Daniel v. Simms
| Decision Date | 07 September 1901 |
| Citation | 39 S.E. 690,49 W.Va. 554 |
| Parties | DANIEL v. SIMMS et al. |
| Court | West Virginia Supreme Court |
Syllabus by the Court.
1. A ballot, prepared and perfected under the provisions of section 34 of chapter 3 of the Code, is one of the columns on the ballot sheet described in said section, so changed as to suit the wishes of the voter, and is a list in one of such columns of the names of all the persons for whom the voter desires to vote, with the designation of the office he desires each of them to fill; and every other column on the ballot sheet must be defaced in the manner prescribed in said section.
2. The provisions of said section, requiring the names of all persons for whom the voter desires to vote to be placed in one of such columns and all other columns on the sheet to be defaced, are mandatory; and if the voter, in the preparation of his ballot, violates said provisions, his vote cannot be counted, although his intention to vote for certain candidates may be clearly expressed upon the ballot sheet.
3. The courts are strongly inclined to uphold the legality of ballots not entirely conforming to the requirements of law if the intention of the voter can be ascertained; but statutes prescribing the form of ballots and kind of paper on which they are to be printed, and prohibiting marks, figures or devices thereon by which one can be distinguished from another, are designed to preserve the secrecy of the ballot and to prevent fraud, intimidation, or bribery; and they are generally held to be mandatory, and are always so held when such statutes provide that a ballot varying from such requirements shall not be counted.
4. Such regulations of the constitutional right of the citizen to vote are reasonable, and do not abridge or unduly impede the exercise of such right, although by disregarding them the voter disfranchises himself, provided such regulations are plain and may be easily observed.
5. Where the language of a statute is in any manner ambiguous or the meaning doubtful, resort may be had to the surrounding circumstances, the history of the times, and the defect or mischief which the statute was intended to remedy.
6. The construction given to a statute by those charged with the duty of executing it ought not to be overruled without cogent reasons.
7. The popular or received import of words furnishes the general rule for the interpretation of public laws, as well as of private and social transactions.
8. All former statutes on the same subject, whether repealed or unrepealed, may be considered in construing provisions that remain in force; and a repealed section which defines a term does not change the meaning of the term when found elsewhere in the original connection, and the section repealed may be referred to, to determine the meaning of such terms.
9. When words in a statute have acquired through judicial interpretation a well-understood legislative meaning, it is to be presumed they were used in that sense in a subsequent statute on the same subject, unless the contrary appears.
10. If a board of canvassers adjourn without having legally performed its duties under section 68 of chapter 3 of the Code, such board may be reconvened by writ of mandamus, under section 89 of said chapter, and compelled thereby to correct any errors it may have committed in attempting to perform such duties.
Error to circuit court, Fayette county; J. M. McWhorter, Judge.
Application by N. Daniel for a writ of mandamus to M. J. Simms and others. Writ granted, and defendants bring error. Affirmed.
ST. CLAIR, Walker & Summerfield and McWhorter & Lowenstein, for plaintiffs in error.
Mollohan, McClintic & Mathews and Payne & Hamilton, for defendant in error.
At the election held in Fayette county, November 6, 1900, N. Daniel was the candidate on the Republican ticket for the office of sheriff, and P. M. Snyder the candidate on the Democratic ticket for the same office. The face of the returns, as laid before the board of canvassers, showed that Daniel had received 4,116 votes and Snyder 4,396. Daniel demanded a recount. Such recount was had, and as the result thereof it was found that Daniel had received 4,137 votes and Snyder 4,450. During the recount Daniel objected to the counting for Snyder of more than 400 votes, and, his objections being overruled and the votes counted for Snyder, he objected, at the conclusion of the recount, to the granting of a certificate of election to Snyder, and his objection was overruled, the result declared, and said certificate granted. Then, upon the petition of Daniel, the judge of the circuit court of said county issued an alternative writ of mandamus, commanding the board of canvassers to reconvene and recount the ballots, and reject the ballots to the counting of which for Snyder Daniel had objected, and then to declare the result according to the facts. On the 27th day of December, 1900, two of the members of the board of canvassers and Snyder appeared and moved to quash the alternative writ. The petitioner then amended the petition, with leave of the court, by making Snyder a party thereto. This was objected to by the defendants, but their objection was overruled, and they then renewed their motion to quash the writ. On the 31st day of December, 1900, the cause came on for hearing, the motion to quash was overruled, the ballots in question, having been brought into court, were examined, and the court, being of opinion that they should not have been counted for Snyder, but should have been rejected and not counted at all, awarded a peremptory writ of mandamus, commanding the board of canvassers to reconvene as such and recount the original ballots, and absolutely reject and not count certain ballots as to the office of sheriff. There were 499 of these ballots, and the defendants have brought the case here on a writ of error.
It is conceded in the argument that enough of these ballots to change the result shown on the face of the returns are in the same condition as were those rejected under the mandate of this court in the case of Morris v. Board, 48 W.Va. --, 38 S.E. 500. The ballot sheet contained five ballots, columns, or tickets. The first or left-hand column was the Democratic ballot. Next to it was the Prohibition Party ballot. Next to this was the People's Party ballot. After that was the Social Democratic Party ballot. The last or right-hand columns was the Republican ballot. In each of these columns appeared--First, the names of candidates for presidential electors; second, candidates for state offices; third, candidates for representative in congress; fourth, candidates for state senator; fifth, candidates for county offices, under the designation of "County Ticket"; sixth, candidates for district offices. The rejected ballots were marked in the following manner: All the columns, except the Republican and Democratic, were completely defaced by lines drawn clear down through them from the top to the bottom. A line was drawn through the Democratic ballot from the top down to the words "County Ticket"; the balance of it remaining undefaced. Then a line was drawn from the words "County Ticket" on the Republican ballot down to the bottom, leaving the national, state, congressional, and senatorial tickets undefaced. Although it was clearly the intention of the persons depositing these ballot sheets to vote the Republican national, state, congressional, and senatorial tickets, and the Democratic county and district tickets, the votes so intended for Snyder were properly ordered by the circuit court to be rejected, for the reason that that intention is not expressed in the manner prescribed by law. The reasons assigned in the opinion in Morris v. Board, prepared by Judge Brannon, are sufficient, conclusive, and based upon the undoubted weight of authority. But in view of the thorough argument of this case, and of the criticism and argument found in Judge Dent's dissenting opinion in that case, further discussion of the principles involved is deemed appropriate. The solution of the question requires the construction of sections 34 and 66 of chapter 3 of the Code, which are as follows:
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