Halstead v. IIader.
| Decision Date | 27 March 1886 |
| Citation | 27 W.Va. 806 |
| Parties | Halstead v. IIader. |
| Court | West Virginia Supreme Court |
A notice in a contested election case must set forth with reasonable certainty the facts on which the contest is founded; and they must be such that, if sustained by proof, they will make it the duty of the court, either to vacate the election or declare that another person than the contestee was duly elected, (p. 810)
A notice, which states, as the sole ground of complaint, that the county court commissioners failed and refused to count the votes at a specified precinct, which were duly and legally certified by the commissioners holding the election at said precinct, and that if said votes had been counted, the contestant would have beeu duly elected to the disputed office, is insufficient, and it should have been quashed by the county court, (p. 813.)
Such a notice could not be amended after the expiration of ten days from the time the result of the election had been declared, if it could be amended at all. (p. 817.)
E. W. Wilson and B. Wilson for plaintiff in error.
J. F. Brown and Kenna Chilton for defendant in error.
Writ of error to a judgment ot the circuit court of Nich-. olas county affirming the judgment ot the county court of said county, in a contested election case in which the plaintiff in error, John J. Halstead, was contestant, and the defendant in error, A. F. Rader, was contestee. The facts, so far as it is material to give them, are as follows: At the general election held October 14, 1884, the said Rader and Halstead were opposing candidates for the office of clerk of the circuit court of said county. When the commissioners met at the court house on the fifth day after the election to examine the returns and certify the result of the election, they found that the oath, required to be taken and certified by the commissioners under sec. 8, ch. 155, Acts 1882, had not been certified on the poll-books of the John Neal precinct of said county; thereupon they caused the commissioners, who conducted the election at that precinct to appear before them, and it was then proven that the said oath was not taken by A. J. Rippetoe, one of the persons who acted as commissioner at said precinct, but that the two other commissioners and the clerks did in 1act take said oath; and on account of the failure of said Rippetoe to take said oath the said court-house commissioners rejected and refused to count the votes cast at said precinct. Excluding said votes the commissioners found that Rader had received in the county for said office 737 votes and Halstead 707 votes, and they then declared Rader elected and gave him a certificate of his election to said office. Within ten days after the said result had been declared, Halstead caused a notice of contest to be served upon Rader. On December 15, 1884, the return-day of said notice, Halstead moved the county court to docket said motion, to which Rader objected, but the court overruled the objection and permitted the notice to be docketed; and then Rader moved to quash said notice and each specification thereof. Pending this motion Halstead moved the court for leave to file an amendment to his notice, to which Rader, the contestee, objected, but the court overruled the objection and the contestee excepted. The contestee then renewed his motion to quash the original notice and also moved to quash the amended notice. Both of said motions were overruled by the court and the contestee again excepted. All the proceedings had and the facts proven during the trial are certified in a bill of exceptions taken by the contestant, and it appears therefrom that if the votes cast at said John Neal precinct had been counted, Halstead, the contestant, would have received a majority over the contestee of four votes at said election in the whole county.
If the notice ot the contestant is insufficient and the motion of the contestee to quash it should have been sustained, then, regardless of the other questions presented by the record which are relied on by the plaintiff in error to reverse the judgment of the court below, this Court must affirm said judgment. The first question, therefore, to be considered by us, is the sufficiency or insufficiency of the contestant's notice.
Our Constitution declares: "The legislature shall prescribe the manner of conducting and making returns of elections, and of determining contested elections; and shall pass such laws as may be necessary and proper to prevent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the vote, ascertaining or declaring the result, or fraud in any manner upon the ballot." Sec. 11, Art. IV.
This provision is mandatory and plenary, and requires the legislature to prescribe all reasonable laws deemed necessary or proper for the prevention of fraud, securing the purity of elections and ascertaining the results. It imposes no restriction whatever upon the power of the legislature. It is a command and not a grant of power; because the power existed in the legislature independent of the Constitution. The Constitution is a limitation and not a grant of legislative powers. The only restrictions in our Constitution on this plenary power of the legislature are those contained in the first, second and twelfth sections of said fourth article. The first declares, that all the male citizens, with certain specified exceptions, shall be entitled to vote at all elections held in the counties in which they reside. The second, that the voting shall be by ballot either open or secret. And the twelfth section declares that," No citizen shall ever be denied or refused the right or privilege of voting at an election, because his name is not, or has not been, registered or listed as a qualified voter."
