Duty v. Thompson , 79 W. Va. 415 ( 1916 )

POFEENBARGER, JUDGE:

On tbe eighth day after the County Court" of Wirt County, sitting as a board of canvassers, had completed the work of canvassing the returns of the election held in that county on the 7th day of November, 1916, declared the results thereof, entered .the same upon its records, issued certificates of election in accordance therewith and adjourned sine die, R. S. Blair, a candidate for the office of State Senator, voted for .in said county at said election, made a demand upon the members of said court for a recount of the ballots as to that office. They met and ordered that "such recount be granted and fixed Dec. 4, 1916, as the .day for commencement thereof. M. K. Duty, the opposing candidate for the same office, asks a writ of prohibition to restrain them from proceeding to recount the ballots, on the ground that the demand for such action came too late.

In view of a statute expressly conferring it, sec. 89, ch. 3, Code, the jurisdiction of this court by prohibition, in such case, is not questioned, if the demand for a recount was deferred too long.

The time limit on such a demand has not been judically ascertained or declared in this state. Our reports disclose nothing more than a dictum in Hebb v. Cayton, 45 W. Va., 578, to the effect that it is too late to. ask a recount after the result of the election has been entered upon the record. This opinion of Judge Bkannon, expressed in marlring the distinction between a case supposed and the one under consideration, accords with uniform decisions in all other jurisdictions. Not a single departure from the rule has been .cited or found. The numerous cases asserting' the proposition are cited by the text writers. 9 R. C. L., Title Elections, sec. 115; Cooley, Con, Lim., 7 Ed., p. 936; McCrary, Elec., secs. 267, 268, 269; Am. & Eng. Ency. L., 750; 15 Cyc., 383.

The character of the “canvass of the returns” required by the statute, differing, it is said, from that of the canvass in some other states, is relied upon as affording strong reason for departure from the general rule respecting the time limit upon demands for recounts. Though our canvass does not include the counting of the ballots, it is necessarily an entire and complete function in itself, final and decisive, in the absence of a recount or contest. Nor does omission of the count of votes from the faces of the ballots imply lack of such a count in the election procedure, considered as a whole, for it takes place at the election precincts, before the inspection and consideration of the returns by the board of canvassers. In the absence of a recount allowed by the statute, upon demand, this count is conclusive as to the prima facie right to the office. As a recount is not contemplated, except upon a demand therefor, the canvass may be completed without it, however close the result may be. Whether it is wise to omit a more careful and formal count than that made at the election precincts, is a legislative, not a judicial, question. The statute makes a clear distinction between The canvass and the recount. It gives the recount, upon demand therefor, after the canvass, but before declaration of the result. If not demanded, it does not take place, and, if it does occur, the result thereof goes into.the final result entered upon the record, wherefore, it logically should take place before the result is declared. It would be at variance with common knowledge, to say competing candidates do not know an election result is close, until after the returns have been canvassed. It is always known, and the law very properly assumes that, if a candidate desires a recount, he can make his demand therefor, before the result is officially declared and certificates issued. No form of demand having been prescribed, the candidate making the demand need not be personally present for the purpose, nor appear by attorney. After it has been made, the proceeding need not be so hastened or rushed as to deny a candidate having several recounts pending in different counties, reasonable and fair opportunity to protect his interests. Hence, the argument áb inconven-ienti is not well founded. A time limit is necessary, and to require a candidate to make his demand for a recount or waive it, before a declaration of the result, is not unreasonable.

The limit fixed by the authorities generally applies in states in which the canvass does not include the counting of the votes. In New York, the canvass was made, a few years ago, as it is here. People v. Canvassers, 126 N. Y., 392; People v. Canvassers, 129 N. Y., 469. After the board has completed its work in that state and adjourned, it is functus officio, and cannot be reconvened. People v. Green Co., 12 Barb., 217; People v. Reardon, 3 N. Y. Supp. 560; Hodley v. Mayor, 33 N. Y., 603.

The canvass is no doubt made in many other states as it is here, and this rule seems to apply everywhere.

Though the county court is ex officio a canvassing board, its function is not different from that of a board specially constituted for the purpose. It does not sit continuously as a canvassing board. When the result is legally and properly ascertained,- its powers as such board, for that election, cease. Judge BeaNNON’s statement in Alderson v. Commissioners, 32 W. Va., 454, to the effect that the body is continuous, must be considered in the light of its context. It is continuous only until the function is legally performed, and failure to recount the votes, in the absence of a demand, is not an omission of duty. Having omitted no duty and having completed its work, the board cannot reconvene and recount the votes, nor otherwise affect'the result shown by the record they have made. Cooley, Con. Lim. 784.

■ These principles and conclusions constrain us to award the writ prayed for.

Writ awarded.