Dunlevy v. County Court Of Marshall Co..
| Decision Date | 24 March 1900 |
| Citation | 47 W.Va. 513 |
| Parties | Dunlevy v. County Court of Marshall Co. et al. |
| Court | West Virginia Supreme Court |
Under the present election law of this State, the duties of the board of canvassers in recounting the ballots are purely ministerial, and not judicial, and it is its legal duty to countall ballots or parts id' ballots where the intention of the voter appears from the face of the ballots, though not marked or erased in the plain manner directed in the statute, and to reject all ballots or parts of ballots where such intention does not appear from the face of the ballots. If, from the face of his ballot, the intention of the voter is apparent as to his choice of candidates for any office, his vote should be counted as to such office, although his intention as to other candidates for oilier offices be nonascertainable, and the ballot invalid as to them. (pp. 514-515.)
It is the ministerial duty of the board of canvassers to make a careful record of every ballot rejected by it, with the reasons therefor, and the identification of such ballot as a part of such record, (p. 518.)
While mandamus is the proper legal and efficacious remedy provided by statute for the purpose of compelling the election officers to discharge their duties in conformity with the law, when such officers, in violation of their ministerial duties, assume the exercise of judicial functions, certiorari may be resorted to for the purpose; of reviewing their erroneous rulings, although mandamus would furnish more speedy, less expensive, and more adequate relief, (p. 520).
Error to Circuit Court, Marshall County.
Action by J. W. Dunlevy against the county court of Marshall County and S. R. Davis. Judgment for plaintiff, and defendants bring error.
Affirmed.
J. B. McClure, for plaintiffs in error. J. Alex. Ewing, J. C. Simpson and C C. Newman, for defendant in error.
At the November election, 1898, J. W. Dunlevy and S. R. Davis were opposing candidates for the office of CQunty commissioner of the county of Marshall. The precinct returns showed that Dunlevy received two thousand and sixty-six votes and Davis one thousand nine hundred and twenty-five votes, thus electing* Dunlevy by a majority over Davis of one hundred and forty-one votes. Davis demanded of the board of canvassers a recount, which they proceeded to make, and, by rejecting numerous votes, they reduced Dunlevy's vote to one thousand eight hundred and one, and Davis' vote to one thousand eight hundred and four, thus giving Davis a majority of three. The canvassers failed to make a record of each vote rejected as required by statute, and refused to sign bills of exceptions to their rulings, until compelled to do so by mandamus. Dunlevy then applied to the circuit court for a certiorari, which was awarded and the court, on a hearing thereof, found that the board of canvassers had illegally refused to count a large number of ballots cast for Dunlevy, more than sufficient to change the result of the election, reversed the finding of the board, and remanded the case to them, with directions to reconvene, and include in their count the illegally rejected ballots, and declare the result of the election accordingly. From this order the board and S. R. Davis obtained from a judge of this Court a writ of error. The original ballots, which were before and acted upon by the circuit court, the plaintiffs in error have not seen fit to bring here, but they produce along with the record copies of the faces of such ballots for the inspection of this Court. The ballots are the primary record evidence of every election from which the precinct's returns are made up, and by which such returns must be sustained.or disproved. And when, on a recount, any of such ballots are rejected, it is the duty of the board ol canvassers to make a record thereof, showing* the reasons for such rejection, and clearly identifying such rejected ballots for future le- gal investigation; and the same rule applies to doubtful or objectionable ballots included in the recount by the board. If the record is properly made up, no bills of exceptions are necessary to make such ballots a part thereof, nor does the law contemplate such necessity, but the ballots, by the mere identification therein, become a part thereof from the fact that they are already the record evidence of the election. Section 34, chapter 3, Code, as amended in chapter 25, Acts 1893, relates to the proper preparation of ballots, and the manner in which they shall be marked to indicate the intention of the voter as to the various candidates to be voted for; being in this latter respect merely directory. It provides, among other things, that And in section 66, same chapter, it is provided that "any ballot or part of a ballot from which it is impossible to determine the elector's choice of candidates shall not be counted as to the candidate or candidates affected thereby." These provisions, construed together, show that it was the purpose of the legislature that the ballots were not to be received or rejected as a whole, but as to each office they were to be regarded and acted upon separately, so that, if the intention of the voter was apparent as to any of the candidates for any of the various offices voted for, his vote was to be counted for such office or candidate, although his intention as to all the other offices and candidates might be nonascertainable from the markings of his ballot; and his ballot as a whole was to be rejected only when there was nothing-thereon to indicate the voter's choice as to any of the candidates. Each office is thereby made separate and independent of all the others, and the intention of the voter as to one is no indication of his intention as to the others, but each must stand or fall on its own merits. It is, therefore, the legal duty of the board of canvassers, on recounting the ballots, to give effect to the separate intention of the voter as to each of the offices for which there are candidates, and count the vote in so far as it is valid, and reject it only in so far as it is invalid. The law seeks to secure to every elector the right to vote, and the board of canvassers can neither disfranchise him nor vote for him. If he loses his vote, it must be from his failure to indicate by his ballot his intentions as to any office. If he makes his intention appear, his vote must be counted. The board has neither the discretion to reject a legal nor to cast an illegal vote. They are bound by the ballots, and, as they'indicate, the votes must be counted as to each office separately. There were fifty-three bills of exceptions taken to the rulings of the board of canvassers, which might have been dispensed with had the board performed its duties, and kept its record legally. It is unnecessary to review them all, as it is plainly apparent that the board, without regard to the law, illegally changed the result of the election. The board, in rejecting numerous ballots, gave no heed to the intention of the voter as to the particular office about which the recount was being had, but seized on most any technical objection for the purpose of rejecting a ballot, as follows, to wit, a number ot ballots were rejected because the intention of the voter as to choice for congress was not indicated, although he plainly indicated his intention as to county...
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