State ex rel. Wilson v. County Court of Barbour County

• Decision Date: 06 July 1960
• Docket Number: No. 12041,12041
• Citation: 145 W.Va. 435,114 S.E.2d 904
• Parties: . Supreme Court of Appeals of West Virginia
• Court: West Virginia Supreme Court

Page 904

114 S.E.2d 904

145 W.Va. 435

STATE ex rel. Minter L. WILSON v. COUNTY COURT OF BARBOUR COUNTY et al.

No. 12041.

Supreme Court of Appeals of West Virginia.

Submitted June 21, 1960.

Decided July 6, 1960.

Syllabus by the Court

1. By Section 8, Rule II of this Court, exhibits may be filed with and made a part of the pleadings in any original proceeding in habeas corpus, mandamus, or prohibition instituted in this Court.

2. Mandamus is the proper remedy to require a board of canvassers to perform the duties imposed upon it by law.

3. A board of canvassers, being created by statute, can do only that which the statute authorizes it to do.

4. The primary duty of a board of canvassers is to ascertain and declare the true result of the election in a county according to the election returns.

5. The powers and the duties of a board of canvassers for a primary election are conferred and imposed by Section 20, Article 4, Chapter 3, Code, 1931, and the canvass of the result of a primary election is governed exclusively by the provisions of that section of the statute.

6. Mandamus will not be awarded to compel the board of canvassers to perform an act which it is without lawful authority to perform or to consider and pass upon matters which by law it does not have the power to determine; and the original jurisdiction of this Court in mandamus does not extend beyond its authority to command the board of canvassers to do that which it is required by law, but has refused, to do.

7. 'After a county court, sitting as an election board of canvassers, has legally and completely canvassed the returns of an election, ascertained the results, entered the same upon its record, issued the certificates of election and adjourned sine die, in the absence of a demand for a recount, it is functus officio and without power to reconvene and recount the votes cast.' Point 1, syllabus, Duty v. Thompson, 79 W.Va. 415 .

8. 'Demand for a recount by a candidate in a primary election must be made before the result of the election has been officially declared by the board of canvassers.' Point 1, syllabus, Alderson v. The County Court of Summers County, 132 W.Va. 61 .

Charles R. McElwee, Charleston, for relator.

Edward T. Luff, Pros. Atty., William T. George, Jr., John A. Mosesso, Philippi, for respondents.

HAYMOND, Judge.

In this original proceeding in mandamus, instituted in this Court on June 7, 1960, the petitioner, Minter L. Wilson, a candidate for delegate to the 1960 Democratic National Convention from the Second Congressional District of West Virginia, seeks a writ to compel the defendants, The County Court of Barbour County, Ray Martin, Woods Poling and Robert McDaniel, Commissioners of The County Court of Barbour County, constituting the board of canvassers of Barbour County for the primary election held on May 10, 1960, to reconvene as such board of canvassers, to find and declare invalid all votes, and not to count any vote, cast in that county at that primary election for the two offices of delegates from that congressional district to the 1960 Democratic National Convention, including the votes cast for the defendant Virginia Williams, who was also a candidate for delegate to the Democratic National Convention, and to certify the results of such primary election to show that no votes were cast in Barbour County for any of the candidates for the two offices of delegates from that congressional district to the 1960 Democratic National Convention.

Upon the petition and the thirteen exhibits filed with it, this Court issued a rule returnable June 21, 1960, and at that time this proceeding was heard and submitted for decision upon the demurrer, the answer and the amended answer of the defendants The County Court of Barbour County and its members constituting the board of canvassers of that county, upon the demurrer and the answer of the defendant Virginia Williams and her motion to strike the exhibits filed with the petition, upon the replies of the petitioner to the ansers of the defendants, and upon the oral arguments and the written briefs of the attorneys of the respective parties.

By order entered June 27, 1960, this Court held that the petitioner was not entitled to a writ of mandamus as prayed for and refused to award such writ; and this opinion is now announced for the purpose of stating the reasons which promoted this Court to deny the writ sought by the petitioner.

