Park v. Landfried

• Decision Date: 13 February 1951
• Docket Number: No. CC776,CC776
• Citation: 63 S.E.2d 586,135 W.Va. 361
• Parties: PARK et al. v. LANDFRIED et al. Case
• Court: West Virginia Supreme Court

Page 586

63 S.E.2d 586

135 W.Va. 361

PARK et al. v. LANDFRIED et al.

Case No. CC776.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 11, 1951.

Decided Feb. 13, 1951.

Syllabus by the Court.

1. The votes in a special election, called by the board of education of a county, pursuant to Code, 11-8-16 and 17, should be canvassed by the members of the county court of that county, acting as a board of canvassers; and upon a recount being demanded by a citizen, voter or taxpayer of the county, though he be not a candidate for office, the members of the county court, as a board of canvassers, should conduct such recount.

2. In a special election called by the board of education of a county, pursuant to Code, 11-8-16 and 17, the members of the county court of the county in which the election is held, sitting as a board of canvassers, as well as on a recount, have the right and are under the duty to look both to the applications which accompanied the absentee voters' ballots and the registration lists, which are part of the election returns, to determine whether a voter in the election had the right to vote.

3. Mandamus is the proper remedy to crrect a recount and direct whether questioned ballots should be included or excluded in the results of a levy election.

4. In the appraisement of the votes cast at an election, it is unnecessary to isolate votes by challenge or otherwise, where, by proper and direct mathematical calculation, it can be ascertained by the canvassing board, either on the canvass or the recount, how a certain number of illegal ballots in a precinct had been cast.

Wm. Bruce Hoff, Eugene T. Hague, Orville H. Lardman, and William L. Jacobs, all of Parkersburg, for plaintiffs.

Oliver D. Kessel, W. F. Boggess, and P. E. O'Brien, all of Ripley, for defendants.

RILEY, Judge.

The relators, R. K. Park, B. M. Chambers, Ray E. Ritchie, C. E. Baker, W. J. Purdy, and Paul Cox, citizens and taxpayers of Jackson County, West Virginia, brought this proceeding in mandamus in the Circuit Court of Jackson County to compel A. D. Landfried, N. F. McBride and J. W. Sayre, Commissioners of the County Court of Jackson County, West Virginia, and as such ex officio the board of canvassers of elections held in Jackson County, West Virginia, to reconvene and reject certain ballots cast in a special school board levy election, held in said county on March 17, 1950, pursuant to Code, 11-8-16 and 17, the legality of which votes, according to relators' petition, as shown on the face of the election returns in the course of a recount previously conducted by the defendants under the coercion of a writ of mandamus issued by the Circuit Court of Jackson County, and to compel the defendants properly to certify the true and correct result of the election. The Circuit Court of Jackson County certified to this Court its rulings in overruling defendants' demurrers to relators' petition.

The Circuit Court of Jackson County had previously overruled a demurrer to a prior petition, and thereafter on June 1, 1950, awarded a peremptory writ. Then followed an attempt to certify the court's ruling to this Court, which attempted certification was not considered for the reason that the order was final and not certifiable.

The defendants in the first proceeding, who are the same as those herein impleaded, did not challenge upon the writ of error the correctness of the circuit court's order, but proceeded with the ordered recount.

In the first proceeding, as how, the defendants contend that they are not ex officio the proper board of canvassers of the returns of the election; that the board of education is the proper board of canvassers of such returns; and that the relators, not being candidates but prosecuting this proceeding as citizens, residents, taxpayers and voters of Jackson County, have no right in the instant proceeding to a writ to correct the recount heretofore made by the board of canvassers.

Shortly before the Board of Education of Jackson County began to canvass the returns of the election, the board was served with an injunction issued by the Circuit Court of Jackson County upon a bill of complaint filed by the same persons as the relators herein, and the board of education and the individual members thereof were enjoined from conducting the canvass of the returns of said special election. The board of education and the individual members thereof filed a demurrer to the bill of complaint, which demurrer remains undecided.

On the same day the County Court of Jackson County, being in attendance at the courthouse, proceeded to and did canvass the returns, the result of which canvass showed that the levies were authorized by a vote of more than sixty percentum of the voters who cast their votes at the special election in favor of the additional levies.

