Stafford v. Bd. Of Canvassers Of Mingo County

• Decision Date: 20 December 1904
• Citation: 56 W.Va. 670,49 S.E. 364
• Court: West Virginia Supreme Court
• Parties: STAFFORD v. BOARD OF CANVASSERS OF MINGO COUNTY.

49 S.E. 364

56 W.Va. 670

STAFFORD

v.BOARD OF CANVASSERS OF MINGO COUNTY.

Supreme Court of Appeals of West Virginia.

Dec. 20, 1904.

ELECTIONS—CUSTODY OP BALLOTS—KEYS OF BOXES.

1. When the clerk of a county court has laid before the board of canvassers of the county, for the purposes of a recount, the ballots, poll-books, and other returns of the election, and, without just cause, has refused to receive back into his custody the ballots and care for them during the recesses of the board, while engaged in the recount, such board may lawfully commit the care and custody of the ballots to the sheriff of the county.

2. Retention of one or both of the keys to the ballot boxes, although the ballots are in the boxes, by the board of canvassers or a member thereof, does not justify the refusal of the clerk to preserve and be responsible for the ballots.

3. When all the ballots cast at all the precincts in an election held in the county have been kept in proper custody, and the packages of ballots voted at one of the precincts nevertheless bear evidence of having been tampered with, that fact does not vitiate the ballots cast at the other precincts.

(Syllabus by the Court)

Petition of John L. Stafford for a writ of mandamus to the board of canvassers of Mingo county. Writ denied.

John H. Holt, Geo. J. McComas, and S. D. Stokes, for petitioner.

Mollohan, McClintic & Mathews, John A. Sheppard, Wells Goodykoontz, and S. U. G. Rhodes, for respondents.

POFFENBARGER, P. John L. Stafford, who was a candidate on the Democratic ticket for the office of prosecuting attorney of Mingo county, at the election held in that county in November last, asks for a writ of mandamus to compel the board of canvassers of that county to reject all the ballots cast at said election in said county, and declare the result of the election between himself and his competitor, John A. Sheppard, the candidate for the same office on the Republican ticket from the returns as certified by the precinct election officers, on the ground that all of said ballots are discredited and vitiated as evidence because of their having been in improper and illegal custody for several days, while the recount in said election was pending. Simultaneously with this application, like petitions, based on the same ground, were filed by the Democratic candidates for sheriff, house of delegates, assessor, commissioner of the county court for short term, and commissioner of the county court for full term.

The facts are as follows: After the board of canvassers had canvassed the returns of the election of the county and declared the result as ascertained by them from the face of the returns, the Republican candidates demanded a recount as to nine precincts specified by them. After having gone through the nine precincts and counted all of the undisputed ballots, without entering the result upon the record, but having their tellers make memoranda of the results of such counting, and laid aside for future action all the disputed ballots, the board of canvassers was asked by the Republican candidates to recount all the other precincts of the county. Thereupon the clerk of the court, in whose custody the ballots and other returns were, was required to produce them to the court. Though not required by law to be kept in the ballot boxes, the ballots of each precinct were in the ballot box used thereat, and locked up therein, each box having two locks and a separate key for each. Upon taking a recess, for some purpose, the board retained one of the keys to each of the ballot boxes, and directed the clerk to take charge of the ballots and boxes and keep them in his custody until the reassembling of the board, and during other recesses while the recount was pending. Because of the retention of the keys by the board, he declined to accept and take care of the ballots. Thereupon the board directed the sheriff of the county to guard and take care of the ballots and ballot boxes in the courtroom. There is some conflict between the petition and the return as to the circumstances which led up to this final action on the part of the board, but there is no substantial difference as to the ground upon which the clerk attempts to justify his act, nor as to the ground upon which the board...