(dissenting):
At the late election, W. R. D. Dent and Humphrey F. Brohard were opposing candidates for the House of Delegates from the county of Taylor. At the time the returns of said election came in, W. J. Curry and J. K. Means werq *760the only commissioners of the county court of said county, and as such were ex officio the board of canvassers, whose duty it was to canvass the returns of said election. In pursuance of the duty imposed upon them by statute, they proceeded to count the vote, and entered the same upon their record, and ascertained that at said election said Dent received one thousand five hundred and twenty-six votes and said Brohard received one thousand six hundred and seven votes for said office, the majority in favor of said Brohard being- eig-hty-one votes; and thereupon said W. R. D. Dent demanded a recount of the ballots returned, which was proceeded with in the presence of counsel for-the respective parties and various witnesses,- and resulted in ascertaining- that said Dent received one thousand five hundred and fifty-eight votes and said Brohard .one thousand five hundred and twenty-one votes, finding- the majority in favor of Dent to be thirty-seven. When the recount was completed, J. K. Means left the room where the recount was carried on, and W. J. Curry proceeded to record the result on the election record, as required by statute, and sign the same, and also signed a separate certificate of the result of the election in said county for each of the offices to be filled, inclttding the House of Delégates. Said J. K. Means did not return to the place where said recount was made, and subequently declined to sign the record of the result which had been signed by said Curry. ■. Subsequently said Means claimed that he was not satisfied with the result of said recount, refused to sign the certificate of the result entered on the election record by said Curry-, and caused to be entered on said election record a declaration that said Dent received one thousandfive hundred and-twenty-six votes and Brohard one thousand six hundred and seven, as shown by the certificate of the returns from the various precincts, and signed a certificate of said Brohard’s election to said office; thus utterly ignoringand disregarding the result ascertained by the recount demanded by Dent. Thereupon said Dent applied to a judge of this Court for a mandamus nisi to compel said commissioners Curry and Means to declare the result as ascertained by said recount, and to sign certificates thereof, and dispose of them as required by statute. A mandania$ nisi having been awarded, *761said Means and Brohard filed returns to said writ, and said Dent demurred thereto. On the 31st day of • December, 1898, the case was heard, and the above opinion handed down, in which I cannot concur, for the following reasons:
First. When the legislature, in section 68, of chapter 3 of the Code, provided that “after canvassing the returns of the election, the board should upon the demand.of any candidate voted for at such election, open and'examine any one or more of the sealed packages of ballots and recount the-.same,” and that “when they had made their certificates and declared the result as thereafter provided, stating what shall be done with the sealed packages, poll books,” etc., and further provided that, “if the result of the election was not changed by such recount the costs and expenses should be- paid by the party at whose instance-the same was made,”it never intended that a member of the canvassing board should, after a recount was demanded and made, utterly ignore the result of such recount, and enter on the election record the result ascertained from the returns of the precinct officers before the recount-was demanded. Who would demand a recount and incur the risk of paying the costs of the same, if a member of the board could disregard the result, and-excuse himself by saying he was not satisfied therewith? While it is true that one of the envelopes or paper sacks in which the ballots were returned from the voting precinct to the clerk’s office was ripped in putting the ballots, in it, and it was not properly.sealed and indorsed, yet the sack was tied up with twine, and placed in the’ ballot box* and-in this way brought to the clerk’s office, and the ballots so - returned were counted- by-the board of canvassers, and the number of votes cast for>W. R. D. Dent and the number cast for H. F. Brohard were ascertained ; and after the recount had been demanded by Dent, and the votes recounted in presence of - J..K. Means, the defendent so far as appears without objection on his part, on the 17th day of December, -1898, said J. K. Means went into the clerk’s office of Taylor county court, and made an entry upon the election record that he, as a member of the board of canvassers.of Taylor County, charged w-ith the duty of canvassing, ascertaining, and declaring the result of the election held in said county on the 8th day *762of November, 1898, said that he declined to join with his associate, W. J. Curry, in certifying- the result of said election as recorded by said Curry alone on the 14th, 15th, and 16th of November, 1898, purporting to be the result of said election, for the reason that he (said Means) was' not satisfied that the result as above