Maynard v. Hammond

• Decision Date: 21 December 1953
• Docket Number: No. 10638,10638
• Citation: 79 S.E.2d 295,139 W.Va. 230
• Court: West Virginia Supreme Court
• Parties: MAYNARD, v. HAMMOND.

Page 295

79 S.E.2d 295

139 W.Va. 230

MAYNARD, v. HAMMOND.

No. 10638.

Supreme Court of Appeals of West Virginia.

Submitted Nov. 17, 1953.

Decided Dec. 21, 1953.

Syllabus by the Court.

1. Without passing upon the question of whether oral testimony of persons, who voluntarily waive their right to secrecy of the ballot and testify as to how they voted, is admissible, avowals of persons not named in the notice of contest and affidavits of persons, even though named in the notice of contest, as to how they voted, are inadmissible in an election contest proceeding to vitiate an entire election precinct upon the ground of fraud.

2. Irregularities in the conduct of an election, even though they constitute a violation of the election laws, not shown to have affected its result, will not vitiate an election in the absence of a showing of fraud or misconduct preventing the free expression of the will of the voters.

3. A person appointed as an election commissioner in a certain precinct, who from the opening of the polls until the closing thereof, signs all ballots cast and performs all other duties of poll clerk, and signs the certificate of results as such, is the de jure poll clerk for that precinct, in the absence of a showing that he did not qualify as poll clerk as provided by statute, and in the absence of a showing of fraud or misconduct.

4. A decision of the Supreme Court of Appeals, by an evenly divided four man Court, becomes the law of that particular case by virtue of Article VIII, Section 4 of the West Virginia Constitution, and Code, 58-5-20.

5. The determination of an issue in an extraordinary proceeding in this Court constitutes the law of the case in a subsequent proceeding on writ of error or appeal wherein the real parties in interest and the issues are the same, and there has been nothing new injected by pleadings or evidence which calls for a different conclusion.

6. 'Upon a recount of election ballots a board of canvassers may not consider or determine questions of fraud, intimidation or illegality in an election, the eligibility of a candidate, the validity of the appointment of precinct election officers, the qualifications of such election officers, or irregularities discoverable in the course of a recount which can be established only by evidence extrinsic to the election returns.' State ex rel. Bumgardner v. Mills, 132 W.Va. 580, Pt. 4, Syl. .

7. Evidence of fraud or misconduct extrinsic to the election returns, though inadmissible before a board of canvassers on a recount, is properly cognizable in an election contest proceeding.

H. G. Williamson, Bronson & Bronson, John F. Bronson, Williamson, for plaintiff in error.

J. Brooks Lawson, Williamson, for defendant in error.

BROWNING, Judge.

On June 10, 1952, in accordance with the provisions of the special charter of the City of Williamson, the municipal election was held at which a mayor and four councilmen of each major political party were candidates. Two candidates of the republican party were elected to the council, and two candidates of the democratic party were elected to that body, but since that time, the contestant Maynard, democrat, and the contestee Hammond, republican, have engaged in litigation to determine who was elected to the office of mayor. The initial returns from the precincts on election day favored Hammond by eight votes. Two days later, on June 12, 1952, the mayor and council of the City of Williamson, sitting as a canvassing board, by authority vested in it by Chapter 136, Section 11, Acts of the Legislature, 1933, and ordinances, canvassed the votes and determined that Maynard had received 1,983 votes and Hammond 1,971 votes. Upon a recount of the votes cast at the election, by the mayor and members of the council sitting as a canvassing board, the board determined that Maynard had received 1,962 votes and Hammond 1,949 votes. The recount occurred on June 13, 16, 17 and 24, 1952. The board of canvassers employed an official reporter to take down and transcribe the proceedings before it upon the recount, and upon taking the necessary oath of office, her certificate states that she did proceed to perform her official duties as such reporter. Subsequent to the recount, the contestant took the oath of office as mayor of the City of Williamson, and assumed office on July 1, 1952.

On July 2, 1952, upon petition by the contestee, a rule in mandamus was granted by this Court against those persons compromising the canvassing board, and Melba Hatfield, the Clerk of the City of Williamson, commanding them to show cause why the board of canvassers should not reconvene and count certain ballots for Hammond allegedly wrongfully counted for Maynard on the recount; count for Hammond certain ballots not counted for either party; and to reject and not count for either party certain ballots allegedly wrongfully counted for Maynard. A motion was also made by counsel for Hammond that certain disputed ballots be photostated so that counsel might be furnished copies thereof for the purpose of preparing their briefs, prior to July 8, 1952, which was the return day of the rule. This Court granted the motion and directed its clerk to have the 48 disputed ballots photostated, which was done under circumstances which will be hereafter related.

