Hatfield v. Sheriff
| Decision Date | 20 April 1926 |
| Docket Number | (No. 5667.),(No. 5665.),(No. 5666.),(No. 5668.) |
| Citation | 101 W.Va. 425 |
| Court | West Virginia Supreme Court |
| Parties | Tennis Hatfield v. Emmet F. ScaggsContest for Office Sheriff, Logan County.Reversed.Ira P. Hager v. John Chafin.Contest for Office Prosecuting Attorney, Logan County.Affirmed.J. G. Hunter v. Elmo Gore.Contest for Office Assessor, Logan County.Reversed.A. D. Cook v. J. N. Schweitzer.Contest for Office Commissioner County Court, Logam County.Reversed.Page 425Ernest Thompson v. G. F. Gore,Contest for Office Justice of Peace, Logan County.(No. 5669.)Affirmed.I. M. Conley v. Simp Thompson.Contest for Office Justice of Peace, Logan County.(No. 5670.)Reversed.K. P. Nowlan v. J. W. BeckettContest for Member Board of Education, Logan County,Logan District.(No. 5671.)Affirmed. |
1. Elections Rule Causing Voters to Vote Open Ballots Held Unconstitutional (Const. Art. If, § 2).
A rule that causes voters to vote open ballots is opposed to Sec. 2, Art. 4, of the Constitution of West Virginia, which declares "the voter shall be left free to vote by either open, sealed or secret ballot, as he may elect." (p. 431.)
(Elections, 20 C. J. § 1G0 [Anno].)
2. Same Commissioners of Election at Precinct Are Unauthor-ized to Appoint Both Poll Clerks From One of Two Political Partus Casting Largest Number of Votes at Last Preceding General Election in State, if Representative of Other Party is Available as Poll Clerk (Code, c. 3, § 8).
Under Sec. 8, Ch. 3, Code, the Commissioners of election at a precinct are unauthorized to appoint both poll clerks from one of the two political parties which cast the largest number of votes at the last preceding general election in the state, if a representative of the other party is present and available for service as poll clerk. (p. 430.)
3. Same Where, Through Intimidation, or Because of Gross Inefficiency and Misconduct of Election Officials, Freedom of Sufferage is Interfered With, Rendering Result of Elec- Hon at Precinct Doubtful, Entire Poll of Such Precinct Will be Discarded; In Election Contest, Evidence of Intimidation of Voters Causing Election art Such Precinct to be Doubtful Held to Justify Discarding Entire Vote of Such Precinct.
When by intimidation, or because of gross inefficiency or misconduct by the election officials, the freedom of suffrage is interferred with to such an extent as to render doubtful the result of the election at a precinct, the entire poll of such precinct will be discarded. (p. 438.)
Error to Circuit Court, Logan County.
Election contests for county offices by Tennis Hatfield against Emmett F. Scaggs, by A. D. Cook against J. N. Schweitzer, by J. G. Hunter against Elmo Gore, by I. M. Conley against Simp Thompson, by Ira P. Hager against John Chafin, by Ernest Thompson against G. F. Gore, and by J. P. Nowlan against J. W. Beckett. Judgments for contestees, and contestants bring error.
Reversed in the first four cases, and affirmed in the others.
T. C. Townsend and M. F. Matheny, E. H. Butts, and England & Ritchie, for plaintiffs in error.
W. E. R. Byrne and W. R. Lilly and C. C. Chambers, for defendants in error.
The above styled cases are election contests growing out of the general election held in Logan County in 1924. At that election the contestants were the several candidates of the Republican party for the offices named and the contestees were the opposing candidates on the Democratic ticket. Certificates of election were awarded the Democratic candidates by the canvassing board of Logan County, and these contests followed such awards. The contestants allege fraud and gross irregularities in the conduct of the election, against the Democratic election officials and the representatives of the Democratic party. Evidence was taken on behalf of the contestants and the contestees, on which both the county court and the circuit court of Logan County found for the contestees. The cases are here on writs of error granted the contestants.
