Duncan v. County Court of Cabell County, 10543

• Citation: 138 W.Va. 106,75 S.E.2d 97
• Decision Date: 24 March 1953
• Docket Number: No. 10543,10543
• Court: Supreme Court of West Virginia
• Parties: DUNCAN, v. COUNTY COURT OF CABELL COUNTY et al.

Page 97

75 S.E.2d 97

138 W.Va. 106

DUNCAN, v. COUNTY COURT OF CABELL COUNTY et al.

No. 10543.

Supreme Court of Appeals of West Virginia.

Submitted Feb. 10, 1953.

Decided March 24, 1953.

Syllabus by the Court.

1. Ex parte affidavits of voters who voted in a certain precinct filed in a recount, are not competent to contradict the number of votes cast in such precinct as shown by the sole voting machine used therein.

2. The action of a board of canvassers in admitting incompetent proof to contradict the results of an election in a precinct, as disclosed by lawful returns and basing the ascertainment of result on such proof will be corrected on mandamus.

3. The time within which to give notice of a contest of an election does not commence to run until the true results of such election are ascertained.

Joe A. McVay, Huntington, for petitioner.

Philip P. Gibson, Buford C. Tynes, Huntington, for defendants.

LOVINS, Judge.

This original proceeding in mandamus was instituted by the relator Owen L. Duncan, the Republican nominee at the general election held November 4, 1952, for the office of councilman of the first ward of the City of Huntington, Cabell County, West Virginia, against the County Court of Cabell County, a corporation, James Brady, James M. Donohoe and Frank Heiner, Commissioners of the County Court of Cabell County, and as such, ex officio, the board of canvassers of Cabell County, West Virginia, and David Fox, Jr., the Democratic nominee for the above office of councilman.

The relator prays for a writ of mandamus to require the County Court to reconvene as a board of canvassers and to issue certificates showing that the relator received 2,441 votes and the defendant, Fox, received 2,417 votes at such general election, as disclosed by the returns made by the precinct election officers holding such election in the first ward. It is pertinent here to say that this proceeding only affects the election returns from precinct number 1, first ward, of the City of Huntington.

This proceeding was submitted for decision upon the petition of the relator, the joint and separate answers of the County Court of Cabell County, sitting as a board of canvassers, James Brady, James M. Donohoe and Frank Heiner, Commissioners of such Court and constituting ex officio the board of canvassers of Cabell County, the written motion of the defendant, David Fox, Jr. to dismiss the petition and the separate answer of said David Fox, Jr. Several documents were filed with the pleadings of the parties to this proceeding. No proof was filed as a part of the record.

By the pleadings, the following facts were shown: That the relator and the defendant Fox were the nominees of the Republican and Democratic parties respectively for the office of member of the city council for the first ward of the City of Huntington at the election held November 4, 1952, they having been nominated by their respective parties at the primary election, held in the month of May, 1952. A canvass of the election returns showed that the relator received 2,441 votes in the 14 precincts constituting such first ward and that the defendant Fox received 2,417 votes in those precincts.

The defendant Fox demanded a recount, filed a petition in which he alleged that the count of votes as disclosed by voting machine number 8400, used at precinct number 1, did not reflect the actual vote cast in such precinct. Fox attached to his petition for recount the joint affidavits of 40 persons allegedly voting in such precinct. The affidavits stated in substance that the affiants had voted the straight Democratic ticket by manipulating the master lever on the voting machine. An affidavit likewise filed by Fox, executed by the election officers who held said election, was to the effect that machine number 8400 was partially inoperative, in that the machine had failed to register any votes for the defendant Fox, out of the first 100 votes cast; that the one hundred and first voter attempted to vote for Fox and discovered that the machine did not show such vote in that no X appeared before Fox' name on the ballot or panel posted on the machine.

Thereupon, the precinct officers, having their attention drawn to such defect, called upon an assistant voting machine custodian to make an examination of such machine and suspended voting until such examination was made. The assistant voting machine custodian, upon making the examination, found that Fox' name had been inadvertently 'blocked out' at the time of the preparation of the machine for voting; that the assistant custodian corrected such defect and thereafter, the voting machine was continued in use until the election polls were closed.

It seems that the board of canvassers on the canvass of the election returns, considered the affidavits of the 40 voters, the precinct election officers and the assistant custodian of the voting machine on the canvass, but as to the exact details of that procedure, this record is not clear.

