80 W. Va. 586 | W. Va. | 1917
Writ of error to a judgment of the circuit court of Wyoming county denying to A. J. Mullens and five other petitioners, writs of certiorari to have the judgment and findings of the mayor and common council of the town of Mullens reviewed, in election contests before them, between the several petitioners and the person declared by said mayor and council, sitting as a canvassing board, to have been elected to the offices of mayor, recorder and councilman, respectively, of said town.
At the municipal election held on the 4th of January, 1917, A. J. Mullens, F. M. Vanover, W. V. Tate, Dr. Robert Shu-mate, W. H. Gross, and Levi Lusk were candidates; respectively, for the office of mayor, recorder and councilmen on the “Peoples Party Ticket,” and B. D. Dunman, S. D. Frantz, C. B. Mace, W. G. Lambert, D..B. Moss, F. S. Robertson and C. L. Whitlow were candidates, respectively, for said offices on the “Citizens Party Ticket,” and the last named persons were declared by the canvassing board to be elected. Thereupon the aforesaid petitioners, severally, served notices upon them that they would contest the election of the several incumbents. The matter averred in each notice is the same, except the names of the contestants and the designation of the particular office for which he was a candidate, and the questions arising thereon are identical; hence, all of them can be disposed of in one opinion.
The present incumbents were in office at the time of the election and were candidates for re-election to the same offices they then severally held, on the Citizens Party Ticket, and the contestants were, severally, candidates for the same offices on the Peoples Party Ticket. The notices are very
Bach notice was properly verified by the affidavit of the contestant, and the contestee thereby informed to appear before the council on the 23rd of January, 1917, if the said council should then be in session, and if not, then on the 30th of January.
The contestees appeared on the 30th of January, and filed written objections to the notices and moved to quash them, and to dismiss the several proceedings on the alleged ground that the notice was not sufficient in law: (1) Because they do not allege that the registrars and election officers were illegally appointed; (.2) that even if it be true, as alleged, the
The matter was beard at a regular meeting of the council on January 30, 1917, and the motion to quash the notices was sustained and the proceedings dismissed; and the contestant in each case objected and excepted. They'then, severally, petitioned the circuit court for writs of certiorari, and that court refused the relief, confirmed the rulings of the common council and dismissed the several petitions.
The sole question presented is, whether or not the notices are sufficient in law to entitle contestants to a hearing on the merits. We think they are. If the facts alleged are true, and on the motion to quash we must so regard them, it was certainly not a fairly and honestly conducted election. The notices charge serious and flagrant violations of law, showing sufficient grounds for an investigation on the merits of the several cases. They arc not denied. The principal objection urged against them is, that they do not make it appear that
Of course the averments relating to what was done prior to the election in the matter of appointing registrars, their failure to register all the voters and improperly registering as voters persons not qualified, to vote, are immaterial, as they do'not affect the result of the election, and, therefore, can not be considered in a contest. But treating these aver-ments as surplusage and eliminating them, the remaining charges are sufficient to make the notices good on demurrer and motion to quash.
Statutes providing for election contests should be liberally
The following authorities are also in point: State ex rel. Doerflinger v. Hillmantle, 31 Wis. 574; Berry v. Hull, (N. M.). 30 Pac. 936; and Payne’s Law of Elections, sec. 997.
The judgments in the several cases will be reversed and the causes remanded, with direction to the circuit court to award the writs of certiorari as prayed for in the several petitions, and for further proceedings to be had according to law.
Reversed and remanded.