declared was correct. He,- however, proceeds to state that he concurs with the recount, except as to the record for theofficeof House of Delegates and county commissioner for the four-year term, then proceeds to declare the true result to be as ascertained on counting the ballots returned by the precinct commissioners, and proceeded to issue a certificate in accordance with the result ascertained before the recount was demanded, certifying that he had carefully and impartially examined the returns of said , election. It thus appears that the ballots were not in such bad condition as to prevent this officer from making a careful and impartial examination when they were first returned to the clerk’s office, and nothing appears to have prevented the same care-. ful and impartial examination on the recount, and yet Commissioner Means was not satisfied, nor does it appear that he asked to make any further examination of the ballots. We come now to the inquiry whether the duties of this commissioner with reference to counting and recounting, the vote were such as he could not be compelled to perform by mandamus. We find the law thus stated .in 13 Enc. PI. & Prac. p. 520: “While the writ of mandamus lies in many cases to courts and judicial officers to compel them to perform certain acts, or to take action in various classes of cases, in no case will the writ issue to control the exercise of discretion vested in such court or officers; ” and on page 528 of same volume it is said: “When the. writ of mandamus issues to ministerial officers, though they constitute part of the machinery of the courts, or to judicial officers to command acts which are ministerial, and involve no exercise of discretion, the writ may control such officers, and not only command them to perform the acts in question, but direct the manner of such performance and the decision which they are to render,” — citing numerous authorites. McCrary on Elections (page 198, s. 261), on this question, says: “It is well settled that the duties of *763canvassing- officers are purely ministerial, and extend only to the casting up of the votes, and awarding the cei'tificate to the person having the highest number. They have no judicial power,” — citing many authorities. The same author (p. 390, s. 385) says: ‘‘The courts will not, undertake to decide upon the right of a party to hold a'seat in the legislature, where, by the constitution, each house is made the judge of the election and qualification of its own members; but a court may, by mandamus, compel the proper certifying officers to discharge their duties, and arm the pai'ties elected to such legislative body with the credentials necessary to enable them to assert their rightsbefore the proper tribunal.” In the case of Brazie v. Commissioners, 25 W. Va. 220, Snyder, Judge, delivering the opinion of this Court, says: “The authorities uniformly-ag-ree that the precinct commissioners act judicially in passing upon the right of persons to vote. The county commissioners, then, as a mere ministerial body, have no power to review this judicial action, because to do so they must of necessity act judicially,” etc. Again, on page 222, he' says: “All .the acts which the commissioners can do under the statute must be based upon the returns. Their final-' act and determination must be such as appears from' and is shown by the returns from the several voting places of the county to be correct.- * * * They are authorized to enter no judgment, and their power is limited by the express, words of the statute which gives them being to the signing of a certificate containing the whole number of votes received by each person for each office, and therein' declaring the result, after having carefully and impartially examined the returns of the election. This certificate, thus signed, is not a judicial judgment, * * * but is a declaration of a conclusion limited and restricted by the letter of the statute.” In the case of Lewis v. Commissioners, 16 Kan. 107, Brewer, J., delivering the opinion of the court, said: “The view taken by the Iowa court seems to us the correct one. It is the duty of the canvassers to canvass all the returns, and they as truly fail to discharge ' this duty by canvassing only a part of the returns, and refusing to canvass the others, as by refusing to canvass any; and it is settled by abundant authority that where *764the board refuses to canvass any of the votes it may be compelled to do so by mandamus, and this though the board has adjourned sine die," — citing Hagerty v. Arnold, 13 Kan. 367, as a case in point. “The canvass is a ministerial act, and part performance is no more a discharge of the duty enjoined than no performance. The adjournment of the board does not deprive the court of the power to compel it to'act, any more than the adjournment of a term of the district court would prevent this court from compelling by mandamus the signing of a bill of exceptions by the judge of that court, which had been tendered to him before the adjournment. * * * As a g-eneral rule, when a duty is at the proper time asked to be done, and improperly refused to be done, the right to compel it to be done is fixed, and is not destroyed by the lapse of the time within which, in the first place, the duty ought to have been done.” .