The 40 affidavits made by the voters, the affidavits of the precinct election officers and the assistant custodian of the voting machine, were attached to Fox' petition for recount.

Upon the recount and in accordance with the showing made by the affidavits, the canvassing board added 40 votes for Fox to the 90 votes shown by the counter of the voting machine, thereby giving the defendant Fox a total of 130 votes in precinct number 1 aforesaid. The board of canvassers, on the recount, thereupon ascertained and declared the results in the first ward of the City of Huntington to be as follows: That for the office of councilman of the first ward of the City of Huntington, the relator Duncan had received 2,441 votes and the defendant Fox received 2,457 votes for the office of councilman of the first ward of such city, and issued certificates accordingly.

This record is needlessly confused. It seems to us that the following questions are presented by the pleadings above mentioned: (1) Is mandamus a proper remedy to be invoked? (2) Was the action of the board of canvassers upon the recount, in issuing the certificates above mentioned, supported by the facts and authorized by law? (3) May a canvass, a recount and a contest be heard together? (4) May a defect in a voting machine be shown in a proper proceeding to correct returns?

Before discussing the controlling questions, we advert to the statutory provisions contained in Sections 16 and 20 of Chapter 161, Acts of the Legislature, Second Extraordinary Session, 1933.

Under the provisions above mentioned, the County Court of Cabell County, sitting as a board of canvassers, is the proper tribunal in this instance to canvass the municipal election and on proper demand conduct a recount of the votes cast in such election.

The defendant Fox' motion to dismiss the petition is based upon two propositions, (1) that the ralator has a plain, adequate and complete remedy at law by contest, and (2) that the final finding of fact, made by the board of canvassers, should not be disturbed in this proceeding. A partial answer to the contention of the defendant Fox will be found in the provisions of Code, 3-5-41, reading in part as follows: 'A mandamus shall lie from the supreme court of appeals, or any one of the judges thereof in vacation, returnable before said court, to compel any officer herein to do and perform legally any duty herein required of him.' Under the provisions of Code, 3-5-41, the scope of the writ is enlarged, and it is made applicable to all ministerial or judicial duties of election officers. Marquis v. Thompson, 109 W.Va. 504, 508, 155 S.E. 462. See Sanders v. Board, 79 W.Va. 303, 308, 90 S.E. 865; State ex rel. Fanning v. Mercer County Court, 129 W.Va. 584, 41 S.E.2d 855.

It was held in State ex rel. Baumgardner v. Mills, 132 W.Va. 580, 53 S.E.2d 416, 421, 'A finding of fact by a board of canvassers upon a recount of election ballots, based upon its inspection of the election returns and evidence relating to such returns introduced before the board, will not be disturbed in a proceeding in mandamus unless such finding is against the weight of the evidence or is in contradiction of the election returns.' The correction of returns of an election, when proper, should be based on evidence. Hatfield v. Board of Canvassers, 98 W.Va. 41, 126 S.E. 708.

The finding of the board of canvassers in the instant proceeding contradicts election returns as shown on the counter of voting machine number 8400, and, as will be hereinafter shown, the affidavits made by the voters in precinct number 1 do not rise to the dignity of evidence. We therefore hold that mandamus is the proper remedy to be invoked in the situation here shown, and the motion to dismiss this proceeding is accordingly overruled.

So far as we are able to ascertain, the canvassing board had nothing before it to support its factual conclusion, except the affidavits mentioned above.

In discussing the question of affidavits considered by the canvassing board in ascertaining the results of the election, we deem it proper to note that this court held in State ex rel. Baumgardner v. Mills, supra, that two certain affidavits relative to the signature of the poll clerk should have been presented to, and considered by the board. Citing in support of that, State ex rel. Johnson v. Board of Canvassers, 102 W.Va. 703, 708, 136 S.E. 772, 774, where it was said that 'numerous ex parte affidavits presented here on the question can not be considered by us.' In the instant proceeding, the affidavits were presented to the board as hereinabove stated, which calls for further inquiry into the status of an affidavit as evidence.

The question of whether voters are permitted to contradict the returns of an election where the voting is by paper ballots, has been considered in other jurisdictions. If the integrity of ballots has been preserved, in accordance with law, and no fraud or other illegality is shown...