State ex rel. Chambers v. County Court of Logan County

• Decision Date: 23 July 1960
• Docket Number: No. 12063,12063
• Citation: 145 W.Va. 581,116 S.E.2d 125
• Court: West Virginia Supreme Court
• Parties: . Supreme Court of Appeals of West Virginia

Page 125

116 S.E.2d 125

145 W.Va. 581

STATE ex rel. C. C. CHAMBERS v. COUNTY COURT OF LOGAN COUNTY et al.

No. 12063.

Supreme Court of Appeals of West Virginia.

Submitted July 22, 1960.

Decided July 23, 1960 (Order).

Opinion Filed Sept. 13, 1960.

Syllabus by the Court

1. 'Any officer or person upon whom any duty is devolved by Chapter Three of the Code, as amended, may be compelled to perform the same by writ of mandamus.' Pt. 1 Syl., Adams et al. v. Londeree et al., 139 W.Va. 748 .

2. Courts are loathe to disfranchise qualified voters who have done all required of them by law to entitle them to vote and to have their votes counted.

3. Failure of precinct election officials to perform the duties imposed on them by Code, 3-5A-20, and Code, 3-6-10, both as amended, will not render void absent voters' ballots which are otherwise valid.

4. Precinct election officials who neglect or refuse the timely performance at the polling place of the duties imposed on them by Code, 3-5A-20, and Code, 3-6-10, both as amended, may be required by mandamus to reconvene subsequently in order to complete the performance of such duties according to law.

5. When a county court, sitting as a board of canvassers, adjourns without having legally and completely performed the duties imposed by law on such board, it may be required by mandamus to reconvene to complete the performance of such duties according to law.

Charles R. McElwee, Charleston, for relator.

Carl A. McComas, Huntington, William L. Jacobs, Parkersburg, for respondents.

CALHOUN, Judge.

This is an original proceeding in mandamus in the name of the State of West Virginia at the relation of C. C. Chambers against The County Court of Logan County, West Virginia, a corporation, and W. E. Bivens, Okey Justice, and John R. Browning, as Commissioners of the County Court of Logan County, West Virginia, and, as such, ex-officio members of the Board of Canvassers of the said County, and Floyd Dingess, Jackie Hobbs, N. J. Butcher, Tina Smith, Twila Doutt, Okey Hager, Tracy Gore, Walter Ferrell, David Chapman, Theodore Yeager, Clint Gore, Jim Bob Gore, Richard R. Wilding, Ada Drake, E. G. Campbell, Ernest Dean, F. M. Burgess, Helen Allen, Stanley F. Cieplechowicz, Anna R. Phillips, Elbert Chafin, Jr., Jo Alice Browning, William McKnight, Carrol Sue Chafin, C. D. McKinney, Carl T. Lee, James Montgomery, Thomas Bias, Jr., Hallis Lancaster, Cecil Boyd, Franklin Manns, Harold Dailey, Wayne Salmons, Jess Bliffins, Kenneth Maynard, James M. Kirk, and Curtis L. Taylor, election officers in seven precincts in the May 10, 1960, primary election in Logan County, West Virginia, and Luther Mounts, as Clerk of The County Court of Logan County, West Virginia, and Claude A. Joyce, individually.

This case involves the nomination of a Democratic candidate for judge of the Seventh Judicial Circuit, composed of Logan County, in the primary election which was held May 10, 1960, in which the relator, C. C. Chambers, and Claude A. Joyce, respondent, were the only candidates. More specifically, the controversy involves eighteen absent voters' ballots which precinct election officials failed to count and record on voting machines at seven precincts. One aspect of the same controversy was before the Court in an original proceeding in mandamus, decided on July 12, 1960, in which it was held that the board of canvassers had no authority in the first instance to count the eighteen ballots in question. State ex rel. Joyce v. Bivens et al., W.Va., 114 S.E.2d 901. Reference is made to the opinion in that case for a more detailed statement of the facts pertinent to the instant case.

The petition herein prays that a writ of mandamus be awarded against the precinct election officials of the seven precincts in question, commanding them to reconvene at the several polling places, or otherwise, as the Court may direct, on a day and at a time to be fixed by the Court, and then and there to take such of the eighteen absent voters' ballots as had been delivered to their respective precincts prior to the closing of the polls on primary election day, and follow the procedures with respect to such ballots prescribed by Code, 3-5A-20, as amended, and if such ballots are unchallenged, to record them on the voting machines used in such precincts; after such recordation to follow the procedure with respect to such machines as is prescribed by Code, 3-5A-23, as amended; to retabulate, reascertain and recertify the results of the primary election; and, after having done so, to return the ballots, certificates and the keys to the machines to the persons designated by law to receive them.

