The West Virginian. [volume] (Fairmont, W. Va.) 1914-1974, 1915-01-05
One Election
Contest For
Legislature
WRIT COUNTY MEN BOTH CLAIM
SAME SEAT IN HOUSE OF
DELEGATES.
ATTORNEY GENERAL GIVES Rul.
ING IN FAVOR OF
CONTESTANT.


CHARLESTON. W. Va, Jan. 81
So far as known there will be but
one contest over credentials for seat
in the house Of delegates when the
legislature conyenes January 10. This
contest comes up from Writ county,
and is between James L. Smith, Dem.
ocrat, and John A. Davis, Republi.
can, Smith having been declared
elected by the canvassing board OF
the county on recount OF the bal.
lots, by four votes.
Davis filed notice Nov rs that he
would contest the decision Of the
board. Then the question arose as
to whether his notice came within
the statutory limit, which requires
that any such notice must be made
within 81 days after the election. In
an opinion given yesterday on request
of counsel for Davis, Attorney Gen.
eral A. A. Lilly held that the notice
was legal, having been made within
q days from the time the ersult Of
the election was known.
Davis and Smith received tie vote
on the face Of the official returns. but
upon recount the board threw out
four OF the five votes that had been
counted for Davis and declared Smith
entitled to the seat. Now the contest
will be taken before the committee on
credentials in the house Of delegates
and from there to the floor of the
house.
Lilly Gives Opinion.
Discussing the point involved in
his opinion Attorney General Lilly
says:
"The question, IT seems to me, de.
ponds upon the construction placed
upon the word election as used in
section Of chapter 8 of the code.
which says that any person intend.
ing to contest the election of another
las delegate shall within 81 days after
the election give him notice thereof in
writing. 1t is generally conceded that
statutes providing for the contestins
of elections are to be literally con-
strued to the end that the will Of the
people in the choice Of public Off.
GERS may not be defeated by any
merely formal or technical objections.
Therefore, the word election in
the section above referred to should
be literally construed SO as to in
clude the entire proceedings, and not
to mean the day on which the cleo
ton was held. think the word cleo
ton as therein used involves every
element necessary to the complete
entertainment of the expression OF
the voters. embracing the entire range
from the deposit Of the ballot by the
voters up TO the final ascertainment
and certification of the result.
Similar Holdings.
"You will find a similar construc.
ton in the case Of state against Nc.
Coy, 43, All. 27o; see also the case
Of Norman against Thompson. 72 S.
W. CO; 96 Tex. $50; and also ex parte
Conley 10 S. W. 301 in which it was
held that an election means the act
of casting and receiving the ballot
from the voters, counting the. ballots,
and making returns thereon.
1.-THE house of delegates being the
Judge Of the elections, returns and
qualifications of its own members
would not likely hinge contest OF
this kind upon this technicality.
"As this opinion is beyond the pur-
view Of the duties of the attorney
general It cannot be considered as an
official opinion, but merely as a pri.
vate opinion for your own conven-
ience."