58 W. Va. 88 | W. Va. | 1905
John L. Stafford and John A. Sheppard were candidates at the election 8th November, 1904, for the office of prosecuting attorney of Mingo county. A count by the canvassers of the returns of the election showed that Stafford had been elected and he was so declared. A recount was demanded by Sheppard. Pending the recount Stafford instituted a proceeding in the Supreme Court affecting such recount. And this Court awarded a mandmms directing the board of canvassers as to the manner and proceedure of such recount, commanding them to reconvene and recount the vote for said office under principles signified by this Court in its opinion, as will appear from a report of the case of Stafford v. Board of Canvassers, (49 S. E. 641,) 56 W. Va. 670. Pursuant to the mandate of the Supreme Court the canvassers met and proceeded with the recount, and on the 2nd day of February, 1905, the canvassers found and declared that Sheppard had been elected. On the 10th day of February, 1905, Stafford served a notice upon Sheppard that he would contest his election and file the notice with the county court at its next term. On the 24th day of February, the county court met in regular session, and Stafford presented to it the said notice of contest and asked that it. be filed and the proceeding-docketed in said county court, but the court refused to entertain or docket the notice; and later Stafford asked this Court to award a mandanms to compel the county court and its members to allow said notice of contest to be filed and to docket the contest proceeding and hear and determine the same.
One question in this case is this: After the notice of contest had been served a special term of the county court was held. Its call did not include this contested election case as
In support of the claim that the notice was presented to the county court too late it is further argued that the Code of 1899, chapter 6, section 3, contains the language, “The hearing may be continued from time to time by the court, if it be shown that justice and right require it, but not beyond three months from the date of election.” From this statute it is argued that more than three months had passed from
Another question in this case is this: Two of the members of the county court were voted for at the same election, and their election was contested on the same grounds involved in the contest between Stafford and Sheppard. When Stafford presented his notice of contest and asked that it be filed and docketed Sheppard objected. It is urged, in justification of the refusal of the court to entertain the case, that two of the commissioners composing the court were interested. We cannot yield to the contention that they were so related to the case that they could not act. It is a fixed rule that an interested judge may pass any order necessary to bring the cause before the tribunal, where nothing is decided, controlling the case — mere orders to advance the cause for final hearing. Findley v. Smith, 42 W. Va. 299. But it is said that these commissioners could not pass on the objection made to the filing of the notice and docketing the case, be
Another question in the case is this. The Code of 1899, chapter 6, section 1, says that any one contesting an election of a county officer ‘ ‘shall, within ten days after the result of the election is declared, give notice in writing of such intention.” It is said in this case that the first declaration of the election was made long before the notice was served, much more than ten days; that the notice could have been given after the first declaration; that the notice which was presented to the court having been served more than ten days after the first declaration of result was too late. When, under the mandate of this Court, the county court reconvened and recounted the vote and declared the result, that last declaration was the effective one. It superseded the first. The first was then as if it never had been made. If we accord this last declara
We therefore award a peremptory mandcwnvs to the county court requiring it to file the said notice of contest and docket the proceeding and proceed to hear and determine the same according to law.
It is hardly necessary to add that mcmdmius lies in such case. Richardson v. Farrar, 88 Va. 760; Morris ex parte, 11 Grat. 292; Roberts v. Paul, 50 W. Va. 528.
Mdndcwmts Awa/i'ded.