Doll v. Bender.

• Decision Date: 22 March 1904
• Citation: 55 W.Va. 404
• Court: West Virginia Supreme Court
• Parties: Doll v. Bender.

55 W.Va. 404

Doll

v.Bender.

Supreme Court of Appeals of West Virginia.

Submitted February 25, 1904

Decided March 22, 1904.

Elections Ballots.

Two of four columns on a ballot sheet are defaced; the republican column is not defaced; the democratic is defaced bybroken lines as to all its offices and candidates except two, and their names are skipped by the lines and thus left on that ballot, but their names are written in the republican column for the same offices for which they stand in the democratic column. The republican ballot only ha, s been voted. The voter has not voted two ballots, (p. 406).

Elections Ballots.

Though a candidate's name is written in the space above the office on a ballot, it will be held a vote for him for the office below his name where the printed name for that office iserased and that above the written name is not erased, (p.407).

Elections Ballots.

The provision in code 1899, chapter 3, section 34, that where a name is substituted for one on a ballot it must be written in the space below the printed name, is directory. Though the' name is not there written, the vote will be counted for the written name for the office for which it is plainly intended, (p.408).

Ballot.

Distinguishing marks on a ballot will not cause its exclusion from the count, (p. 410).

Marked Ballot.

Though lines through the heading of a ballot or through the ballot are not used, still if other marks of cancellation are used, and they plainly indicate that the ballot has not been, voted, the ballot is effectually defaced, and can not be counted, (p. 411).

Marked Ballot.

Though defacing lines do not pass entirely through a ballot or its heading, yet if it is manifest that the voter did not intend to vote that ballot, the defacement is sufficient, (p. 411).

7. Makked Ballot.

Defacing marks to cancel a ballot must be within the ballot column or its heading". Words only above the heading or elsewhere outside the tallot, such as "I vote this ticket," do not select that ballot and cancel the others, (p. 412).

8. Marked Ballot.

A name is written in the space between two offices, and the printed names of the candidates are not erased. The ballot counts for the office above the written name and for that name, not for the candidate for the office below. It would be otherwise if the printed name of the candidate for the office below were erased, (p. 413).

9. Maeked Ballot.

A ballot from which some of the offices and names of candidates for them have been cut entirely out with a knife, instead of heing erased with a pen or pencil, is a good ballot for the offices and candidates left in it. The provision of the statute requiring erasure with pen or pencil is directory, (p. 414).

Error to Circuit Court, Berkeley County. Action by Frank W. Doll against I. L. Bender. Judgment for defendant and plaintiff brings error.

Affirmed.

Flick, Westenhaver & Noll, and Faulkner, Walker & Woods, for plaintiff in error.

Forrest K. Brown, H. H. Emmert, and A. G. Dayton, for defendant in error.

Brannon, Judge:

At the election in Berkley county in November, 1902, Frank W. Doll was the Democratic nominee for the clerkship of the county court and I. L. Bender the Republican nominee. The canvassing board found that Bender had been elected by a ma.-jority of four. Doll demanded a recount, and upon it the board found that Doll received 2, 135 votes and Bender 2, 146, giving Bender a majority of eleven. The contestation was as to 146 ballots, and they were withdrawn from the mass and made a part of the record. Doll carried the case to the circuit court by a writ of certiorari, and upon it that court found that Bender had received 2, 146 votes and Doll 2, 141. From the judgment of the circuit court declaring Bender elected Doll has sued out a writ of error in this Court.