.Now, applying this ruling to the case under consideration, it appears that W. R. D. Dent demanded a recount of the votes, which was proceeded with, both commissioners being present; Curry, one of the commissioners reading the ballots, and the clerk recording them, until all the ballots were thus canvassed, -and the vote recorded. It does not appear that Means objected at the time to the mode of ascertaining the result, or to the conduct of either of the parties engaged in making the recount, nor doe's it appear that he asked that the ballots from any of the precincts should be recanvassed. Curry remained until the record was made up bjr the clerk, and signed the same, and made out the certificates. Means, in his return, says that he refused to make a record of said recount, but does not state when he so refused, and to whom he gave notice of such refusal. Said Means, in his return, also says “that immediately after said Curry had the record of said partial recount, made as aforesaid, entered upon the record book in the clerk’s office of the said county, he absented himself from Taylor County.” But the record shows that Curry signed the proceedings of the 15th of November, including said record, and that on the 16th both Means and Curry were present, and Brohard and Armstrong tendered bills of exceptions; but the record nowhere shows that Means *765objected to the recount, or assigned any reason for not signing'the declaration of the result, although Curry was'present the day after he had signed it, and did not immediately absent himself, as the return states, as he signed the adjourning order on the 16th. Again, it is claimed that Means went out of office, and for that reason he could not be compelled to sign the declaration of the result of the recount. He does not appear to have been out of office on the 17th of December, 1898, when he proceeded to declare the result without reference to the recount, simply stating ' that he was not satisfied therewith, and issued a certificate of the result, found, as he says, by carefully and impartially examining the returns of the election. Now, as it appears to me that all that remained to be done by J. K. Means was to sign his name, this would have completed the recount, and certified the result. He says, in his return, that he suspected frauds, but he does not point them out; neither did he at the proper time ask an opportunity to do so. He simply absented himself, and declined to add his signature to the record, which was a personal duty imposed upon him by the statute. If a commissioner can, by saying he is not satisfied with the result, and resigning, prevent the result of an election from being declared, few candidates would receive certificates where the commissioners are of different politics. That this was a personal duty is apparent from the fact that his successor would know nothing about the proceedings in counting the vote, and, of course, could not certify.
In the case of State v. Shearer, 29 Neb. 477, (45 N. W. 784,) it was held that: “It is the duty of the county clerk to report all the fees of his office, and pay the excess over the amount to which he is entitled into the county treasury. This duty is personal to himself, and in case of his failure to perform his duty in that regard a mandamus may be issued, even after the expiration of his term of office, to compel the performance of such duty.” Now, the duties required by statute of this board of canvassers in making the returns of the fact as to the result of elections is not entirely dissimilar to the duties required of a sheriff. Under the statute, he is required to return the time and manner of serving process, and to subscribe his name to *766such return. The canvassers are required to ascertain the result of the election by counting-the ballots, and, when ascertained, they are to certify the result; but the performance of such duty on the párt of the sheriff is not limited to his term of office, as will be seen by reference to the case of Shenandoah Val. R. Co. v. Ashby's Trustees, 86 Va. 232, (9 S. E. 1003), in which case a sheriff was allowed to amend his return, thirteen years after judg-ment by default, to show that service was on a director of the defendant corporation in the county wherein he resided. Lewis, P., in delivering- the opinion of the’ court, said: “And it makes no difference that the officer by whom the return was made has g-one out of office, there being- no specific limitation of the time within which the power may be exercised,” — which case is cited with approval by Brannon, Judge, in the case of Hopkins v. Railroad Co., 42 W. Va. 537, (26 S. E. 187). This recount was demanded by Dent at-the proper time, and, as it seems to me, was improperly refused on the part of the defendant Means, and in my opinion the return filed by him in this case furnishes no sufficient excuse for his failure to perform the duties required of him by statute. I would, for these reasons, be in favor of awarding- the mandamus.
Dismissed.