State Ex Rel. Bumqardner v. Mills, 10148.

• Decision Date: 22 March 1949
• Docket Number: No. 10148.,10148.
• Citation: 53 S.E.2d 416
• Parties: STATE ex rel. BUMQARDNER v. MILLS et al.
• Court: West Virginia Supreme Court

53 S.E.2d 416

STATE ex rel. BUMQARDNER

v.MILLS et al.

No. 10148.

Supreme Court of Appeals of West Virginia.

Decided March 22, 1949.

Submitted March 15, 1949.

Opinion Filed May 10, 1949.

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Syllabus by the Court.

1. Mandamus is the proper remedy to require a board of canvassers, upon a recount of the votes cast at an election, to procure correct election returns, to count properly and correctly, according; to such returns, the votes between the candidates involved in such recount, and to ascertain and declare the true result of such election.

2. The writ of mandamus will not issue to compel a board of canvassers, upon a recount of votes cast at an election, to perform an act which is not within the scope of its statutory duties or which it is not by law authorized or empowered to perform.

3. Upon a recount of ballots cast at an election, a board of canvassers is without authority to consider or determinematters not shown by the election returns or by relevant evidence of the commissioners, the poll clerks, or other persons present at such election respecting such returns, or which may be established only by evidence extrinsic to the election returns.

4. Upon a recount of election ballots a board of canvassers may not consider or determine questions of fraud, intimidation or illegality in an election, the eligibility of a candidate, the validity of the appointment of precinct election officers, the qualifications of such election officers, or irregularities discoverable in the course of a recount which can be established only by evidence extrinsic to the election returns.

5. Notwithstanding the provisions of Code, 3-8-6, and 3-8-8, which require a candidate to file, within thirty days after a general election, a detailed itemized verified statement of his financial transactions with respect to such election, it is the duty of a board of canvassers, upon the conclusion of a recount of the ballots cast at an election, to ascertain and declare the result of the election and to issue to the candidate who has failed to file such statement but who receives the highest number of votes, as shown by the election returns, a certificate of the result of the election.

6. The statutory requirement that each of the poll clerks at an election shall personally sign his name on the back of an election ballot before delivering it to the voter relates to the poll clerks of the receiving board at each election precinct at which double election boards are appointed and act and to the poll clerks at each election precinct at which a single election board conducts an election and is mandatory; and any ballot which is not so indorsed with the names of such poll clerks, other than the ballot of an absent voter and the ballot of a challenged voter, is void and can not be counted.

7. Under the provisions of Section 31-a, Article 5, Chapter 44, Acts of the Legislature, 1941, Regular Session, it is the duty of a board of canvassers, upon a recount of ballots cast at an election to determine the validity of ballots of challenged voters and, when the challenges are determined to be unfounded, to count and tally, with the regular ballots cast at such election, such ballots of challenged voters which are otherwise valid.

8. A finding of fact by a board of canvassers upon a recount of election ballots, based upon its inspection of the election returns and evidence relating to such returns introduced before the board, will not be disturbed in a proceeding in mandamus unless such finding is against the weight of the evidence or is in contradiction of the election returns.

9. Evidence, offered by affidavit or other means, which could have been, but was not, presented to and considered by a board of canvassers upon a recount of election ballots, will not be considered in the first instance in a proceeding in mandamus in this Court involving the action of the board upon such recount.

10. In the absence of evidence to the contrary, the acts of an election officer in the performance of a duty imposed upon him by law are presumed to have been legally performed.

11. Upon a recount of election ballots by a board of canvassers no ballot shall be rejected for any technical error which does not make it impossible to determine the choice of the voter.

12. Upon a recount of election ballots by a board of canvassers a valid ballot of a voter must be counted in the manner intended by him whenever it is possible to ascertain his intention as indicated by such ballot.

13. The intention of the voter, when ascertainable, is controlling in determining for whom an election ballot shall be counted.

