Davis v. Brown

• Decision Date: 11 November 1899
• Citation: 34 S.E. 839,46 W.Va. 716
• Parties: DAVIS et al. v. BROWN.
• Court: West Virginia Supreme Court

34 S.E. 839

46 W.Va. 716

DAVIS et al. v. BROWN.

Supreme Court of Appeals of West Virginia.

November 11, 1899

Submitted September 9, 1899

Syllabus by the Court.

1. In a vote, at a general election for public officers, upon the relocation of a county seat, under chapter 31, Acts 1895 requiring for relocation "three-fifths of all the votes cast at said election upon the question." Such relocation is carried if it receive only three-fifths of all the votes cast on that one question, though they are less than three-fifths of the votes cast on some other question or for candidates for office.

2. Where an action or proceeding calls for pleadings in bar, all defenses must be presented before trial on the issues made up; and in informal proceedings without pleadings all defenses must be presented during the trial, before judgment and a party cannot reserve right to present others so as, in an appellate court, to have right upon reversal to demand that the case be remanded to the lower court to let in defenses not presented during the trial or hearing.

Error to circuit court, Randolph county; John Homer Holt, Judge.

Certiorari by John T. Davis and others against the county court of Randolph county, T. P. R. Brown, and others. From a judgment of the circuit court, Brown brings error. Affirmed.

Flick Westenhover & Noll, Strader & Strader, and E. A. Cunningham, for plaintiff in error.

C. Wood Dailey, for defendants in error.

BRANNON J.

This case involves the change of the county seat of Randolph county. It was once before in this court upon the question whether the returns of an election upon the question of the removal of the county seat from Beverly to Elkins should be canvassed by the board of canvassers or the county court. 32 S.E. 165, 45 W.Va. 827. This court decided that the county court should canvass the returns, and hear evidence of fraud and illegality in the election, and declare the result. When the county court proceeded to do this, it was found that at the general election held for public officers, as well as upon the question of relocation of the county seat, there were cast in favor of relocation at Elkins 2, 145 votes and 1,320 against it, and that 312 ballots were case which were not marked, or so marked as not to indicate the voters' choice; and the county court held that those 312, though not countable for or against either place competing for the county seat, must yet be counted as votes in ascertaining the aggregate vote, and that, as by their inclusion in that aggregate, Elkins had not received three-fifths, no removal of the county seat had been effected by the election. Then John T. Davis, W. T. Wilson, and C. H. Scott obtained from the circuit court of Randolph a writ of certiorari to review such decision of the county court, and the circuit court, being of opinion that said 312 ballots could not be considered in making up the aggregate vote, reversed the action of the county court. The representative of Beverly, T. P. R. Brown, then moved the circuit court to send the case back to the county court to hear evidence of fraud and illegality in the election, or retain the case in that court and hear such evidence; but the court refused to do so, and declared that a sufficient number of votes had been cast in favor of Elkins to relocate the county seat there, and declared that Elkins should be the county seat thereafter. From this judgment of the circuit court Brown has obtained the writ of error now in hand.

