Hatfield v. Bd. Of Canvassers Of Mingo Co.. Noah Stepp

• Citation: 98 W.Va. 41
• Decision Date: 20 January 1925
• Docket Number: ( No. 5292-5293.)
• Court: West Virginia Supreme Court
• Parties: G-. W. Hatfield v. Board of Canvassers of Mingo Co. et al. Noah Stepp v. Board of Canvassers of Mingo County et al.

98 W.Va. 41

G-. W. Hatfield

v.Board of Canvassers of Mingo Co. et al.

Noah Stepp

v.Board of Canvassers of Mingo County et al.

(Nos. 5292-5293.)

Supreme Court of Appeals of West Virginia.

Submitted December 18, 1924.

Decided January 20, 1925.

1.Elections Mandamus Authority of Board of Canvassers Stated; Finding of Fact by Board of Election Canvassers not Disturbed on Mandamus, Unless Against Weight of Evidence or in Contradiction of Returns.

The county court sitting as a board of canvassers may summon before it the precinct election officers and hear and consider evidence from them respecting irregularities and discrepancies in the returns made by them and make such other orders as shall seem proper in order to procure correct returns and, ascertain the true result of the election held by them; and the canvassers' finding of fact from an inspection of the returns and consideration of proper evidence before them will not be disturbed by the appellate court in mandamus proceedings against them, unless against the weight of evidence or in contradiction of the returns. (p. 47).

(Elections, 20 C. J. § 258.)

2.Same-Failure of Voter to 'Strictly Observe Statutory Rules

Does Not Invalidate Ballot, if Intention Can Be Determined; Intention of Voter is Prime Consideration in Counting Ballot.

Failure of a voter to strictly observe the rules stated in Sec. 34, Chap. 3 of the Code for marking his ballot, does not necessarily make his ballot invalid, if his intention can be determined by an inspection of his ballot when cast.. No technical error which does not make it impossible to determine his choice shall be sufficient to reject his vote. The intention of the voter is the prime consideration in counting his ballot. (p. 50).

Elections, 20 C. J. § 184.)

3. Same Statute as to Indorsement of Ballots Held Inapplicable to Absent Voter's Ballot; Absent Voter's Ballot Not Void Because Not Indorsed by Poll Clerks in Their Own Hand- writing.

Construing Chap. 55, Acts 1921, the Absent Voters' Statute, and especially Sec. 10 thereof (Sec. 110, Chap. 3, Barnes' Code, 1923) with Sec. 66, Chap. 3, Code 1923 with respect to the provision in the latter that a ballot which is not endorsed on the back by the names of the poll clerks in their own handwriting is void and shall not be counted; it is held that the latter does not apply to the absent voter's ballot; and that the provision in said Sec. 10, Chap. 55 (Sec. 110, Chap. 3, Code) which directs that the poll clerks shall write their names on each absent voter's ballot before it is deposited in the ballot box is directory. Their failure to do so does not ipso facto render the ballot void.

(Elections, 20 C. J. § 180.)

(Note: Parenthetical references by Editors, C. J. Cyc. Not part of syllabi.)

Original proceedings by the State, on relation of G. W. Hatfield, for mandamus to be directed to the Board of Canvassers of Mingo County, and others, and by the State on relation of Noah Stepp for mandamus to be directed to Board of Canvassers of Mingo County, and others.

Writs denied.

Randolph Bias and James Damron, J. H. Meek and Goody- koontz, Scherr & Slaven, for relators

G. R. C. Wiles, Douglas W. Brown and Wade H. Bronson, for respondents.

Lively, President:

The two cases involve the same questions and will be disposed of together. Hatfield was Republican candidate for sheriff, and Stepp Republican candidate for assessor at the recent general election November 4, 1924, in the County of Mingo. Bishop, was the Democratic candidate for sheriff and Chafin democratic candidate for assessor. These were the sole candidates for the offices named.

The County Court sitting as a board of canvassers found from the face of the election returns that Bishop had received 5, 520 votes for sheriff and Hatfield had received 5, 500, a majority of 20 for Bishop; and that Chafin for assessor had received 5, 432 votes, and Stepp 5, 385, making a majority for Chafin of 47. A recount was had at the instance of Hatfield and Stepp, resulting in a finding of 5, 555 votes for Bishop, and 5, 526 votes for Hatfield, a majority of 29 for the former; and 5, 469 for Chafin and 5, 403 for Stepp, a majority of 66 for Chafin. Certificates of election were awarded to Bishop and Chafin. At Dingess precinct the returns as found by the board of canvassers gave Bishop 199 and Hatfield 112, a difference of 87 in favor of Bishop; and 198 for Chafin with 111 for Stepp, a majority for Chafin of 87. The recount of this precinct gave Bishop 196 and Hatfield 112, a majority of 84 for Bishop; and for Chafin 198 with 110 for Stepp, a majority of 88 for Chafin. Hatfield and Stepp moved the board to reject the ballots returned from Dingess precinct because when laid before the canvassers they were not properly sealed and preserved as required by law and had lost their value as primary evidence; and they moved that the returns also be rejected because unintelligible and worthless and did not show how many votes had been received by either of the candidates for the offices named. After hearing evidence from the election officials the board overruled the motions. Had the motions been sustained Hatfield would have had a majority on the recount of 55 and Stepp a majority of 22.

