Morris v. Boaed Of Canvassers Of City Of Charleston.
| Decision Date | 17 April 1901 |
| Citation | 49 W.Va. 251 |
| Court | West Virginia Supreme Court |
| Parties | Morris v. Boaed of Canvassers of CIty of Charleston. |
a voter must use only one of the ballots on the election ballot sheet, and the names of all candidates for whom he vote3 must be found on that one ballot. If some names are on one ballot, some on another, the voter does not vote for any candidate, (p. 254).
As to mistakes and irregularities in elections, a distinction exists between those made by the voter and those made by officers of election. In the former case such mistakes and irregularities may often destroy the ballot, while those of officers do not affect the election, if a fair election has been held. (p. 262).
Statutes mandatory and directory; more particularly election statutes, (p. 263).
The Constitution, in article IV, section 11, gives wide powers to the legislature to make all reasonable regulations and restrictions as to preparation of ballots and the conduct and returns of elections, (p. 264).
Application by Ham Morris., Jr., for writ of mandamus to board of canvassers of city of Charleston.
Refused.
W. E. E. Byrne., John H. Holt and Geo. E. Price, for petitioner.
Mollohan, McClintic & Mathews and Payne & Payne, for respondent.
Brannon, President:
At the city election in Charleston, March 11, 1901, Ham Morris and Will W. Wertz were competing nominated candidates for the office of recorder, and the returns showing a tie vote between them, Morris demanded a recount of the ballots, and while that recount was in progress before the city council as a canvassing board the board rejected certain ballots entirely from the recount, because all the candidates appearing to have been voted for were not in the same column on the ballot sheet, this being so as to these two candidates, and Morris applied to this Court for a writ of mandamus to compel the council to count such rejected ballots and all similar ones that had not been acted on as yet as to said office.
The question is, must the names of all the candidates for whom a voter intends to vote be found in one column of the ballot sheet, or may one name be in one column, another in another column, and still another in another column? Certainly the popular understanding and construction of our election statute first enacted in 1891, known as the "Australian Election Law," has been that all names of those candidates voted for must be found in one column. Such has been the uniform construction of it by the ballot commissioners acting under section 44 of that act, in their official instructions to voters previous to elections, posted at the polling places. Such has been the construction of it by the executive committees of the political parties. Is that construction wrong or right? We have concluded that it is right. Section 34, chapter 3, Code 1899, provides that the sheets to contain election ballots shall have separate columns, that is, printed ballots, side by side for the printed names of candidates, one column for each political party, containing the printed name of its nominated candidates. The head of each column is to be distinguished from the other column by having in bold type the name of the party to whose candidates it is assigned. The section provides that the names of all candidates of a given party shall go in the column assigned that party, and it says that no other name shall go in that column. So far the purpose to have distinct columns is clear. This direction must have some meaning, else it would not be so distinctly given. Another feature of section 34 is, that under the name of a candidate printed in the ballot shall be left a blank space half an inch wide, and in immediate connection the section says that "a voter desiring to erase the name of any candidate from the ballot he intends to vote, or to vote for any other candidate or person in his stead, may strike out the name so printed on the ballot, and write in the blank space next following the name of the candidate or person for whom he so desires to vote." Now, here we see that the legislature contemplated that a voter would and should select from the various columns of ballots on the sheet that column representing, either wholly or in the main, his preference, and having done this, the legislature contemplated that the ballot selected might not wholly suit the voter in its printed names; that he might want to erase a name there printed, and substitute one found elsewhere on the ballot sheet, in a ballot of some other party, or a person unknown to any ballot, and therefore the section gives him right to so erase a name from the ballot which he has selected, and write in it another name in such blank space. Thus, the statute in plain terms tells the voter that he must write that other name in that blank space. When the section tells the voter to write this new name in a particular spot, it is plain that it does not mean that he may write it in another spot, or leave it in another column. This goes far to manifest a specific legislative intent that one ballot on the sheet, and only one, shall be used by the voter, else why does the statute tell him to erase one name from "the ballot he intends to vote," meaning that particular selected ballot, and write in the name he prefers? This operation is confined to that particular ballot. The voter is not told to leave the preferred name on another ballot if printed there, or to write it on another ballot, and that this will do if his intent is plain but confines his change of name to the "ballot he intends to vote." If the design was, after such specific direction, to save the vote notwithstanding the departure from the rule prescribed by the statute on account of the plain intent of the voter, we might expect some provision to that end. There is no such provision. But this is not all that we see reflected in section 34. When the voter has so selected from all the ballots on the ballot sheet "the ballot he intends to vote," and has changed it to suit his will, he is commanded by the section to destroy or cancel in one or the other of two particular modes every other ballot on the sheet. This shows that it was the design that the voter use only one ballot, because he is told to select one, to change that one if he wishes, and change it in a particular way, and then destroy all others. The section then closes by saying that "if more than one of said ballots have nothing on them to indicate which of them was not so voted, then neither of them shall be counted;" that is to say, if the voter does not put marks of cancellation on all the ballots except the one he selects, his vote is lost. This clause is prohibitive and mandatory. It shows further that he is to use one ballot only; all others, are to be destroyed, else he is voiceless. The voter cannot be heard through a second ballot. This closing clause goes to show it and is alone conclusive. The ballots once on the sheet have perished, except the one selected, and are as non-existent as if never printed on the sheet. If two ballots do not have the defacing marks to indicate their rejection, if two are uncanceled, the voter has not voted. How, then, can there be two ballots used by him? For want of cancellation marks the statute says they shall not he counted. The statute says that certain signs of cancellation shall be used either by drawing one or more lines with pen and ink or indelible pencil, through the heading of the ticket or "from the top to the bottom thereof," that is the ballot. Now, how can the voter draw a line partly through a ballot, leaving a name or names on it intact, when the statute tells him to draw the line clear through every name? He cannot erase a ballot in any other mode than that pointed out by the statute. Other marks have no legal significance. Parvin v. Winberg, 130 Ind. 561; Whittam v. Zahorick, 91 la. 23. And if he uses a cross or lines at the head of the ticket, or more properly speaking the ballot, the legal effect is the same as the line clear through the ballot. The section does not provide for parts of different ballots to make up the voter's ballot. Section 34 specifically directs, as just shown, how the voter shall prepare his ballot, and then section 57 says that he shall take his ballot sheet when handed to him by a poll clerk and go into the booth, and "shall prepare his ballot as provided in section 34." Here is an emphatic command to follow section 34. Thus, it seems plain that the law-makers have directed that the voter shall use only one of all the ballots printed on the ballof sheet. As to this I have no trouble. The only question of difficulty is, whether this direction of the statute is merely directory or mandatory. Does disregard of it wholly reject the vote? If the voter selects the Republican ticket, but erases the name of Wertz, and does not write in the blank space the name of Morris for recorder, but leaves his name unerased on the Democratic ballot, and erases all other names on it, or vice versa, is the vote null? We have come to the conclusion that the statute is mandatory, because the mode of voting is definitely prescribed by the act, and it should be followed. To hold otherwise we must disregard the statute. We can answer this question only by the statute. In the well considered and notable case of Taylor and Marshall v. Beckham, 178 U. S. 577, the unquestionable law is stated thus: "Our system of elections was unknown to the common law and the whole subject is regulated by constitutions and statutes passed thereunder." As we have said the legislature intended only one ballot, and shall this Court repeal that statute in so grave a public matter as elections, when the legislature has been so minute and precise and detailed in this elaborate law of elections? It was intended as, and it is, a valuable...
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