Funkhouser v. Landfried
| Decision Date | 24 September 1942 |
| Docket Number | 9407. |
| Citation | 22 S.E.2d 353,124 W.Va. 654 |
| Parties | FUNKHOUSER v. LANDFRIED et al. |
| Court | West Virginia Supreme Court |
The powers of county canvassing board are purely statutory.
Syllabus by the Court
The powers of county canvassing board are purely statutory. A county canvassing board may consider poll books and voters' registration lists on recount of votes cast in precinct for candidates for nomination for United States Senate, as well as on original canvass of votes. Code 1931 3-4-19, 3-4-20, 3-5-33; Acts 1941, c. 44, art. 4, § 20-a.
All statutory regulations of voting must be subordinate to constitutional provision that citizens of state shall be entitled to vote at all elections in counties wherein they reside, with certain exceptions. Const. art. 4, § 1.
The legislature's constitutional authority to require registration of voters does not empower it to nullifyz or modify a citizen's constitutional right to vote. Const art. 4, § 1, 12. Voters' registration laws must be framed with great caution and construed liberally and favorably to right to vote. Const. art. 4, §§ 1, 12.
A voter's failure to perform an act prescribed by election statute does not deprive him of privilege of voting, unless statute plainly and clearly requires such result by express provision or necessary implication. Const. art. 4, § 1. A voter's failure to sign poll book does not deprive him of right to vote. Acts 1941, c. 44, art. 4, § 17.
While statutory requirement that persons offering to vote sign poll book should be rigorously enforced by election officials ballots of qualified voters failing to sign such book as result of innocence or mutual mistake of voters and such officials are not invalid for such reason alone, in absence of fraud or proof that votes were otherwise illegally cast. Acts 1941, c. 44, art. 4, § 17.
1. Upon a recount of ballots cast at a primary election had at the instance of a candidate for the nomination for the United States Senate, the canvassing board has jurisdiction, on the motion of such candidate, to consider and hear evidence relating to the names of voters appearing on the registration book and the poll book, so far as they cast light on any questioned ballots under consideration by the board.
2. The signing of the poll book by a person offering to vote at a primary election as prescribed by section 17, article 4 Chapter 44 of the Acts of the Legislature, 1941, is not a prerequisite to the right of such person to vote in such election.
3. Failure of all the voters of a precinct, in a primary election, through the common error of themselves and the election officials, to sign the poll book, will not justify the rejection of the votes of the precinct, in the absence of fraud, if such voters appear to have been otherwise qualified.
W. French Boggess, of Ripley, Eugene T. Hague, of Parkersburg, Phillip Hill, of Charleston, Randolph Bias, of Williamson, for petitioner.
C. E. Goodwin and Oliver D. Kessel, both of Ripley, and R. Dennis Steed, of Charleston, for respondent.
Raymond J. Funkhouser was awarded a rule by this Court requiring A. D. Landfried, J. C. Fisher and Frank Blackshire, as commissioners of the County Court of Jackson County and as such, ex officio members of the board of canvassers of said county, together with Chapman Revercomb and John L. Gillespie to show cause why a peremptory writ of mandamus should not issue as prayed for in the petition filed.
The members of the board of canvassers filed a joint demurrer in writing to this petition and a joint return and answer to the rule issued, as did also the respondent Revercomb. Mr. Gillespie made no appearance.