Hatfield and Stepp obtained this alternative writ of mandamus, and insist that the returns and ballots at Dingess precinct should be rejected for reasons above assigned; that the ballots at Glen Alum precinct should be rejected because they had not been preserved as required by law and that the certificate of the result at that precinct should be adopted as the best evidence. At that precinct Bishop gained 13 votes over the number given by the certificate of the precinct election officers and Hatfield gained two votes, making a net gain for Bishop of 11 votes. Chafin gained 12 votes and Stepp gained none, making a net gain for Chafin of 12 votes. They also charge that the ballots recounted at Magnolia or Blackberry precinct should be rejected because they had lost their value as primary evidence and the certificate of the officers should be taken in lieu thereof. At this precinct Bishop gained eight and Hatfield lost six votes a net gain for Bishop of 14. Chafin gained six and Stepp lost one a net gain of seven for Chafin.

At various precincts Hatfield challenges the correctness of the count of 19 ballots; 12 of which he claims should have been counted for him, and six of which he insists were improperly counted for Bishop, and one ("Gilbert No. 3") which is not described in his petition. Stepp challenges the correctness of the count of 17 ballots, 12 of which he claims should have been counted for him, and five of which he contends were improperly counted for Chafin.

It is obvious that if the entire vote at Dingess precinct is rejected (both ballots and returns), the relators should receive the certificates of election as the result of the recount, for, as above stated, the recount showed 5, 555 votes for Bishop, including the 196 votes at Dingess; and for Hatfield 5, 526, including the 112 votes cast for him at Dingess. For Chafin the total vote found was 5, 469, including 198 at Dingess; and for Stepp 5, 403, including 110 east for him at Dingess. Reducing these totals by the votes cast at Dingess for each of the contestants, we have for Bishop 5, 359 and for Hatfield 5, 414, a majority for Hatfield of 55; and for Stepp a majority of 22. The various votes in the different precincts, challenged by respondents as having been improperly counted for the relators will not overcome these majorities if respondents' contentions respecting these segregated votes be upheld. On the other hand, if Dingess precinct be retained and counted Bishop will have a majority over Hatfield of 29 as found by the board if the ballots at that precinct be counted, or if the certificates from that precinct be taken and the ballots discarded, he will have a majority of 32. Chafin's majority will not be materially changed. It is obvious that Stepp's case for relief depends upon whether the Dingess vote is counted, or rejected entirely, for the face of the returns at Glen Alum and Magnolia (or Blackberry) together with the votes at various precincts challenged by him as being incorrectly counted, will not overcome the 66 majority found against him. But not so with Hatfield. To take the returns at Glen Alum and Magnolia instead of the ballots he will gain 25 votes, leaving Bishop a majority of 7 if the returns are adopted, or a majority of 4 if the ballots are counted. The correctness of the counting of 19 votes challenged by him may overcome this majority of 7 if his contentions in that regard be upheld. The respondents, however, while vigorously asserting that Dingess precinct should not be totally discarded, claim that the face of the returns at Red Jacket, Double Lick, War Eagle and East Williamson precincts should be taken instead of the ballots for the very same reason alleged by the relators against the ballots at Dingess, Glen Alum and Magnolia precincts, namely, that they (the ballots) had not been preserved as required by law and had lost their status as primary evidence; and that at these four precincts first named, Hatfield made a net gain over the face of the returns of 8 votes. Respondents also challenge quite a number of votes in various precincts as incorrectly counted for Hatfield and Stepp and which they say should have been counted for respondents or for no one.

Should relator's motion to exclude from consideration of the board of canvassers the ballots and returns of Dingess precinct have been overruled? The ballots were not sealed nor preserved as required by law. Both relators and respondents Bishop and Chafin agree that they have lost their status as the best evidence of the result at that precinct, although the board of canvassers held otherwise and counted them, with a net result of a gain of 3 for Hatfield and a loss of 1 by Stepp. The ballots were placed in a ballot box and...