The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1908-11-20

VI SAAAo LAA4l@-Sl
issued as prayed for and made re.
turnable on the 18th day of Noyem.
Der, 1908. The members of the board
Of canvassers appeared and demurred
to the alternative writ, and the case is
now heard upon the demurrer.
For the purposes Of this motion 1t
must be taken as true that the pc.
titioner was a candidate as stated,
that the omissions and irregularities
lin regard to the poll books, tally
sneets and certificates exist as charg-
ed, and that the petitioner appeared
before the board of canvassers after
the said papers had been laid before
the board for examination and white
the board was in session. examining
the same. and made the motion as
stated and for the purposes stated
and the request or demand of the Pc
titioner was refused by the board Of
canvassers, and that board still re-
fuse.
Can the Board Of Canyassers be re.
quired by writ Of mandamus, to COM
ply with this demand of the petit.
toner?
These defendants. VINO are commits.
sioners of the County Court Of Ma,
rion, are by the law, made ex-oficio
"a board of canyassers of the county
and as such it Is their duty to ascer-
tain and declare the result Of the
elections held in their county. In the
performance of this duty the law pro.
vides when and where they shall
meet. 1t is made the duty of the off.
GERS in whose custody the ballots.
poll books, tally sheets and certifi-
Gates have been placed to lay the
same before the board of canvassers
for examination From these papers
the board must ascertain and de.
clare the result The canvassers may
take such steps as may be proper to
ascertain the genuineness OF these
Doll books, tally sdeets, and eertifi-
Gates. and to this end the law, Sec.
CS, Oh. 3 Of the Code. provides that
"they" (the board Ut canvassers) may,
az deemed necessary, require the at
tendance OF any of the commissioners.
poll clerks, or other persons present
at the election, to appear and testify
respecting the same, and make such
other orders as shall seem proper to
procure correct returns and ascertain
the true result of the SAID election.
The Supreme C5urt OF the State
has in number of cases beginning
with the case Of Brazie VS.. Commits,
sfoners, rs W, va. at page 22l, held
that under the provision of said sec.
ton 1t is the duty of tae commission.
ers to "frst determine that the bal
lots. poll books and certificates be.
fore them are genuine and that they
are certified in form and manner sub
stantially according to the require
ments of the statute, to correct and
have them put in form If they are not
so, and that tehy are in fact and IN
law the returns of the election. This
involves the exercise of a quis judi
ctal power"
1t is also we'll settled that in the
absence OF statute aid, nanlamns
does mot lie except in purely minis
terial matters. Our Supreme Court
has frequently said taat this is tie
true rule. 1t will not lie where the
action is one Of discretion judicial or
quasi judicial.
Then there can be no question I'M
der the decisions of our courts, that
unless we have some statute which
gives manlamus in matters under the
election laws more scope than at COM
mon making 1t applicable in jul
dicial or quasi judicial matters man.
damus will not lie in this case. But
1t is insisted that Sec. SO of Oh. 8 of
the Cole as smended by the Legisla-
ture in 1893, gives mandamus greater
scope in election matters t1an 1t has
at common law. Our Supreme Court
has so construed said section. That
court first explained the meaning OF
this sectiln IN the case OF Marcum vs..
Commissioners, AZ W. Va, 263. ana
says In syllabus 4, that Section SO.
chapter Of the Code, as re.amended
in chapter Is Acts 1893, in cases In,
yolving duties of ballot commission,
ers under said chapter. gives the writ
of mandamus more scope than 1t com.
mon law, rendering 1t d process ia
lcontrol then, In a, IN a z at.s II