Gregory v. Hubard

| Va. | Sep 19, 1918

Per Curiam:

This is an application to compel the county clerk of Buckingham county to issue and deliver to E. D. Gregory a certificate of his election as mayor of the town of Dillwyn, in said county, and to B. H. Barnes and C. T. Apperson, certificates of election as members of the council of said town.

It appears that Barnes and Apperson have already qualified as members of the council of said town, and as the council is made the judge of the election, qualification and returns of its members by section 1030 of the Code, the object of the petition has been accomplished as to them, and the mandamus, so far as it affects them, will be refused.

As to E. D. Gregory the writ should be awarded. Section 1022 of the Code provides that the judges of election and the registrar appointed by the county board “shall also act as commissioners of election.” It is not necessary, under section 133 of the Code, that all of the commissioners of election should be present when the vote is canvassed. It is sufficient if three be present, and in this case three were present, and the tie vote for mayor was broken in the manner prescribed- by section 135 of the Code. No notice of the time and place of their meeting was required, but they were to meet in public. The meeting was held in the clerk’s office, a public place, and' it was none the less public because no one was present except the commissioners, the deputy clerk and- counsel for the persons elected. There is no allegation that the election was not fairly held, except the statement of the clerk that one person was allowed to register and vote bn the day of election (which might be a ground for contesting the election, but not for the clerk to refuse a certificate), and his further statement as to his refusal to permit the commissioners to canvass the returns and their subsequent canvass before his deputy while the clerk was sick. These were not good reasons for refusing the.certificate, and the clerk could not in this manner annul the election. The statute requiring the commissioners of election to canvass the returns on the second. day after the election is only directory as to the time of canvass, and if they let the time elapse without making the canvass, the mayor was not thereby deprived of the benefit of the election. They could thereafter canvass the returns, and if they failed to do so, could have been compelled to make'the canvass. Under section 137 of the Code, it was the plain duty of the clerk to “immediately make out” a certificate of election to the petitioner, E. D. Gregory, as mayor of the town of Dillwyn, and deliver the same to him, on his request therefor; and having failed and refused to do so, although thereto requested, the writ of mandamus prayed for by him should be awarded.

Writ awarded as to tone Petitioner and refused as to the others.