Snodgrass v. Wetzel County Court.

• Decision Date: 20 November 1897
• Citation: 44 W.Va. 56
• Parties: Snodgrass v. Wetzel County Court.
• Court: West Virginia Supreme Court

44 W.Va. 56

Snodgrass

v.Wetzel County Court.

Supreme Court of Appeals of West Virginia.

Submitted June 11, 1897

Decided November 20, 1897.

Elections by the People.

Error to Circuit Court, Wetzel County.

Certiorari'by R. E. L. Snodgrass to review the decision of the board of canvassers of Wetzel County that A. R. Thompson was elected clerk of the county court. From a decree in favor of Thompson, plaintiff brings error.

Ajfirnied by divided Court.

Rqbt. McEldowney, W. G. Snodgrass, C. A. Snodgrass, and H. P. Camden, for plaintiff in error.

Basil T. Bowers, for defendant in error.

Brannon, Judge:

At the late election in Wetzel county Snodgrass and Thompson were competing candidates for clerkship of the county court, and the county commissioners declared Thompson elected, and Snodgrass obtained a writ of certiorari from the circuit court to review and reverse the proceedings of the commissioners acting as aboard of canvassers, and the circuit court decided the case in favor of Thompson, and Snodgrass brings the case here upon a writ of error. Before the board of canvassers Snodgrass asked the court to reject Grant precinct for the reason that the poll clerks divided the sheets on which the ballots were printed, and, instead of each man writing hi sown name on the backs thereof, each wrote not only his own name, but that of his associate poll clerk. The question, then, is whether that act of the poll clerks, done in the room where the election was held, on the day of the election, in the presence of the other officers of the election, and in the presence of each other, and by the agreement of both of them, shall cast out Grant precinct. I answer, "No." The statute (Code 1891, p. 70, s. 36), speaking of the ballots, says: "On the back of each sheet of paper on which the ballots arc printed and as near the center thereof as may be shall be printed the words 'Poll Clerks' and under them each poll clerk shall write his name before the ballot is delivered to the voters, and the sheet containing the ballots shall be so folded as to show the words 'Poll Clerks, ' and the signatures of said clerks written thereon, before depositing the same in the ballot box." It is contended that each clerk must, with his own hand, subscribe his name. A poll clerk is purely a ministerial officer, and the act of signing is a ministerial act. "In general, all ministerial duties which the principal himself has a right to perform may be discharged by a deputy. Judicial duties cannot." 5 Am. & Eng. Enc. Law, 624. "Where the duties of a public officer are of a ministerial character, they may be discharged by a deputy." 19 Am. & Eng. Enc. Law, 462. A deputy may be appointed by parol. Mcchem, Pub. Off. § 568; Throop, Pub. Off. § 577. "A public officer may delegate to a deputy the right to subscribe the name of his principal." Ahrams v. Ervin, 9Iowa, 87; Com. v. Arnold, 3 Lift. 315; 19 Am. & Eng. Enc. Law, 462, note 2. In Downing v. Rugar, 21 Wend. 178, it was held that, where two overseers of the poor must both act together, one might, by consent of the other, act, even in his absence, alone, as the agent or deputy of both. And Code, c. 13, s. 16, says: "When a statute requires an act to be done by an officer or person it shall be sufficient if it be done by his agent or deputy, unless it be such as cannot lawfully be done by deputation." Now, if we were to test the act involved in this case of the signatures of the poll clerks by the principle of the common law relating to authority of public officers to act by agent or deputy, the act would be sustained, and it is not clear that we might not so test it; but I merely mention these principles as corroborative of other reasons I shall give for sustaining this act. Really, it is not a question of agency or deputation, for here the poll clerks were facing each other at the election room, and the one authorized the other to sign his name, and it was done in his presence, and by his consent. They separated the ballots into two bunches, and for speed in indorsing their names, signed as I have said. Each signature was in law the act of him whose name it bore, because done in his presence, and by his authority. It does not raise the question whether one could, in the absence of the other, by his authority, thus sign his name. Take the case of signing deeds and other writings required to be signed by the party under the statute of frauds. It is settled law that if one person, standing by another, authorizes him to sign his name, it is not an act of agency, but is regarded as the very signature of the very party himself, as if done by himself. Chief Justice Shaw said in Gardner v. Gardner, 5 Cush. 483: "The name being written by another, and in the presence of the grantor, at her request, is her act. The disposing capacity, the act of mind, which are the essential and efficient ingredients of the deed, are hers, and she merely uses the hand of another, through incapacity or weakness, instead of her own, to do the physicial act of making a writtensign." So speak the authorities generally as to deeds. Browne, St. Frauds, §§ 10 12; Wood, St. Frauds, § 16. Why shall we not apply the same reasoning in the case of a poll clerk signing under these circumstances? The signature of the one, done in the presence of the other, by his direction, is his own signature. The only purpose of requiring the poll clerk's indorsement is to make an earmark by which the officers of the election can tell whether the ballot handed them by the voter is the genuine official ballot, as they seethe poll clerk's signature thereon. Now, there is no whisper in this case that these ballots are not the genuine official ballots used at the election. There is no suggestion from any quarter that they are spurious or false in any respect, or are not the true expression of the will of the voter. There is no proof that the ballots are counterfeit, or that the signatures on them are not the true signatures of the poll clerks, made in the manner stated. Wherein, then, do these signatures fail to perform the function which they are designed to perform just as well as if each clerk had signed his own name? Are we to defeat the popular will, reverse the decision of both the county and circuit courts, for a reason so barren of reason? I cannot thus lightly overthrow the popular will, and deprive a party, plainly elected by the popular verdict, of his office.

