11 S.E.2d 109 | W. Va. | 1940
Bruce T. Clayton invokes the original jurisdiction of this Court in mandamus, seeking to compel the Board of Canvassers of Putnam County to declare him the nominee of the democratic party for the office of prosecuting attorney of said county, on the ground that respondent, William J. Thompson, although having received a plurality of the votes cast for said nomination was not legally a candidate and not entitled to have counted for him any of the votes he received in the primary election held on the 14th of May, 1940.
The undisputed facts are as follows: The relator, Bruce T. Clayton, and J. E. Billups were candidates in the democratic primary election for the office of prosecuting attorney, having filed proper certificates of announcement. On April 14, 1940, under the circumstances hereinafter to be noted, a certificate of announcement for the same office was mailed and thereby treated as filed in the office of the Clerk of the Circuit Court of Putnam County by the respondent, William J. Thompson. This certificate was dated the 26th day of March, 1940, and purported to be acknowledged before W. E. Thompson, a notary public, and, accepting the said certificate as legal and proper, the name of Thompson was placed upon the ballot as a candidate for the office of prosecuting attorney, with Clayton and Billups. The result of the election was that Thompson received 1327 votes, the relator Clayton 1276 votes, and J. E. Billups approximately 600 votes, the final result being ascertained after a recount of the ballots, and a certificate of nomination, signed by the Clerk of the County Court of Putnam County, was, on June 18, 1940, issued to the said Thompson.
Notwithstanding the apparent regularity of Thompson's certificate of announcement, the facts are that on the 26th day of March, 1940, in Charleston, Thompson told his *503 sister, Ruth Mary Thompson, that he expected to be a candidate for the nomination for the office of prosecuting attorney in his County of Putnam, and then asked her to get a certificate of announcement, sign his name thereto, and hold the same until such time as he would direct it to be filed. At some time a blank certificate was obtained by Miss Thompson, and the name of William J. Thompson was signed thereto in Putnam County on the 14th day of April, 1940. On that occasion Miss Thompson made a telephone call to her brother, then a law student at the West Virginia University at Morgantown, West Virginia, and then in that city, which is in Monongalia County, and asked him if he desired to become a candidate. Being told that he did, he authorized her to sign his name to the announcement, which she did, and W. E. Thompson, the father of William J. Thompson, being present during this telephone conversation, then, over the telephone, took his son's acknowledgement to the signature on the announcement and certified the same as a notary public. All the parties to these conversations testify as to recognition of voice, and what then occurred is confirmed by subsequent statements of William J. Thompson. Instead of dating the certificate on the day of the conversations, it was dated on the 26th day of March, the date when authority to sign the name of William J. Thompson was first given to his sister. The certificate was mailed on the evening of April 14. Clayton contends that by reason of the failure to properly acknowledge the certificate of announcement Thompson never legally became a candidate for the office of prosecuting attorney, and that he, Clayton, receiving the next highest number of votes therefor, is entitled to the nomination.
Other grounds of objection to the candidacy of Thompson are that the certificate of announcement was not filed thirty days before the date of the primary election; and that at the time it was filed and at the time of the primary, Thompson was not entitled to practice law in the courts of this state, and was, therefore, ineligible to be a candidate for the office of prosecuting attorney. *504
In our view of the case, it is unnecessary to consider these objections in great detail. Suffice it to say that we think the filing of the certificate is controlled by Code,
It is obvious that unless the Board of Canvassers of Putnam County had jurisdiction to pass upon the questions of the validity of the announcement of Thompson and his eligibility to hold the office he sought, the peremptory writ of mandamus must be denied. This Court will not compel a public body to perform an act which it would not have jurisdiction to perform if it had voluntarily sought to do so. We think it the established rule in this state that the jurisdiction of a board of canvassers does not extend beyond the canvass and certification of the returns of the election. In State ex rel. Sizemore v.Hunter,
It is contended, however, that a board of canvassers has the right to refuse to count illegal votes, and there is authority for that proposition. It has been held, for example, that ballots not properly endorsed by both election clerks may be designated by boards of canvassers and the result ascertained after refusing to count such ballots. Kirkpatrick v. Deegans,
There is another element in the case which would deny the prayer of the relator that he be declared the nominee for the office of prosecuting attorney. In Dryden v. Swinburne,
This holding was reiterated in State ex rel. Depue v.Mathews,
For the reasons stated, the writ prayed for is refused.
Writ refused.