61 W. Va. 693 | W. Va. | 1907
At the general election of November, 1904, H. Frank Goff and W. Bailey Young were opposing candidates, on the Democratic and Republican tickets, respectively, for the office of sheriff of Roane county. On the face of the returns, as certified by the election precinct officers, Goff appeared to have been elected, and, at the instance of Young, there was are-count of the vote as between them, during the progress of which large expenses were incurred by each party. Out of that re-count, arose a¿mandamus proceeding in this Court, by which Goff compelled the rejection, by the board of canvassers, of a certain precinct and the declaration of the result in his favor. See 56 W. Va. 675. In July, 1906, Goff instituted an action of assumpsit against Young, the object of which was to recover his expenses in and about said re-count, including his costs in the mandamus suit, and his counsel fees, both before the board of canvassers and in this Court. The items set forth in the bill of particulars and demanded in the declaration amount, in the aggregate, to $1133.25. The defendant demurred to the declaration and each count thereof, but the court overruled the demurrer as to the common counts, and sustained it as to the special count, setting forth particularly the nature of the demand, and the case went to the jury on the common counts only. After the plaintiff had introduced all his evidence, the court
Admitting that the basis for the right to recover costs must be found in the statute, the attorneys for the plaintiff in error say such right is found in the following clause of section 68 of chapter 3 of the Code, section 87 of the Code of 1906: “If the result of election is not changed by such re-count, the costs and expenses thereof shall be paid by the party at whose instance the same was made.” They very frankly admit also that the statute does not in express terms give to one of the parties to such re-count costs against the other, and they insist furthermore that it does not authorize a board of canvassers to render a judgment for costs. But they say the legislature intended a recovery of costs by the successful party, when the result of the election, as shown by the face of the returns, is not changed by the re-connt, and, not having provided how payment thereof may be enforced, has impliedly conferred upon such party the right to recover his costs and expenses by anj^ appropriate ordinary legal remedy, such as debt or assumpsit.
As we have concluded that the legislature did not intend a recovery of costs in such case by one party against the other, the question of remedy is immaterial. The re-count is not a contest. On the contrary, it is a mere ascertainment of the result shown by the ballots. It merely corrects mistakes made by the precinct election officers in counting the ballots and certifying the results. In the absence of a demand for a re-count the votes are not counted. The ballots are simply checked up and compared with the poll books and. the' returns, certified from the several precincts, are footed up,and the general result ascertained and declared. The demand for a re-count imposes upon the canvassing board the further duty of counting the votes as shown by the ballots. The statute provides that “they may, if deemed necessary, require the attendance of any of the commissioners,- poll clerks or other persons present at the election, to appear and testify respecting the same, and make such other orders as shall seem proper, to procure correct returns and ascertain the true result of the said election in their county.” Section 68,
For the reasons aforesaid, the judgment will be affirmed with costs and damages according to law.
Affirmed.