Eaton v. County Court of Cabell County

• Decision Date: 12 January 1955
• Docket Number: No. 10716,10716
• Citation: 85 S.E.2d 648,140 W.Va. 498
• Court: West Virginia Supreme Court
• Parties: Frank EATON, v. COUNTY COURT OF CABELL COUNTY et al.

Page 648

85 S.E.2d 648

140 W.Va. 498

Frank EATON, v. COUNTY COURT OF CABELL COUNTY et al.

No. 10716.

Supreme Court of Appeals of West Virginia.

Jan. 12, 1955.

Decided Feb. 1, 1955.

Syllabus by the Court.

1. The rule that mandamus is the proper remedy to control the actions of a board of canvassers in the conduct of a canvass or a recount, where the election officials fail to perform the ministerial or judicial duties imposed on them by statute, is applicable to an election which has been conducted with the use of voting machines.

2. Under Section 32 of Article 5-a, Chapter 58, Acts of the Legislature, Regular Session, 1949, '* * * the general laws applying to regular, special and primary elections shall apply to elections conducted with the use of voting machines', except as modified by Article 5-a, Chapter 58, Acts of the Legislature, Regular Session, 1949, and Article 5-a, Chapter 89, Acts of the Legislature, Regular Session, 1951, being the statutes which govern the use of voting machines in elections and the conduct of elections in which voting machines have been used.

3. Under subsection (4), Section 25, Article 5-a, Chapter 89, Acts of the Legislature, Regular Session, 1951, a recount of the votes cast at an election, in which voting machines have been used, shall not embrace a re-examination of the voting machines for the purpose of reascertaining the total number of votes registered on the voting machines for any candidate.

4. If any candidate demands a recount of the votes cast at an election, in which voting machines have been used, and the board of canvassers refuses to afford to the candidate a complete recount of the votes cast in all the precincts in which the election was had, this Court will award a writ of mandamus, directing the board of canvassers to reconvene and conduct a recount, which shall embrace all the election records, except a consideration of the tabulations recorded on the voting machines, and shall include an inspection and consideration of the signatures on the poll books and the registration cards.

Okey P. Keadle, L. A. Shawkey, Huntington, for relator.

Philip P. Gibson, Will H. Daniel, Robert H. Burford, Huntington, for respondents.

RILEY, Judge.

Invoking the original jurisdiction of this Court, the petitioner, Frank Eaton, the duly nominated candidate of the Republican Party for the office of Judge of the Domestic Relations Court of Cabell County, instituted this proceeding in mandamus against the County Court of Cabell County, West Virginia, a corporation, and James M. Donohoe, president of the county court, and Frank Heiner and C. V. Updyke, commissioners of the county court, acting as the Board of Canvassers of Cabell County, and William W. Roberts, the nominee of the Democratic Party for the office of Judge of the Domestic Relations Court of Cabell County, in which the petitioner seeks to require the County Court of Cabell County to reconvene as a board of canvassers and permit petitioner to inspect the precinct election records pertaining to all votes cast at the election held on November 2, 1954, in all of the precincts of Cabell County; and prays that such inspection be unhampered by the board of canvassers, except as to such regulations as it may make as to the time, place and circumstances; and that upon a hearing upon the rule, prayed for by the petitioner in his petition, a writ of mandamus be awarded requiring the board of canvassers to reconvene as such, and to permit an inspection of all precinct records and to recount the votes cast at the election in the light of such further motions and proceedings as the petitioner may desire to make as a result of such inspection.

The petition alleges that at the time provided by law the board of canvassers proceeded to canvass the votes cast at the election, and, at the conclusion of the tabulation, the board of canvassers disclosed that according to the results on the voting machines and the challenged ballots cast at the election, the petitioner received 17,906 votes, and the respondent, William W. Roberts, received 17,936 votes; and thereupon, while the board of canvassers was sitting on November 23, 1954, the petitioner filed a demand for a recount of all ballots cast at the election, and on the following day, that is November 24, 1954, the respondent, William W. Roberts, also filed a demand for a recount of all of such ballots. The petitioner and respondent Roberts, having filed bond, as required by the board of canvassers, the board entered an order granting the recounts, and setting them to begin on December 6, 1954.

