CHARLESTON.

#### State *ex rel.*C. E. Mahan *v.*B. E. Claypool, President, S. J. Jasper and Eli J. Taylor, Commissioners of the County Court of Fayette County, ex-officio Board of Canvassers.

Submitted December 16, 1924.

Decided December 22, 1924.

*Elections*— Canvassing *Board Upon a Recount of Ballots Without Authority to Consider Evidence of Fraud Prior to Preparation of Certificate of Return by Election Commissioner.*

Upon a recount of the ballots cast at an election, for the purpose of determining the result thereof, the county court, as a canvassing board, is without authority to consider evidence of alleged fraud in the election prior to the preparation of the certificate of returns by the election commissioners.

*671Mandamus by State es rel. C. E. Maban, against B. E. Claypool, S. J. Jasper and Eli J. Taylor, members of tbe County Court oFFayette County, ex-officio Board of Canvassers.

*Writ awarded.*

*Dillon, Nuckolls*& *Mahan,*for relator.

*J. Q. Hutchinson*and *Fred 0. Blue,*for respondents.

Litz, Judge:

According to tbe certificate of returns from tbe last general election in Fayette county, tbe relator, C. E. Maban, as Democratic candidate for assessor of that county, was elected over his Republican opponent, H. S. Fields, by a majority of fifteen votes. A canvass of tbe returns by respondents increased bis lead to forty-one votes. A recount of tbe ballots, demanded by Fields, however, resulted in tbe board of canvassers declaring bis election by thirty-one votes, and issuing to him' a certificate of election for said office.

Exceptions were taken by relator to various rulings of tbe board during tbe recount, but we need consider only one. Tbe certificate of returns and recount of tbe ballots oast at Clifty precinct gave relator seventy-eight votes and: Fields twenty. Tbe entire vote of this precinct was excluded in tbe recount on the theory that fraud bad been practiced at the election prior to tbe preparation of the certificate of returns by tbe ballot commissioners. Tbe basis of tbe alleged fraud consists of affidavits of forty-six voters that each bad cast a straight Republican ballot, and of what are termed “peculiar markings” of some of the mixed ballots favoring Maban. It is claimed that on these ballots tbe marking at tbe head of tbe Republican ticket and that opposite tbe name of relator in tbe Democratic column seem to have been in different bandwriting or made by different pencils. There is no contention that tbe ballots were in any way tampered with after being counted and sealed by tbe election officers. In fact, as already indicated, tbe same number of votes was shown by tbe recount and tbe certificate of returns. This being tbe case, tbe canvassing board transcended its' jurisdic*672tion in attempting to exclude these ballots. It is vested with no authority to hear or consider evidence of fraud in the election. Such matters are cognizable only in contest proceedings. *Brazie*v. *Fayette County Commissioners,*25 W. Va. 213; *Brown*v. *Randolph County Court,*45 W. Va. 827, 32 S. E. 165; *Morgan*v. *Wetzel County Court,*54 W. Va., 372, 44 S. E. 182; *Daniel*v. *Simms,*49 W. Va. 554, 574; *Dunlevy*v. *County Court,*47 W. Va. 513, 35 S. E. 956, 958; *Hebb*v. *Clayton,*45 W. Va. 578, 32 S. E. 187; *Marcum*v. *Ballot Commissioners,*42 W. Va. 263, 26 S. E. 281; 26 Cyc. 275, and numerous cases cited; Cooley’s Cons. Lim. 7th Ed., pp. 934, 935; High’s Extr. Leg. Rem. 3d ed., Secs. 55, 56; 20 C. J., 200, 201, 202 and many cases cited.

We award the peremptory writ of mandamus prayed for, commanding the board of canvassers to reconvene and count the ballots of Clifty precinct in determining the result of the election for the office of assessor in Fayette County, giving to the relator seventy-eight and to H. S. Fields twenty votes. This will change the result and entitle the relator to a certificate of election.

*Writ awarded.*