These are all the limitations or restrictions which the people, by the adoption of the Constitution, deemed it advisable or proper to impose on the legislative power. But not content to leave the exercise of the powers inherent in the legislature and not denied to it, at the discretion ot the legislature, the Constitution commands, that it shall pass all laws necessary and proper to prevent fraud and secure the purity of elections and returns. No law which is unreasonable can be necessary or proper, and therefore no such law can be regarded as authorized by the Constitution or the general powers of the legislature. But all laws, which are deemed not only necessary but proper for the purpose of fair and honest elections and ascertaining their results, the Constitution commands the legislature to pass. It is necessary and proper that every citizen having a constitional right to vote should have the power to do so without any improper restrictions. But it is equally important and just as necessary to the purity of elections, that persons not possessing that right should be excluded from the power to vote by reasonable regulations and safeguards to prevent them from doing so, or having their votes counted in ascertaining the result. It is impossible to do this latter without in some degree controlling or burdening the rights of those duly qualified to vote. It is likewise just as important to the qualified voters, that the person elected by their votes should be declared elected as it is that they should have the power to exercise their right to vote. In order, therefore, that the mandate ot the Constitution may be respected, it was the duty of the legislature to pass laws which would not only give the legal voter the power to vote and have his vote counted, but it was equally its duty to enact laws which would prevent illegal votes and exclude such votes in ascertaining the result of the election.
As the legislation regulating the right to vote and the conduct of elections is not directly involved in the enquiry now under consideration, that legislation need not be referred to here. It is in regard to the regulations concerning contested elections and ascertaining the results of elections, that the
present inquiry immediately relates.
In reference to the first of these, the statute provides: Sec. 1 chap. 6, amended Code.
It is evident from the language employed in this statute, that the notice must set forth the facts on which the contest is founded, and that the facts so set forth must be sufficient, if sustained by proof, to make it the duty of the court either to declare the contestant elected to the office or to vacate the election. The object of the notice is not only to give the contestee notice of the grounds of the contest, but it must contain some direct and precise allegation of fact, so as to inform the contestee ot the state of facts or matters he is required to meet. The mere general allegations that the contestee was not elected, and that the return declaring him so is untrue, false and fraudulent, afford no information to the contestee of the defence he may be required to make. The statute expressly requires, in the particular cases mentioned in it, that " the objections to each " vote disputed, and " the facts on which the objection is founded " shall be set forth. That such is the requirement of the statute, it seems to me there can be no question.
But this is not all. By the common law contests in regard to...
To continue reading
Request your trial
-
State Ex Rel Keith 0. Bumgardner v. Mills, (No. 10148)
...elections or in making returns and certifying results acted in accordance with the law until the contrary is shown. See also Halstead v. Rader, 27 W. Va. 806, in which this Court said: "Whatever is done by persons exercising a legal authority * * * is presumed to be done rightly." The burde......
-
Miller v. Burley
...89 S.E. 985, 989--900; Morris v. Board of Canvassers of City of Charleston, 49 W.Va. 251, pt. 4 syl., 38 S.E. 500; Halstead v. Rader, 27 W.Va. 806, 808--809. Obviously there was at common law no right to cast a 'write-in vote.' No such right is afforded by any provision of the Constitution ......
-
Slater v. Varney, 10382
...case constitutes the law in this jurisdiction on that question. Gorrell v. Bier, 15 W.Va. 311; Dryden v. Swinburne, 20 W.Va. 89; Halstead v. Rader, 27 W.Va. 806. See also concurring opinion of Judge Rose in State ex rel. Savage v. Robertson, 124 W.Va. 667, 23 S.E.2d 281. In Halstead v. Rade......
-
State Ex Rel. Bumqardner v. Mills, 10148.
...elections or in making returns and certifying results acted in accordance with the law until the contrary is shown. See also Halstead v. Rader, 27 W.Va. 806, in which this Court said: "Whatever is done by persons exercising a legal authority * * * is presumed to be done rightly." The burden......