The petition further alleges that on December 9, 1954, the day to which the recount was passed by agreement of the parties, the board of canvassers proceeded to make the recount. At the beginning of the recount the petitioner requested that all the returns of the election be placed before the board of canvassers, and that petitioner and his attorneys be permitted to examine all the returns, and in particular all the poll books of each of the precincts and the registration records for each of the precincts, for the purpose of securing information therefrom which might have a bearing on the validity of the votes cast at such election, which motion was overruled by the board of canvassers by a vote of two to one, the president of the board, James M. Donohoe, and commissioner C. V. Updyke voting to overrule the motion, and commissioner Heiner voting to sustain the motion. In announcing their vote on the motion, the majority members of the board of canvassers stated that it was their purpose to conduct the recount only as to challenged votes and to permit inspection of the poll books and precinct registration records and other returns of the election only as to persons who voted challenged ballots, and to refuse such examination and inspection with relation to any other voters in the county.

The petition further alleges that at the election held on November 2, 1954, there were only 178 challenged ballots in Cabell County, out of a vote of 35,842 votes, and that of 132 ('131') precincts in the county there were only fifty-five precincts in which there were no challenged votes. It is further alleged in the petition that approximately one-half of the recount, limited in scope as heretofore set forth, was completed on December 9, 1954, and that when the board of canvassers reconvened on the morning of December 10, 1954, the petitioner, by counsel, renewed his motion that he be permitted to examine the returns of the election, and invited the board of canvassers' attention to the decision of this Court in Brawley v. County Court of Kanawha County, 117 W.Va. 691, 187 S.E. 417, 106 A.L.R. 924, but the board of canvassers by the same divided vote, as was had on the original motion, overruled the motion and adhered to its former ruling.

The petition further alleges that after the board of canvassers had completed its examination and recount of the challenged ballots on the afternoon of December 10, 1954, the petitioner renewed his request as to examination of the election returns, and objected to the board of canvassers concluding its recount and issuing a certificate of result without an opportunity having been afforded to petitioner to examine the election records, as requested by him, which motion was overruled by the board of canvassers by the divided vote which had prevailed on the previous motions; and thereupon the board of canvassers prepared and entered an order, signed by the president of the board, James M. Donohoe, and commissioner C. V. Updyke, finding that the respondent had received 17,936 votes, and the petitioner 17,906 votes, which order directed that a certificate of result be issued to the respondent, William W. Roberts, showing that Roberts had been elected to the office of Judge of the Domestic Relations Court of Cabell County.

The petitioner further alleges in his petition that it is his intention to contest the election, and to file a notice of contest within the time required by law; but before he can prepare a proper notice of contest it is necessary that he have an opportunity to examine the poll books, precinct registration records, and other returns of the election, so that he can obtain information upon which he can base specifications concerning the votes which petitioner will contend were improperly and illegally counted upon the returns of the election, in so far as the returns were inspected by the board of canvassers during the recount. Further petitioner alleges that he is advised and informed, and upon such advice and information alleges, that on such contest or upon a recount which is properly conducted by the board of canvassers, the results of the election as now determined will be changed, and petitioner will be declared to be the duly elected Judge of the Domestic Relations Court of Cabell County. Finally, the petition alleges that petitioner is entitled to full, complete and unhampered inspection of all precinct election returns, subject to the right of the board of canvassers to exercise reasonable control thereof as to place, time and circumstances, and the refusal of the board of canvassers to grant such right of inspection is arbitrary, capricious and illegal.

The petition prays that a rule be issued, requiring the respondent members of the County Court of Cabell County to show cause why they should not be required to reconvene as a board of canvassers, and permit the inspection of the precinct election records pertaining to all votes cast at the election held on November 2, 1954, in all precincts of Cabell County, unhampered by the board of canvassers, except as to such regulations as the board may make relating to time, place and circumstances; and that upon a hearing upon the rule prayed for this Court award a writ of mandamus, requiring the board of canvassers to reconvene as such board of canvassers and permit such inspection of all the...