The charges of contestants are both general and special. The general charge is that the Democratic election officials throughout Logan County conspired to suppress a free expression of the voters and thus defraud the Republican candidates. In support of this charge contestants point to instances of fraud and of violations of the election laws at many of the precincts which were under the control of Democratic officials.
Considerable allowance must be made for those upon whom falls the burden of holding elections. Such officials frequently are not only unacquainted with election laws, but are unschooled in business and unfitted educationally to perform the duties which they assume. Mistakes and irregularities inevitably result. Consequently election statutes are usually held to be directory, unless otherwise declared by the statute. Irregularities are tolerated when they have not resulted in the admission of illegal votes, prevented the free expression of the electors, or cast uncertainty on the result of the election.
Many of the instances relied on in support of the general charge of fraud are merely such irregularities as occur at every election, and may be attributed to ignorance rather than to premeditation. For example, "by agreement", each poll clerk at Landville precinct took a part of the ballots, and signed the name of the other, as well as his own name, thereto. The ballots were thereby rendered illegal, and contestants were thus deprived of a heavy Republican majority at that precinct. The Democratic clerk at Landville had served as an election official before, though not as receiving clerk, and the Republican clerk was without experience. The contestants contend that because of his former service the Democratic clerk knew that the statute required each clerk to sign his own name on the ballots and that his agreement with the Republican clerk would cause the vote from that precinct to be rejected. This inference does not necessarily follow. The Democratic clerk testified that he had not re- ceived any instructions from any source to enter into this agreement. We know that similar mistakes occurred in many of the counties throughout the State at the last election. There is no direct proof of a general plan. Sporadic instances of misconduct are not alone sufficient to support a general charge of fraud.
Contestants specifically charge fraud in the conduct of the elections, and intimidation of the voters, at Shamrock, Striker and Mud. Fork precincts. We will consider the precincts in the order named.
Shamrock Precinct.
The notice of contest as to this precinct charged that the ballots were tampered with after they had been voted and counted. The evidence relates to numerous illegally cast ballots. Sec. 1 of Ch. 6, Code, requires the notice of contest to set forth the facts which cause the legality of the election to be questioned. The facts proven as to this precinct do not correspond to the facts alleged. The allegation and the proof must correspond in an election case, just as in other cases. The failure of contestees to move to quash, or to demur to the notice of contest is not a waiver of evidence which fails to tally with the allegations. Consequently, we cannot inquire into the legality of votes not attacked by the pleading. 20 C. J., par. 318, p. 237.
Striker Precinct.
At this precinct there were 204 votes cast of which 5 were straight Republican, 196 straight Democratic, and 3 slightly mixed. There was only one Republican election official, and he was relegated to the counting board. The evidence for contestants shows that J. IT. Pridemore and Cam Pridemore were the only Republican voters present when the polls were opened; that the Republican poll clerk appointed to represent the party failed to appear and that the Pridemores agreed upon J. H. Pridemore as Republican poll clerk; and that he was not permitted to serve by the Democratic Commissioners, who virtually drafted Martin White, a Democrat, to serve with the regular Democratic appointee as receiving clerk. The witnesses for contestees admit that the Pridemores were the only Republicans present when the polls opened, but deny the testimony of the Priclemores as to the offer of J. H. Pridemore to serve as receiving clerk.
Contestees point to the finding in their favor on the evidence by both the county court and the circuit court, and invoke the rule that this court will not reverse on disputed evidence in such case, unless the finding of the inferior courts is against the weight of evidence. Recognizing the force of this argument, we will base our decision as to this precinct on the testimony of the Democratic witnesses.
T. D. E. Stollings, a Democratic Commissioner, testified that when the vacancy caused by the failure of the Republican clerk to attend was to be filled, J. H. Pridemore seemed anxious to serve in some capacity; that the officials offered to accept him as a Republican clerk but he said he was not competent to fill the place as he could not write well enough; and that he asked permission to serve as commissioner, but there was no vacancy for him in that capacity.
Julius Dingess, another Democratic Commissioner, testifying in regard to J. H. Pridemore, said, We might explain here that Cam did serve as clerk of the counting...
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