The unofficial returns of the local election, which the petition alleges was held by the board of education pursuant to Code, 11-8-16 and 17, and not otherwise, showed that of the 4,633 votes purported to have been cast 2,784 had been voted for the levies and 1,849 against the levies, so that there were four votes in favor of the levies in excess of the statutory requirement of sixty percentum. As a result of the canvass, the defendants, acting as a board of canvassers, certified that 4,623 votes had been cast at the election, of which 2,780 had been cast for the levies, and 1,843 against the levies, so that on the basis of such canvass there were six votes in favor of the levies in excess of the required sixty percentum. At the conclusion of the coerced recount of the votes cast in precincts Nos. 3, 18, 19, 20, 21, 22, 23, 24, 25, 26, 30, 31, 32, 33, 37, 38, 39, 40, 41, 42 and 43 the defendants acting as a board of canvassers on June 19, 1950, certified that of the 4,614 votes, which were entitled to be counted, 2,770 had been voted for the levies and 1,884 against the levies, so that 1.6 votes were cast in favor of the levies in excess of the required sixty percentum.

On the return date of the rule issued by the Circuit Court of Jackson County, in the instant proceeding, the defendants interposed an original demurrer to the petition, which was argued by counsel before the Honorable Lewis H. Miller, the regular Judge of the Circuit Court of Jackson County; and the court directed the preparation of a vacation order overruling the demurrer and requiring the defendants to make answer or return to the petition and rule on or before July 20, 1950, and continued the cause until that date for further proceedings. This order, however, was not entered for the reason that Judge Miller, determining on his own motion that because he was related by blood to some of the voters whose votes were under attack, declined to act. Later the case was heard before the Honorable John W. Hereford, Judge of the Sixth Judicial Circuit, upon argument upon defendants' original demurrer to relators' petition, and upon defendants' joint, several, amended and supplemental demurrers to the petition then tendered for filing. Then followed: (1) Judge Hereford's written opinion, to the effect that the joint, several, amended and supplemental demurrers to the petition should be overruled; (2) an order of November 6, 1950, overruling the demurrers and directing the instant certification; and (3) the certificate herein, dated November 6, 1950, and an order, dated November 6, 1950, filing the certificate, and the signing and transmission thereof to this Court.

In paragraph 11 of their petition relators challenge the correctness of the action of the board of canvassers in tallying, counting and certifying, over objection, a total of twenty-four absentee voters' ballots, because applications therefor were not made to the circuit clerk ten days prior to the date of the election. It is alleged that these ballots are illegal under the provisions of Code, 3-6-2, which reads: 'An elector, as designated in section one of this article, expecting to be absent from the State on the day of any primary, general or special election, may, not more than thirty nor less than ten days prior to the date of any such election, make application to the clerk of the circuit court of the county in which his voting precinct is situated for an official absent voter's ballot or ballots to be voted at such election.' Relators further aver that the alleged invalidity and illegality of each and every one of the twenty-four absentee ballots were patently and manifestly apparent on the face of the returns, and it was unnecessary for the board of canvassers to have recourse to any extrinsic evidence to determine the legality or illegality of the questioned ballots; and, therefore, it was the mandatory and ministerial duty of the defendants, acting as a board of canvassers, in the course of the coerced recount to reject each and every one of the twenty-four absentee voters' ballots.

In relators' petition in paragraphs 12, 13 and 14, 16 several ballots cast by minors in precincts 18, 19, 20, 30 and 37; 65 ballots cast by nonregistered voters in precincts Nos. 18, 19, 20, 21, 23, 25, 26, 30, 37, 38, 40, 42 and 43; and 206 ballots cast by late registrants in precincts Nos. 18, 19, 20, 21, 22, 23, 24, 25, 26, 30, 31, 37, 38, 39, 40, 42 and 43, respectively, are charged to be manifestly and apparently invalid and illegal on the face of the returns without necessity of recourse to extrinsic evidence; and that it thus became the mandatory and ministerial duty of the said board of canvassers to reject each of such invalid and illegal ballots and to proportionately reduce the votes 'for' and 'against' said levies in said several precincts in the same proportions which the votes for and against the levies in said precincts bore to the sum total of such invalid and illegal ballots. It is further charged in the latter part of paragraph 14 of the petition, and in paragraph 15 thereof in regard to the foregoing grouping of ballots,...