86 W. Va. 544 | W. Va. | 1920
Tbe relators, candidates on tbe Republican ticket at tbe primary election be,ld in Wyoming County on May 25, 1920, for tbe nomination for tbe offices of sheriff, prosecuting attorney and county assessor respectively, and on tbe face of tbe returns made by tbe election officers at tbe several precincts of said county duly nominated for said offices, seek by mandamus to compel respondents, members of tbe county court of said county, and ex officio tbe board of canvassers of said returns, to reconvene forthwith as such board of canvassers and issue to petitioners respectively certificates, in tbe case of petitioner Hiram Sizemore showing that on the face of the returns he received for tbe said office of sheriff eight hundred and nineteen (819) votes as against seven hundred and eighty-five (785) votes for bis only competitor, respondent A. E, Weaver; and in tbe case of said E. E. Shannon, showing that be received on tbe face of said returns for tbe office of prosecuting attorney for said county nine hundred and thirteen (913) votes as against six hundred and thirteen (613) votes cast for respondent J. Albert Toler, bis competitor for that office; and in the case of relator James A. Cooper, that he received on the face of the returns for tbe office of county assessor seven hundred and seventy-onei (771) votes, and that respondent G-. W. Graham, his competitor for said office, received only five hundred and seventy-seven (577) votes.
The several petitions made parts of the alternative writs and tbe returns of respondents show that after having first met on May 28, 1920, and after several adjournments, lastly on June 9, 1920, said board of canvassers did canvass tbe returns of said election, and as to tbe nominations for said offices did ascertain that on tbe face thereof the result in each instance was as claimed by relators; but that on said last mentioned day, after having so ascertained and recorded tbe result of said election, on demand solely of said respondent Weaver, candidate for the
The present writs challenge the authority and jurisdiction.of said canvassing board, on the demand of a candidate for a recount, to exclude the ballots cast at any precinct at such primary election, or to take into consideration in canvassing the vote any facts except such as appear on the face of the returns made to them by the election officers. Wherefore the sole question presented for decision is, were the affimation books required by section 13 of the Primary Election Law a part of the returns to which respondents could look in determining and declaring the result of said primary election? Wowhere in said Primary Election Law do we find any prescribed authority in the election officers holding such elections to exclude ballots because of the omission of voters to sign the affirmation books.
But an argument is presented, based on the particular provisions of section 14 of the Primary Election Law and our case of Baer v. Gore, 79 W. Va. 50, that the proceeding before the board of canvassers, as in Baer v. Gore, was converted into an actual contest, and that the rules applicable to contested elections are controlling. Certainly these rules could not be applied in the cases of Cooper and Shannon, who had no notice, were not parties to that proceeding, and whose rights and interests were disposed of without a day in court. In Baer v. Gore the proceedings were converted into a contest by the action of the parties, and what is there decided must be construed with reference to the, fact that that was a contested election. That fact is emphasized in the opinion. True, as argued, section 22 of the Primary Election Law provides for appeals by candidates from the action of the board of canvassers or of any political committee, to the circuit court and to this court, and says that: “All such contests shall be governed by the provisions of the code of West Virginia, so far as the same are applicable, as found in chapter six thereof.” But hów can it be argued that this provision, unless as in Baer v. Gore, the case is converted into a contest, enlarges the powers and duties of the
From all which, our conclusion is that peremptory writs should go in e,ach case according to the mandates of the original writs, and it will be so ordered. Writ awarded.