As shown by the allegations of the petition and the exhibits filed with it the petitioner complied with the requirements necessary to enable him to have his name placed upon the official ballots to be used in all of the fifteen counties, including Barbour County, in the Second Congressional District at the primary election on May 10, 1960; his name and the names of eleven other candidates for the two offices of delegates from the Second Congressional District were included in the list of candidates certified by the secretary of state to the clerk of the circuit court of Barbour County; and his name and the names of ten other candidates for those two offices, one candidate having previously withdrawn his name from the official ballots, were placed on the official ballots prepared and sent to the printer by the board of ballot commissioners of Barbour County and on the proof of such official ballots prepared by the printer and transmitted to the board of ballot commissioners. It also appears from the exhibits filed with the petition that at the primary election the petitioner received no votes in Barbour County; that in the fourteen other counties Robert E. Hedrick received 8112 votes, the petitioner received 7534 votes and the defendant Virginia Williams received 7441 votes; that if the votes cast for the candidates for the two offices in Barbour County are included in the total vote, Hedrick received 9037 votes, the highest number of votes, Virginia Williams 7672 votes, the second highest number of votes, and the petitioner 7534 votes, or the third number of votes; and that unless the votes cast for all of the candidates for the two offices at the primary election in Barbour County are rejected and excluded from the total number of votes cast in all of the fifteen counties of the district, Hedrick and the defendant Virginia Williams, instead of Hedrick and the petitioner, have been elected as the delegates to the Democratic National Convention from the Second Congressional District.

The petitioner asserts that he did not know or entertain the belief or the opinion that his name was omitted from the official ballots for the primary election in Barbour County until he was informed on May 12, 1960, two days after the primary election, by the clerk of the county court of Barbour County, that he had not received any votes according to the returns from two precincts; and that on May 16, 1960, having concluded that his name had been omitted from the official ballots, his attorneys and the prosecuting attorney of Barbour County met with two members of the county court of Barbour County and at that time his attorneys orally requested The County Court of Barbour County and its members to reconvene as the board of canvassers to find and declare invalid all the votes cast in Barbour County at the primary election for the two offices of delegates from the Second Congressional District to the Democratic National Convention on the ground that his name had been omitted from the list of candidates for those offices on the official ballots for the primary election. On Tuesday evening, May 17, 1960, seven days after the holding of the primary election, the members of the county court, acting as the board of canvassers, held a meeting and at that time the petitioner, by his attorneys, advised the board that his name was omitted from the official ballots in Barbour County; that the names of all other candidates for the two offices of delegates from the Second Congressional District to the Democratic National Convention appeared upon the official ballots; and that the petitioner then demanded that no votes be counted that were cast in Barbour County for any candidate for delegate to the national convention from that congressional district for the reason that the choice of the voters could not be determined from such ballots because of the omission from them of the name of the petitioner. Upon consideration of the demand of the petitioner, as recited in its written order entered on May 17, 1960, the board refused to grant the demand of the petitioner for the stated reason that the board had completed its work and finally adjourned on May 13, 1960.

The principal grounds upon which the petitioner relies to sustain his contention that the ballots from which his name was omitted should be rejected and should not have been certified by the board of canvassers for any of the candidates for the two offices of delegates to the national convention are that the ballots do not satisfy the mandatory requirements of Section 3, Article 5, Chapter 3, and Section 31, Article 5, Chapter 3, Code, 1931. Section 3 provides in part that it shall be the duty of the board of ballot commissioners for each county to provide printed ballots for every election for public offices in which the voters, or any of the voters, within the county participate, and to cause to be printed on the appripriate ballot the name of every candidate whose name has been certified to or filed with the clerk of the circuit court of the county, and that ballots other than those caused to be printed by the respective boards of ballot commissioners, according to the provisions of Chapter 3, shall not be cast, received, or counted in any election. Section 31 also provides in part that if any ballot be found to contain more than the proper number of names for any office, such ballot shall not be counted as to such office, and that any ballot, or part of a ballot, from which it is impossible to determine the...