This Court, on July 12, 1952, entered an order awarding the writ of mandamus prayed for, directing the board of canvassers to reconvene and issue a certificate of election to Hammond upon a finding that he had received in the election 1,963 votes, and Maynard 1,961 votes. On July 18, 1952, Hammond took office as mayor.

On July 28, 1952, contestant served notice upon the contestee that he would, before the mayor and city council of Williamson, sitting as a contest court, contest the election of the contestee upon the grounds that: Fraud and irregularities had occurred at Precinct No. 4, City Hall and that all votes cast at that precinct should be disregarded and not considered in determining the result of the election; and upon the further ground that 6 ballots, Ballot No. 2, Precinct No. 1, Ballot No. 3, Precinct No. 3, Ballot No. 4, Precinct No. 3, Ballot No. 3, Precinct No. 8, Ballot No. 8, Precinct No. 9 and Ballot No. 9, Precinct No. 9 had been fraudulently altered and forged subsequent to the recount, and that these ballots should be counted for Maynard in accordance with the original wishes of the voters who cast them.

Hammond, on August 6, 1952, served upon Maynard, and filed with the city clerk, a counter-notice which stated that the contestee would seek to have all of the votes cast at Precinct No. 6, High School, disregarded and not counted for either candidate upon the ground that the person appointed therein to act as commissioner had acted as poll clerk, signing each and every ballot as such, and that 4 absentee ballots cast at Precinct No. 3 for the contestee, which had been rejected and not counted, should be counted for him.

On August 22, 1952, the contestant filed with the contest court an amended notice of contest, which was not served upon the contestee, containing, in addition to the names of 147 persons alleged in his notice to have voted for the contestant at City Hall, Precinct No. 4, the following: 'Numerous other people voted for me at said election at said precinct which were not counted and included by the commissioner holding said election.'

The contest court, on August 26, 1952, sustained the contestee's demurrer to the contestant's notice, and dismissed the contest. However, on September 30, 1952, the Circuit Court of Mingo County reversed the action of the contest court, and remanded the contest for further proceedings.

On November 24, 1952, this Court refused the request of contestee for a writ of error to the ruling of the circuit court. The contest court proceeded to hear the contest upon its merits, and held numerous sessions for that purpose between December 27, 1952 and April 16, 1953.

On June 26, 1953, the contest court refused to disturb the vote at Precinct No. 4, and refused the relief sought by contestant with regard to the 6 allegedly forged ballots, and granted the relief sought by the contestee by finding that no valid votes were cast at Precinct No. 6 because the person appointed as election commissioner had signed all of the ballots cast at that precinct, and ordered that the 4 absentee ballots in dispute at Precinct No. 3 should be counted for Hammond. One of the votes cast at Precinct No. 6 was an absentee ballot for Maynard, and it was conceded that it should be properly counted for Maynard. It was not contended by either party in the contest proceeding that the remaining 42 votes which had been in dispute before this Court in State ex rel. Hammond v. Hatfield, Mayor, W.Va., 71 S.E.2d 807, should be counted otherwise than this Court had held that they should be in that case. As a result of the decision of the contest court, Hammond was declared to have received a total of 1,966 votes and Maynard 1,957 votes.

The contestant was granted an appeal by the Circuit Court of Mingo County, on June 30, 1953, from the decision of the contest court, and on July 13, 1953, Judge Charles W. Ferguson disqualified himself, and voluntarily withdrew from the case. Judge John W. Hereford of the Sixth Judicial Circuit, by arrangement, thereafter presided in the case. In a written memorandum opinion confirmed by subsequent order, Judge Hereford reversed the action of the contest court with regard to Precinct No. 6, holding that all votes cast there were valid, and as to the absentee ballots in Precinct No. 3, held that they could not be counted, inasmuch as the action of this Court in State ex rel. Hammond v. Hatfield, Mayor, supra, relative to them was res adjudicata. The Circuit Court of Mingo County affirmed the action of the contest court with regard to City Hall Precinct No. 4, and the 6 allegedly forged ballots. This action by that court p...