The petition further prays that the respondent, Luther Mounts, Clerk of The County Court of Logan County, be commanded to make the voting machines for the seven precincts available for the recordation thereon of the eighteen absent voters' ballots on a date and at a time and place to be fixed by the Court, and, after such ballots have been so recorded and after the voting machines have been locked by the election officers of the several precincts, as provided by Code, 3-5A-23, as amended, to return the voting machines to their place of storage: to furnish to the election officers of the seven precincts the poll books, registration records, forms and such other supplies and materials as may be necessary; and to deliver the absent voters' ballots in question to the election officers of the several precincts.

The petition further prays that the commissioners of the county court, and as such ex officio members of the board of canvassers, respondents, be commanded to reconvene as a board of canvassers and determine the validity of any of the eighteen absent voters' ballots which may have been challenged in accordance with Code, 3-4-18a, as amended and publicly, carefully and impartially to ascertain the results of such election in the seven precincts; and thereafter to certify the results of the primary election held in Logan County on May 10, 1960, showing the votes cast in the several precincts of the county, including the seven precincts in question, in accordance with Code, 3-4-20.

By an order entered on July 23, 1960, the Court directed that a peremptory writ of mandamus issue commanding the precinct election officials for the seven precincts in question to reconvene at ten o'clock a. m., on July 27, 1960, at the building wherein the voting machines in question are stored near the City of Logan, in Logan County, and then and there to follow the procedures with respect to the absent voters' ballots in the several precincts as is prescribed by Code, 3-5A-20, as amended; if such ballots be not challenged to record them on the voting machines used in the several precincts on primary election day and, after such recordation, to follow the procedure with reference to such machines as is prescribed by Code, 3-5A-23; to retabulate the results and reascertain and recertify the results of the primary election held in their respective precincts on May 10, 1960; and, after having done so, to return the ballots, certificates and keys to the voting machines to the persons designated by law to receive them; and commanding respondents, Luther Mounts, Clerk of The County Court of Logan County, and W. E. Bivens, Okey Justice, and John R. Browning, Commissioners of The County Court of Logan County and as such ex officio the Board of Canvassers of Logan County, to perform the several duties enjoined upon them by law and in accordance with the prayer of the petition. This opinion is now announced for the purpose of stating the reasons which prompted the Court to enter the order herein on July 23, 1960.

Courts are loathe to disfranchise qualified voters who have done all the law required of them. 'Courts * * * follow a liberal policy, to the end that voters be not deprived of the exercise of their constitutional right of suffrage.' Brown v. Carr et al., 130 W.Va. 455, 460, 43 S.E.2d 401, 405. Qualified absent voters who have done everything required of them are entitled to have their ballots counted, and failure of the election officers to perform their duties will not make such ballots void. Hatfield v. Board of Canvassers, 98 W.Va. 41, 126 S.E. 708; State ex rel. Joyce v. Bivens et al., W.Va., 114 S.E.2d 901; Brown v. Grzeskowiak, 230 Ind. 110, 101 N.E.2d 639, 102 N.E.2d 372; Mullen v. Heffernan, 193 Misc. 334, 84 N.Y.S.2d 571; Stratton v. Hall, Tex.Civ.App., 90 S.W.2d 865; Moore et al. v. Pullem et al., 150 Va. 174, 142 S.E. 415; 18 Am.Jur., Elections, Section 225, page 332.

It was contended by Claude A. Joyce, respondent, that the eighteen absent voters whose ballots are involved in this controversy are in the same position as voters who appear in person at the proper polling place in order to vote, but too late to be admitted inside before the hour for the closing of the polls. We can not agree to the soundness of such reasoning. By the exercise of greater diligence the hypothetical voters may appear at the polling places sufficiently early to be admitted. Their own lack of diligence in this respect may deprive them of their right to vote without any fault or dereliction on the part of the precinct election officials. On the other hand, the eighteen absent voters whose ballots are here in question have done everything required of them by law in order to entitle them to have their votes recorded and tabulated, and the difficulty...