14. A ballot which contains three party tickets, two of which list the names of the candidates for every office on each ticket and the other of which does not list the names of any candidates for any state, county or district office on that ticket, and on which ballot the voter has placed, as his only marks, an "X" in the circle at the head of one of the tickets which lists the names of the candidatefor every office on such ticket and also an "X" in the circle at the head of the ticket which does not list the names of any candidates for any state, county or district office on that ticket, is properly counted for the candidate for the office of sheriff whose name appears on one of the two tickets which the voter has marked with an "X" in the circle at the head of each of such tickets.

15. "Distinguishing marks on a ballot will not cause its exclusion from the count." Syllabus 4, Doll v. Bender, 55 W.Va. 404, 47 S.E. 293.

16. An election ballot from which it is impossible to determine the intention of the voter when it was cast is properly rejected.

17. An election ballot from which it is impossible to determine the choice of candidates of the voter when it was cast is properly rejected as to such candidates.

18. In a proceeding in mandamus the petitioner must show a clear legal right to the relief which he seeks.

Original proceeding in mandamus by the State, on the relation of Keith O. Bumgardner, against Frank Mills and others to require county board of canvassers to reconvene, set aside its previous order and enter an order declaring petitioner to be duly elected sheriff of Harrison County.

Writ denied and rule discharged.

Johnson & Johnson and C. B. Johnson, all of Clarksburg, for petitioner.

J. Philip Clifford, Prosecuting Attorney, Maxwell & Young, Lloyd H. Young and J. C. McManaway, all of Clarksburg, for defendants.

HAYMOND, President.

On February 14, 1949, the petitioner, Keith O. Bumgardner, instituted in this Court this original proceeding in mandamus. The petition prayed that a writ issue to require the defendants, Frank Mills, E. George Smith, and Brent G. Rittenhouse, Commissioners of the County Court of Harrison County, and as such the board of canvassers of that county, to reconvene, set aside its order of December 30, 1948, entered upon a recount, by which the defendant, Fitzhugh Reynolds, was declared to be the duly elected Sheriff of Harrison County, and to enter an order declaring the petitioner to be the duly elected sheriff of that county, and for general relief. This Court awarded a rule returnable March 15, 1949. On that day, upon the petition, the separate demurrer of the defendant Rittenhouse, the demurrer and the answer of the defendants constituting the board of canvassers, the demurrer and the answer of the defendant, Fitzhugh Reynolds, the various exhibits and other papers filed with these pleadings, and the testimony of certain election officers introduced before the board of canvassers upon the recount, the proceeding was heard and submitted for decision. On March 22, 1949, by order entered on that day, this Court refused the writ and discharged the rule. This opinion is now filed for the purpose of stating and recording the reasons for that decision.

The petitioner, Keith O. Bumgardner, and the defendant, Fitzhugh Reynolds, were opposing candidates for the office of Sheriff of Harrison County at the general election held in that county on November 2, 1948. The petitioner was the candidate on the Republican ticket and the defendant Reynolds was the candidate on the Democratic ticket. The name of any other person as a candidate for that office did not appear on any ticket on the official ballot printed and used in that election. According to the canvass of the returns of the election, which was completed on November 13, 1948, the petitioner received 18, 234 votes and the defendant Reynolds 18, 222 votes, or a majority of twelve votes for the petitioner. Before a declaration of the result was made, Reynolds demanded and was granted a recount of the ballots in the manner provided by the statute. At the conclusion of the recount, which seems to have occurred on December 27, 1948, it appeared that the petitioner received 18, 086 votes and that the defendant Reynolds received 18, 130 votes, or a majority for Reynolds of forty four votes. These tabulations were recorded by order enteredby the board of canvassers on December 30, 1948, which declared the defendant Reynolds to be the duly elected Sheriff of Harrison County. Having taken the oath of office, Reynolds entered upon the duties of sheriff on January 1, 1949, and he is now occupying that office. On January 8, 1949, the petitioner gave to Reynolds a notice in writing that he intended to contest his election as sheriff and the contest of such election is now pending in the County Court of Harrison County.

The petitioner complained of the action of the board of canvassers and sought a writ of mandamus on these specified grounds: (1) Three hundred and forty two ballots signed by a commissioner and a poll clerk, but not by both poll clerks, at Precinct No. 29 in Clark District, were not counted by the board of canvassers, which ballots, if counted, would have given the petitioner a majority of fifty eight votes at...