The ballot sheets ha.ve four columns, Democratic, People's Anti-King ticket, Prohibition and Republican. We adhere tothe law stated in Morris v. Board, 49 W. Va. 260 and Darnel v. Simms Id. 554, that the voter must select and use one, and only one, ballot from those on the ballot sheet. We reject those violating this rule. In this connection take a specimen sheet. The people's and prohibition columns or ballots are cancelled by lines. No line in the republican column. Three broken, not continuous, lines cancel all names and offices on the democratic ballot, except for county commissioner and the candidate,. Parks, and school superintendent and the candidate, Shirley, the lines skipping these and leaving them untouched. In the republican column, in the space between the place assigned for prosecuting attorney and commissioner, the name of Parks is written and in the space between the place assigned for county clerk and county superintendent the name of Shirley is written. The printed candidates for commissioner and superintendent are erased. This sheet raises several questions. Does it violate the rule that a voter must use only one ballot? If the names of Parks and Shirley had not been written in the republican ballot, and for the same offices for which they stood on the Democratic ballot, it would be a case of two ballots. Though their names yet remained on the democratic ballot, yet they are written for the same offices on the republican. A voter cannot vote twice for the same person at the same election for the same place. By leaving the republican column untouched, we say that one was selected, and seeing the names of Parks and Shirley written in it we see that the voter intended to vote for them, and this is the plainer because he has left them on the democratic ticket; but their presence there is surplusage, performing no office. We see all the balance of that ballot erased. A voter uses two columns where one person is voted for on one ballot, another on another, or where the same person is voted for on one ballot for one office, and on another for an other office. Code 1899 chapter 3, section 34, says that a ballot can be defaced by erasing its party heading, or drawing lines clear through it, "or in any other way indicating that the same has not been voted," Considering that the democratic ballot is erased except as to Parks and Shirley, that their names are written in the republican ballot for the same offices, and the republican candidates erased, and that the latter ballot is without defacement, we conclude that the intent was to select it and discard the democratic column. The democratic ballot was cancelled.

A graver question arises on this ballot. Can it bo counted for Bender? Bender's name is printed for clerk, and in the space below it required by statute to be there for the purpose of allowing the voter to vote for some one other than Bendar by erasing his name and writing in the space another name, the voter has written "J. W. Shirley," making it read, "For clerk of the county court, I. L. Bender, J. W. Shirley." As the statute says that when this blank space has a name written in it, and the printed name is not erased, the ballot shall be counted for the written name, it may be said this is a vote, not for Bender for clerk but for Shirley. Inspection of the two ballots tells us that such was not the intent of the voter. He did not intend to vote for Shirley for clerk, because Shirley appears on the democratic ballot as democratic nominee for school superintendent, and the voter lot his name stand for that office in the democratic ballot, thus voting for him for that office, and wrote his name in the republican ballot just above the words "For county superintendent of schools," and erased the name of the republican nominee for that office. If he had not left Shirley's name for superintendent in the democratic column, it would not be so plain, but that indicates for what office for Shirley he desired to vote in the republican column. Placing the name of Shirley above the words "For county superintendent" does not change the sense; for the words, "J. W. Shirley for county superintendent" mean the same as "For county superintendent J. W. Shirley." And the fact that he dealt with Parks in the same wayconfirms this view. He intended to vote for him for county commissioner, and did not intend to vote for prosecuting attorney, though he put the name of Parks in the space below filename of the candidate of that office, instead of that below that of the candidate on the republican ballot for commissioner. He did not intend to vote for Parks or Shirley for offices for which they were not running. He erased the republican names for those offices, and left the republican candidates for prosecutor and county clerk, showing what offices he desired Parks and Shirley to fill. But it will be said that this view ignores the Code, chapter 3, section 34, saying that a voter desiring not to vote for any candidate on the ballot "may strike out the name so printed on said ballot and write in the blank space next following the name of the candidate or person for whom he so desires to vote. But if he fails to strike from said ballot the name printed thereon, the name written in said blank shall alone be counted." It is urged that in Morris v. Board, 49 W. Va 251, the opinion holds the statute, in general sense, mandatory, and particularly that the law requiring a voter who does not wish to vote for the printed candidate to write another name In the space below the printed name, is mandatory, so that the substituted name must be put in that space, and if it is not, it is no vote. It will be seen that the reference in that case to the space below the printed name was as an argument under the statute to show that one column must be selected and made the isole expression of the voter's will. The question whether, after one column has been selected and the others erased, the voter must write the substituted name in that space and nowhhere else was not up in that case. This case does present, in the ballot, now in hand, that question. In that case it is definitely stated that there are provisions...