Brown v. Carr, (No. 9973)

• Decision Date: 11 July 1947
• Docket Number: (No. 9973)
• Citation: 130 W.Va. 455
• Court: West Virginia Supreme Court
• Parties: W. A. Brown v. Paul J. Carr, et al.

130 W.Va. 455

W. A. Brown

v.Paul J. Carr, et al.

(No. 9973)

Supreme Court of Appeals of West Virginia.

Submitted July 2, 1947.

Decided July 11, 1947.

1. Elections

Under Code, 3-5-19, a voter desiring to vote for a person whose name does not appear on the ticket or ballot, may do so by substituting the name of such person for any name on the ballot, by writing in the name of the person for whom he desires to vote, with a black pencil, or by other means, in the proper place on the ballot, and making an "X" mark in the blank space at the left of the name so written; but the failure to make such cross mark will not invalidate the ballot. Rollyson v. Board, 113 W. Va. 167.

2. Elections

"If the voter marks more names than there are persons to be elected to an office, or if, for any reason, it is impossible to determine the voter's choice, for an office to be filled, the ballot shall not be counted for said office." Code, 3-5-19.

3. Elections

Where a ballot for a municipal election has been prepared, on which appear printed the names of the candidates of the democratic party for the offices to be filled in said election; and blank spaces provided for under the heading and emblem of the republican party, but the names of no republican candidates for such offices are printed therein; and in an election the name of a candidate for mayor is written in the republican ticket with a cross in the box before his name, and a cross is made in the box before the name of the democratic candidate for said office, the intention of the voter, as to whom he desires his ballot to be counted for, is not made clear, and such ballot should not be counted for either candidate for said office.

4. Elections

In a municipal election, the name of P. J. Carr was printed in the ballot as the democratic candidate for mayor, and on such ballot there was not printed the name of any candidate on the republican ticket for said office. In these circumstances, W. A. Brown became an aspirant for mayor, and was voted for on both the republican and democratic tickets, by writing in his name. Certain voters wrote in the name "Brown", and it appears that there were numerous persons by that name residing in the municipality in which the election was being conducted, and who were eligible to hold the office of mayor. Held: The ballots cast for "Brown" cannot be counted for W. A. Brown.

Original proceeding in mandamus by W. A. Brown against Paul J. Carr and others.

Writ denied.

Lovins, Judge, concurring. Harold B. Eagle, for relator.

H. E. Dillon, Jr., and Forest L. McNeer, for respondents.

Fox, President:

An election to select a mayor and four members of the council of the City of Hinton was held on June 10, 1947. The ticket was made up by the ballot commissioners, purportedly under the provisions of Code, 3-l-10a. The Democratic party organization nominated P. J. Carr as its candidate for mayor, and four candidates for members of the council. For some reason, the Republican organization did not nominate candidates, either for the office of mayor, or for membership on the city council. The ballot was printed on one sheet of paper, on the left side of which was the Democratic ticket, with the party emblem, and a circle immediately below said emblem, to enable voters to make a cross therein if they desired to vote a straight ticket, and on the right side of which was the Republican ticket with the party emblem and the same kind of circle, but it did not contain the printed name of any candidate. Therefore, when the election came on there was a Democratic ticket, with the printed names of five candidates appearing thereon, and a Republican ticket without the name of any candidate.

It appears from the record, that a short time before the date of the election, the relator W. A. Brown, became an active candidate for the office of mayor, and advertised his candidacy in the local newspaper, and by distribution of handbills throughout the City of Hinton. His campaign was conducted along the line of inducing voters to write his name in the Republican ticket, although, presumably, his campaign was to persuade people to write his name in the Democratic ticket as well. The significance of this campaign, and the publicity attached thereto, will appear later in this opinion.

