Ice v. Board of Canvassers

63 S.E. 331, 64 W. Va. 544, 1908 W. Va. LEXIS 78

Opinion

POEFENBARGER, PRESIDENT:

In the circuit court of Marion county, Wm. B. Ice, Jr. a candidate for member of the House of Delegates, obtained, from the circuit court of said county a peremptory writ of mandamus, compelling the board of canvassers of said county to count a certain ballot for him, which had been rejected. The board obtained a writ of error to the judgment. The petition did not show that the candidate’s election would be effected by the counting of the ballot for him. It said only that it would likely affect the result and again that it would change the result. A demurrer to the petition on the ground of prematureness in the application was overruled. The personal satisfaction to a candidate of knowing he received a certain number of votes or that a certain ballot was counted for him is not a substantial right. It is mere abstract right. For the vindication of such a right mcmdamus does not lie. 26 Cyc. 217; Merrill on Mand., section 49; Hall v. Staunton, 55 W. Va. 684, 686. The petition is insufficient to call for the decision of the question it seeks to raise.

For the error of the court below in overruling the demurrer the judgment is reversed, the demurrer sustained and the writ refused, all of which will be certified to the circuit court of Marion county.

Reversed.