The petition charges in brief that the relator Funkhouser and the respondents Revercomb and Gillespie were rival candidates at the primary election held August 4th for the Republican nomination for the United States Senate; that after said primary election, at the relator's instance, recounts were demanded and have been held in twelve counties, and that like recounts are being held in at least six other counties; that on the day on which the petition was prepared the then tabulation of votes showed 47,330 for the relator and 47,473 for the respondent Revercomb, with Gillespie's vote smaller than either; that the relator is informed and believes that when all of the legal votes in the state for this nomination are finally determined and counted he will have a plurality thereof; but that if certain votes for this nomination cast in precinct No. 39 in Jackson County and charged by the relator to be illegal are not eliminated, this result may be changed adversely to him. The returns from this district show 24 votes cast for the relator and 44 for the respondent Revercomb. All are charged to be invalid for the reason that it is plainly apparent from a comparison of the signatures on the poll book and those upon the registration book that none of the voters signed the poll book as required by law, but that their names were signed thereto by a poll clerk. Other irregularitites are charged, but were expressly abandoned upon submission of the case. No fraud is charged against any voter or election official. The votes were not challenged. The failure of the voters to sign the poll book was discovered upon the recount had on the demand of the relator. A prompt motion was made by him to have the election officers summoned to give evidence regarding these irregularities, which motion was denied. The prayer is that the board of canvassers show cause why they should not be required to bring in these election officers for examination on the question of the legality of the signatures on the poll book and other alleged irregularities; that if it shall be found that all the names written thereon were written by one person, or not written by the voters, the board be required to reject all of said votes and to make a new declaration of the results of the primary election in Jackson County and a proper certificate thereof, omitting all the votes from precinct No. 39.
The question raised by demurrers on the issue to which the proceeding was finally narrowed down may be summarized as follows: (1) Whether the canvassing board on a recount had jurisdiction to hear and determine the question as to who signed the names on the poll book; and (2), if the board had such jurisdiction, whether the signing of the poll book by a voter is a prerequisite to his right to vote. The answers filed raised the same questions and denied no allegations of the petition material to the final issues involved, except that the names of the voters on the poll book were signed by one person. On the hearing here, the relator filed the poll book and registration book of precinct No. 39 for what he calls "occular demonstration" that the names on the poll book were actually signed by one person, and filed also the affidavit of the poll clerk, in which he states that he in fact did, through error, but innocently, sign all the names thereon. This clerk was offered for cross-examination by respondent, but no questions were asked.
The affidavit of the poll clerk and a comparison of the names on the poll book and those on the registration book leave no possible doubt that the names on the poll book were all written by the clerk and that no voter sighted the poll book before casting his ballot or since. Respondents do not contend that these facts are not clearly shown. Also, neither the pleadings nor the evidence show any taint of fraud on the part of either the election officials or the voters. For practical purposes nothing remains in controversy except the purely legal questions summarized from the demurrers.
We must first determine whether, as the statute now stands, on a recount of the ballots by the board of canvassers, a candidate can raise the questions here involved. It is said by the respondents that such matters can be litigated only in an election contest as distinguished from a recount. This question must be answered from the Code. The powers of the canvassing board are purely statutory, and the statute changes from time to time, hence old cases must be followed with caution.
We find no provision in the statute relating to primary elections governing recounts, except section 20-a, article 4, Chapter 44, Acts of 1941, which reads as follows: "The provisions of article five of this chapter, relating to the recount of votes in final elections, shall, to the extent that they are applicable, be operative in primary elections." This reference is to article 5 of chapter 3 of the Code, section 33 of which prescribes the duties of a canvassing board, and has this, and only this, provision relating to recounts: "After canvassing the returns of the election, the board shall, upon the demand of any candidate voted for at such election, open and examine any *** ballots, and recount the same", followed by certain instructions for disposing of the recounted ballots and making of certificates of the result thereof. Apparently, therefore, the only difference between an original canvass and a recount is that in the latter proceeding the actual ballots are inspected and recounted. It may be assumed, therefore, that on the recount the canvassing board may consider any matter that might have been considered upon the original canvass of the returns.
The duty of the canvassing board in a primary election is stated in Code, 3-4-20, as follows: "When any such election is held in a county or district, the county court sitting as a board of canvassers shall meet at the courthouse thereof on Friday next succeeding any primary election, and publicly carefully and impartially ascertain the result of such election in the county and district, and election...
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