Opinion
July 11, 1895.
1. When the result of an election has been ascertained from the returns, and has been signed by the commissioners, attested by the clerk, and annexed to an abstract of the votes cast, the duties of the board cease, and they cannot reconvene and reconsider the vote.
2. Under Code 1887, §§ 133-137, the board of commissioners must ascertain the result of an election from the face of the returns where they are in due form, and, if not in due form, summon the judges and clerks of election to amend the returns, and from the amended returns to ascertain the result.
3. The canvassing board has no power to throw out a precinct for irregularities of any sort.
Original action in mandamus by D.W. McKinney against George T. Peers, clerk of Appomattox county court, requiring the later to issue to the former a certificate of election as justice of the peace. Judgment for plaintiff.
J. Singleton Diggs, for petitioner.
John W. Daniel, Blackford, Horsley Blackford, and H.H. Flood, for respondent.
The court is of opinion that it is the duty of the commission of election, under section 133 of the Code, to meet at the clerk's office of the county or corporation in which they are appointed, on the second day (Sunday excepted) after any election held therein, and proceed to open the several returns which shall have been made at that office, and from the returns to ascertain the persons who have received the greatest number of votes for the several offices to be filled at the said election. The result so ascertained is to be reduced to writing, and signed by the commissioners present, or a majority of them, and attested by the clerk of the county, who is ex officio clerk of the board of commissioners of election by section 133. Section 134 provides how irregularities in returns may be corrected; section 135 declares that the person having the highest number of votes for any office shall be deemed to have been elected to such office, and shall receive the certificate of election; section 136 provides how the clerk shall make out abstracts of the votes cast for each officer chosen, when the commissioners have performed the duties imposed upon section 137 directs that the clerk shall make out, in pursuance of the determination of the commissioners, a certificate of election for each of the persons having the highest number of votes for county, corporation, or district office, and deliver the same to the person elected, upon his making application therefor.
In the case before us, it appears from the petition of McKinney, and the answer filed by Peers, the clerk, that the commissioners of election met as directed by section 133; that from the face of the returns the petitioner had received, as candidate for the office of justice of the peace in the Southside magisterial district of Appomattox county, 247 votes, being the greatest vote cast for any one for that office at that election. It appears that this result was ascertained in the mode prescribed by law; that it was reduced to writing, and signed by all of the commissioners present, to wit, O'Brien, Owen, Agee, and Worley, present and acting; that it was attested by the clerk, and annexed to the abstract of votes cast at the election, as required by section 136. All these things were done in the place, at the time, and in the manner prescribed by law. The commissioners then left the clerk's office, and presently thereafter returned and undertook to reconsider their action. They reconvened and adjourned over until the following Monday, upon which day they again assembled, and threw out the vote cast at Spout Spring precinct, and ascertained that J.T. Lee, J.R. Hill, and T.W. Smith, who had received, respectively, 121, 111, and 127 votes, were duly elected and entitled to the certificates of election in the room and stead of William A. Durham, D.W. McKinney, and C.W. Blockston, who had received respectively 193 votes, 247 votes, and 210 votes, as ascertained at the session of the board held upon the preceding Saturday; and then proceeded to issue certificates of election to the persons thus ascertained to have received the highest number of votes cast.
We are of opinion that, upon the facts, the law is plainly with the petitioner.
1. When the result of the election had been ascertained from the returns, and had been signed by the commissioners, and attested by the clerk, and had been annexed to the abstract of votes cast, the duties of the board ceased and determined.
2. That the duties of the board, under the law, are to ascertain the result from the face of the returns, where the returns are in due form, and to cause any irregularities in the making out and authentication of the returns to be corrected by those upon whom the law imposes that duty; and to this end they are required to summon the judges and clerks of election of the particular precinct at which the supposed irregularity occurred to appear at the courthouse upon a day named, not more than five days from the date of the summons, for the purpose of amending the returns, and upon the returns as amended they are required to complete a canvass of votes provided for in section 133.
3. That the board is clothed by law with no other function or duty, and the attempt to throw out a precinct was a plain unsurpation of authority upon its part. The certificate should have been awarded to the petitioner, leaving the opposing candidate to contest the election before the courts in the mode prescribed by law.
For these reasons, we think the writ of mandamus should issue as prayed for, commanding George T. Peers, clerk as aforesaid, to issue to the petitioner a certificate of his election as justice of the peace for the Southside magisterial district of Appomattox county.