Must the 312 votes, though not countable for either Beverly or Elkins, be counted in fixing the aggregate? There are very many decisions bearing on this question, and they conflict. That great and late work, the American & English Encyclopædia of Law (2d Ed., Vol. 10, p. 754), thus states the law "When the law requires, for the election of an officer or the carrying of a measure, a vote of a majority, or a specified proportion of the legal or qualified voters, it is generally considered sufficient if the required proportion of the votes actually cast is in favor of the candidate or measure, and there is not necessity for any inquiry as to the actual number of voters in the district; for it is presumed that all legal electors voted, or, if they did not, that they acquiesced in the action of those who did. It would seem that an application of the same principle would lead to the conclusion that, where a measure is submitted to the voters at a general election, or at the same time as other measures, it should be considered carried if a majority, or the required proportion, of the votes actually cast for or against such measure are in the affirmative; and there are cases supporting this view. But the great weight of authority is otherwise, and supports the view that, in order to pass such a measure, it must have the actual affirmative vote of a majority, or the required proportion, of those who participate in the election." I think this statement correct, properly applied to the facts which it presupposes to exist. Where voters do not come to the polls at all, they need not be inquired after; they do not exist, no matter how many there may be. This is so though the law require the assent of a majority of the voters of a county or district to elect an officer or approve a measure. "All qualified voters who absent themselves from an election duly called are presumed to assent to the expressed will of the majority of those voting, unless the law providing for the election otherwise declares. Any other rule would be productive of the greatest inconvenience, and ought not to be adopted, unless the legislative will to that effect be clearly expressed." So says the opinion in Cass Co. v. Johnsson, 95 U.S. 369, 24 L.Ed. 416. Likewise, Carroll Co. v. Smith, 111 U.S. 556, 4 S.Ct. 539, 28 L.Ed. 517; McCrary, Elect. § 208; Louisville & N. R. Co. v. Davidson County Court, 62 Am.Dec. 424, and note 456. This is settled by many authorities. But that is not the exact question in this case. In this case 312 voters actually came to the polls and participated in the election by voting for congressman and other officers, but did not vote upon the county-seat question, and thus we know by the record of the election, without extrinsic evidence, that these voters exist. The ballots had on them, as required by chapter 31, Acts 1895, the words "For Relocation of County Seat at Elkins," and "Against Relocation of County Seat," and these voters either did not erase one and retain the other expression, or so marked their ballots touching this question as not with legal certainty to express a choice. The record does not show what number were defective for this cause, what number for that. Now, if our statute had said that a relocation should demand three-fifths of the "voters" or "qualified voters of the county," or "of the votes cast," or even "of the votes cast for the purpose," perhaps the weight of authority would say that those 312 silent votes must be included in making up the aggregate dividend to be fractioned to get the three-fifths, though, as the above quotation from the Encyclopædia says, the fact that absent voters are not counted would seem to lead to the conclusion that those present, but not voting on this question, should not be counted. Most respectable authorities hold that, in the case supposed, they should be counted: People v. Town of Berkeley (Cal.) 36 P. 591, 23 L.R.A. 838 (where the constitution required "a majority of electors voting at a general elections"); Belknap v. City of Louisville (Ky.) 36 S.W. 1118, 34 L.R.A. 256 (constitution requiring "two-thirds of the voters thereof [city] voting at an election to be held for that purpose"); State v. Foraker (Ohio) 23 N.E. 491, 6 L.R.A. 422 ("majority of electors voting at such election" on a constitutional amendment); People v. Wiant, 48 Ill. 263 ("majo rity of voters of a county" to remove a county seat); State v. Swift, 69 Ind. 505 ("majority of electors of the state"); State v. Winkelmeier, 35 Mo. 103 ("majority of legal voters of respective cities" to sell liquor on Sunday); Everett v. Smith, 22 Minn. 53 ("majority of electors of county" on a question). Equally respectable cases hold that they should not be counted: Walker v. Oswald, 68 Md. 146, 11 A. 711 (under statute requiring "a majority of the voters of said county" as to license); People v. Clute, 50 N.Y. 451 (Judge Folger saying: "Those of them who are absent from the polls in theory and practical results are assumed to assent to the action of those who go to the polls, and those who go to the polls and do not vote for any candidate are bound by the results of the action of those who do"); Oldknow v. Wainwright, 2 Burrows, 1017 (where the whole of the council were 25, and 21 present, only 9 voted for the candidate, and the balance protested against an election then, Lord Mansfield said, "Whenever electors are present, and don't vote, they virtually acquiesce in the election made by those who do"); Rushville Gas Co. v. City of Rushville (Ind. Sup.) 23 N.E. 72, 6 L.R.A. 315 (where half the members of town council refused to vote, all present, and a majority of a quorum vote for a measure); Booker v. Young, 12 Grat. 303 (same); Board v. Winkley, 29 Kan. 36 (act requiring "majority of the votes"; held that majority of those cast on the bounty question was sufficient, though not a majority of votes for district officers); State v. Langlie (N. D.) 67 N.W. 958, 32 L.R.A. 723 (act required for removal of county seat "two-thirds of votes polled"; held, that it did not take two-thirds of all polled for any purpose, but two-thirds of those cast on the particular question, to approve the removal). These cases are given for reference. They show that, where the law requires a majority or given portion of...