Sanders v. Board of Canvassers.
| Citation | 79 W.Va. 303 |
| Parties | Sanders v. Board of Canvassers. |
| Decision Date | 28 November 1916 |
| Court | West Virginia Supreme Court |
The commissioners of the county court are ex officio a board of canvassers. They are required to convene as such canvassing board, at the court house, on the fifth day (Sunday excepted) after every election held in the county, or in any district thereof, to procure correct returns and ascertain the true result of such election in their county. (p. 306).
It is the duty of the officers in whose custody the ballots, poll books, tally sheets, and certificates have been placed, to lay the same before the said board of canvassers for examination. (p. 306).
Where the ballots, poll books, tally sheets, and certificates have been stolen after being placed in the hands of the clerk of the county court and before being laid before the canvassing board for inspection, then it is the duty of the board of canvassers to examine and consider any and all reliable evidence available which will enable the board to ascertain the contents of such certificates; and for that purpose they may require the attendance of the election commissioners, poll clerks, or other persons present at the election, to appear and testify concerning the same; and any board of canvassers failing or refusing to perform such duty may be required to do so by writ of mandamus. (p. 306).
(Lynch, Judge, dissenting). (Miller, Judge, absent).
Petition by Herbert W. Sanders for writ of mandamus against Joseph. P. Cook and others, constituting the Board of Canvassers.
Peremptory writ ordered.
M. F. Matheny and A. M. Belcher, for petitioner. R. E. Hughes, for respondents.
At the general election held in Wyoming County, November 7, 1916, Herbert W. Sanders and W. B. Belcher were opposing candidates for sheriff of the county, and voted for as such. There were several voting precincts in the county, at which the election was held. The county court of said county met as a canvassing board on Monday, the 13th of November, 1916, as required by law, for the purpose of ascertaining and declaring the result of the election. When the ballots, poll books, tally sheets, and certificates from the several voting precincts of the county were laid before the board for examination, it was discovered that one of these boxes containing such papers was missing. The clerk of the county court, who was the legal custodian of these boxes, explained that the box and election returns from Precinct No. 2, in Clear Fork District, had been stolen from the vault in his office the night before, and that the same had not been found, and for that reason the returns from that precinct could not be produced. And it also appears that the poll books, tally sheets, and certificates required by law to be delivered to the clerk of the circuit court of said county had been deposited in the said ballot box and stolen with the set intended for the clerk of the county court; so that neither the set intended for the clerk of the county court nor the set intended for the clerk of the circuit court could be produced. Thereupon one of the candidates for sheriff Sanders offered to prove by witnesses who were present at said election, the result thereof, and was permitted to produce one of the commissioners and one of the poll clerks who assisted in conducting the election, and one of the challengers, and another witness who was present. It was proven by these witnesses that the election was fairly conducted, the result ascertained, and that the poll books, tally sheets, and ballots were placed in the ballot box, and the keys dropped in the box. One of the commissioners testified that the ballot box was placed in his custody and that he delivered the same in good condition to the clerk of the county court on the Thursday following the election, and that instead of returning one of the poll books and one of the tally sheets to the clerk of the circuit court as required by law, they were placed inside the ballot box and locked for safe keeping, and delivered with the other set to the clerk of the county court. This evidence was allowed by the board of canvassers but afterwards stricken out oh the motion of Belcher and against the protest of Sanders.
It is averred that the board of canvassers refused to hear said evidence and refused to make any inquiry whatsoever into the result of said election held at said precinct No. 2. And it is further alleged that the board of canvassers hold that "it was their duty to close the canvass of said election without considering, or attempting to ascertain, the result of said election at said precinct No. 2.''
The petitioner, Herbert W. Sanders, asks for a writ of mandamus to compel the board of canvassers "to reinstate, hear and consider the evidence herein set forth, as well as other legal, competent and proper evidence as may show, or help to show, the true result of said election held in said Precinct No. 2 in said county in so far as it relates to said office of sheriff," etc. An alternative writ was issued; the defendants appeared and demurred; and the cause is submitted on the petition and demurrer thereto.
The only question presented for our consideration and determination is whether, in the absence of the ballots, certificates of election and poll books, it was the duty of the canvassing board to hear and consider other evidence in ascertaining the result of the election.
The ballot is the written memorandum of the voter's intention. The certificate of election is the declaration of the result of the election as ascertained by the commissioners from the ballots. Hence, the ballots, when identified as the ones east by the voters, are the best evidence, and when they can be obtained and are in the condition they were in when deposited by the voter, they alone must be used in ascertaining the result of the election. In declaring the result from the ballots the canvassing board would have the same evidence of the voters' intention and act that the commissioners had when the certificates were made by the commissioners at the close of the election, but if the ballots have been destroyed after the certificates are made up, or for any reason can not be produced, or if being produced, it appears that they have been tampered with since the certificates were made up and are so altered as not to show the voters' intention, then resort must be had to some other means by which to ascertain the result. Next to an inspection of the ballots when produced and identified as the ones cast by the voters, the certificates of the result of the election made up from these ballots by the commissioners, are most reliable and...
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State Ex Rel Keith 0. Bumgardner v. Mills, (No. 10148)
...at common-law, rendering it a process to control them (the officers) as to all actions ministerial or judicial' ", Sanders v. Board of Canvassers, 79 W. Va. 303, 90 S. E. 865, and by numerous decisions of this Court, mandamus is the proper remedy to require a board of canvassers to perform ......
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White v. Manchin, s. 16312
...167, 170, 38 S.E.2d 897, 899 (1946); Marquis v. Thompson, 109 W.Va. 504, 508, 155 S.E. 462, 464 (1930); Sanders v. Board of Canvassers, 79 W.Va. 303, 308, 90 S.E. 865, 867 (1916); Stanton v. Wolmesdorff, 55 W.Va. 601, 602, 47 S.E. 245, 246 (1904); Daniel v. Simms, 49 W.Va. 554, 575, 39 S.E.......
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State ex rel. Wilson v. County Court of Barbour County
... ... 2. Mandamus is the proper remedy to require a board of canvassers to perform the duties imposed upon it by law ... 3. A board of ... 504, 155 S.E. 462; State ex rel. Simon v. Heatherly, 96 W.Va. 685, 123 S.E. 795; Sanders v. The Board of Canvassers, 79 W.Va. 303, 90 S.E. 865; Kirkpatrick v. Deegans, 53 W.Va. 275, 44 ... ...
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State Ex Rel. Bumqardner v. Mills, 10148.
...common law, rendering it a process to control them (the officers) as to all actions ministerial or judicial' ", Sanders v. Board of Canvassers, 79 W.Va. 303, 90 S.E. 865, 867, and by numerous decisions of this Court, mandamus is the proper remedy to require a board of canvassers to perform ......