it also appears, from the election records at Precinct No. 13, Oak Hill, that the seal was broken on the package containing the ballots cast at such precinct when such package was presented to the board of canvassers during the recount, and that, for that reason, fraud

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and misconduct occurred in such primary election at that precinct; that the board of canvassers committed error in overruling the motions of the petitioner to reject and not to count the ballots cast at Precinct No. 9, Oak Hill, Precinct No. 13, Oak Hill, and Precinct No. 21, Harvey, and in permitting a recount of the ballots cast at Precinct [140 W.Va. 180] No. 10, Oak Hill, in Fayette County; that the official canvass of the votes cast at such primary election in Fayette and Greenbrier Counties, comprising the Eleventh Senatorial District, shows that the petitioner received 62 votes less than the votes received by William N. Jasper, Jr., for the office of member of the State Senate in that senatorial district; and that if the relief sought by the petitioner is granted the result of the primary election in Fayette County will be changed to the extent that the petitioner will obtain the nomination as the Democratic candidate for that office in that district.

By their answer the defendants, admitting certain allegations and denying certain other allegations of the petition, deny the allegations of the petition...