In Dial v. Hollandsworth, 39 W. Va., l, (19 S. E. 557,) Judge Dent said, after speaking of principles of liberality applied by the courts to sustain fair elections: "There is no good reason why these principles should not apply to the present election law as well as any other. The contestant neither alleges nor proves that the result of the election was changed, or rendered so uncertain as to make it impossible to ascertain the true result." We have this same election law and Australian ballot involved in this case. He further said: "To permit the misconduct, innocent or otherwise, of election officers or other persons to furnish a sufficient excuse to overturn the express will of the people would be setting an extremely dangerous precedent, and would be far more disastrous to popular suffrage than to allow the result of an election to stand which has been fairly ascertained by sworn officers, whose integrity is unimpeachable, although they may have been innocently guilty of the grossest irregularities, in disregard of the plain requirements of the law." And that case held that, to overthrow an election for irregularity the burden is upon the party who would do so to establish the unfairness of the election, unless in plainly appears that the irregularity changed the result of the election; and the court and the opinion of Judge Dent in that case approve the doctrines of Loomis v. Jackson, 6 W. Va. 613, holding that any provisions in regard to the matter of holding and conducting elections and counting votes and certifying results must be held to be only directory, and that, when the true result has been ascertained, or can be ascertained, no irregularity, mistake, or even fraud by the officer of the election, or by any other person, can be per- mitted to defeat the popular will as expressed in said election. Now, how can it be said that the mere manner of the signatures of the poll clerks is any fraud upon the election, or can at all render the election uncertain? It is wholly an immaterial irregularity. In the case of Dial v. Hollandsworth, supra, the Court went so far, in order to uphold a fair result, that it ignored the act of officers of the election in appointing two poll clerks without a shadow of authority, and the acting of such unlawful poll clerks of the same political party in preparing the ballots of illiterate voters in separate rooms, with every opportunity to falsify the ballots. I thought that they produced such uncertainty as to the result, or left the door so wide open for fraud, that it was a material variance from what the law required. But the court condoned that, a vastly more serious irregularity than the one involved in this case. And now, applying the principles of the Dial Case to this case, it is plain to me that we ought not to overthrow the election in this case for that cause, It would be a violation of the principles laid down in the Dial Case. I see no trouble in the fact that Code, c. 13, s. 17, cl. 3, says that, "when the signature of any person is required it must be in his own proper handwriting or his mark attested, proven or or acknowledged." Here the signature is clearly proven. You allow one to make a cross mark, and, if it be proven, the statute makes it good. When the whole signature is proven genuine, is not that good? Take the case of a blind or sick or illiterate person authorizing you to write his whole name. Is not that good under the statute when, if he made his mark, it would unquestionably be? The ballots were not sealed up, but they were put...