Varney v. County Court of Mingo County

135 S.E. 179, 102 W. Va. 325, 1926 W. Va. LEXIS 125

• Court: West Virginia Supreme Court
• Decided: October 12, 1926
• Docket: 5840
• Status: Published

Opinion

Hatcher, Judge :

In the primary election on Aug. 3, 1926, Kiley Varney the petitioner, received a majority of 212 votes over his only opponent, S. J. Lovern, for the Democratic nomination for clerk of the county court of Mi-ngo county. The county court, sitting as canvassing board, declared'Varney not to be a legal nominee, and issued to Lovern a certificate of nomination. The county court, in answer to an alternative writ of mandamus, seeks' to justify its action on the ground that Varney filed no expense account within the time prescribed by Secs.-8-b, (6), and 8-b, (8), Ch. 5, Code.

This is not a sufficient reason for refusing to issue Var-ney a certificate of nomination. The duties of the county court as a canvassing board are detailed in Secs. 68, 69, 70, and 71, Ch. 3, Code. These duties are ministerial, not judicial. It is not within the province of a canvassing board to pass on the eligibility of a candidate. State v. Heatherly (recently decided by this court). Its duty is to ascertain carefully and impartially the true result of the election, and to issue certificates in accordance with that result. Brazie v. Commissioners, 25 W. Va. 213 (221).

The return does not state a legal defense to the alternative writ. The peremptory writ is awarded. .

Writ awarded.