After the polls had been closed on election day, the council of the City of Hinton, acting as a board of canvassers, canvassed the returns as they appeared from the certificates forwarded by the election officials from the eight precincts of the city. This canvass revealed that W. A. Brown, as a candidate for mayor, had received 699 votes, and that P. J. Carr had received, for the same office, 691 votes, showing that Brown had been elected by a majority of eight votes. The petition of relator alleges that this result was declared, but the answer of respondents controverts this allegation and avers that after this result was ascertained, and before the declaration of any result, Carr demanded a recount of the ballots cast in said election, and that upon such recount it was ascertained that Brown had received 689 votes, and Carr 694 votes, and thereupon the canvassing board declared P. J. Carr elected. We regard this apparent conflict as unimportant, and we will treat the action of the board of canvassers certify- ing the election of Carr, by a majority of five votes, as the final declaration of the result of said election, subject, of course, to the determination of the questions raised herein with respect to the ballots which are here involved.

There are twenty-four ballots as to which questions have been raised relative to the correctness of the action of the board of canvassers in respect to counting or refusing to count the same, and for whom other ballots were counted. We have carefully examined these ballots. Ballot No. 19 in precinct No. 9, referred to in relator's petition is not identified, and, for that reason, we must rely wholly on the allegation of the petition in respect thereto, and not denied by respondents' answer.

These contested ballots fall into ten separate classifications:

(1) Embraces nine ballots, consisting of those upon which there is a cross in the box before the name of P. J. Carr in the Democratic ticket, and also the name W. A. Brown written in the Republican ticket, and with a cross in the box before his name. These ballots were not counted either for Carr or for Brown.

(2) Six ballots, in which the name "Brown" is written in the Republican ticket, with a cross in the box before that name. These ballots were not counted for the relator, W. A. Brown.

(3) One ballot where the name of "W. A. Brown," appears thereon with a cross in the box before the name so written. This ballot was not counted for the relator, W. A. Brown.

(4) One ballot where the name of "W. H. Brown" is written, with a cross in the box before the name. This ballot was not counted for the relator, W. A. Brown.

(5) One ballot where there is an "X" in the circle below the party emblem on the Democratic ticket, but the name W. A. Brown is written in the Republican ticket with a cross in the box before his name. This ballot was not counted for either candidate.

(6) One ballot where there is a mark to the left and without the emblem in the Democratic ticket, with no mark of any kind in the Republican ticket; which was counted for Carr.

(7) One ballot, where in the Democratic ticket to the left, and without the box before the name of P. J. Carr there is a diagonal mark, and no mark of any kind in the Republican ticket. This ballot was counted for Carr over the objection of relator, W. A. Brown.

(8) One ballot where in the Democratic ticket there is a cross before the name of P. J. Carr, the name of W. A. Brown being written in the Republican ticket, with a cross in the box before it. The cross before the name of P. J. Carr, while it is clearly visible, bears the appearance of having been attempted to be obliterated by pencil marks. This ballot was not counted for either candidate.

(9) One ballot in which is written in the Republican ticket the name "Lawyer Brown" with a cross in the box before said name, and not counted for either W. A. Brown or P. J. Carr.

(10) Ballots numbers three and eleven in Precinct 9 are misdescribed in relator's petition. It is alleged that they were not counted for Brown, because there was an "X" before the name of Carr and an "X" before the name "W. A. Brown" in one instance, and before the name "Brown" in the other. In fact, both ballots show the name of "W. A. Brown" written in on the Republican ticket, and there is no mark of any kind on the Democratic ticket. The ballots also show that No. 3 was "counted" and No. 11 is marked "No exceptions." On this showing there can be no doubt that both ballots were properly counted for W. A. Brown.

We think this description of the ballots fairly presents the factual situation involved. The variations between the ballots attempted to be described, aside from the office of mayor, are not important. They differ in respect to other candidates voted for, and in respect to erasures, and in the markings within the circles below the party emblems, but the important and crucial facts, as they relate to the office of mayor, are, we think, correctly stated.

It is settled law in this State that, in selecting a person for any office, state, county or municipal, a voter may cast his ballot for a person whose name does not appear on the ballot as a candidate therefor, and Code, 3-5-19, specifically provides how he may do so. The decisions' of this Court uphold this right. State v. Canvassing Board, 85 W. Va. 440, 102 S. E. 104; Brannon v. Perkey, 127 W. Va. 103, 31 S. E. 2d 898. It is equally well settled that, in determining whether a ballot shall be counted, and, if so, for whom, depends on the intent of the voter, if his intention can be gleaned from the ballot being considered, or, in some special instances, from facts and circumstances' surrounding...