State Ex Rel. Clyde B. Johnson v. Given

• Citation: 102 W.Va. 703
• Decision Date: 08 January 1927
• Docket Number: (No. 5909)
• Court: Supreme Court of West Virginia
• Parties: State ex rel. Clyde B. Johnson, Petitioner, v. Omer Given,President, and Grant Copenhaver and W. H. O'Dell,constituting The Board of Canvassers of KanawhaCounty, and Walter S. IIallanan, Respondents.

102 W.Va. 703

State ex rel. Clyde B. Johnson, Petitioner,

v.Omer Given, President, and Grant Copenhaver and W. H. O'Dell, constituting

The Board of Canvassers of Kanawha County,

and Walter S. IIallanan, Respondents.

(No. 5909)

Supreme Court of Appeals of West Virginia.

Submitted January 3, 1927.

Decided January 8, 1927.

February 1, 1927.

Opinion Filed February 1, 1927.

1. Elections Canvassing Board Required on Recount to Reject

Ballots Not Indorsed by Both Poll Clerks Appointed to Act as Clerks of Receiving Board.

On a recount of the ballots cast at an election, the canvassing board is required, by section 66 of chapter 3 of the Code, to reject and not count all ballots not indorsed by both poll clerks appointed to act as clerks of the receiving board, (p. 707).

2. Same Mistake in Returns Showing That Clerks of Counting

Board and Not Clerks of Receiving Board Indorsed Ballots May be Corrected by Board of Canvassers by Competent Evidence, But in Absence of Such Evidence Acted on by Board Court Will Not by Mandamus and Ex Parte Affidavits Not Considered by Board Compel it to Reconvene and Recount Ballots so Irregularly Indorsed. If on a recount of the ballots cast at an election it appears from the returns that the poll clerks of the counting board and not the poll clerks of the receiving board indorsed the ballots, and it is represented that this is a mistake in the returns, the board of canvassers may by competent evidence correct the returns to correspond to the fact; but in the absence of such evidence acted upon by the board of canvassers, this court will not by mandamus compel the board to reconvene and recount the ballots so illegally indorsed. And ex parte affidavits on the subject not presented to or considered by the board of canvassers, will not be considered here on an application for such writ. (p. 708).

3. Mandamus Peremptory Writ of Mandamus Can Not En-

large Upon Demand of Alternative Writ.

A peremptory writ of mandamus can not enlarge upon the demand of the alternative writ and award relief not warranted nor demanded by the original process, (p. 709).

4. Elections Candidate Appealing to Ballots Upon a Canvass

of Returns of Election to Overcome Prima Facie Case Pre- sented by Returns Will be Presumed to Have Investigated and Satisfied Himself Whether the Ballots Have Been Preserved so as to Maintain Their Integrity, and Bound by the Residt of the Recount Unless the Ballots Disclose on Their Face Some Infirmity Rendering Them Invalid. Where, upon the canvass of the returns of an election, the ballots are appealed to by a candidate to overcome the prima facie case presented by the returns, the first question to be considered by him is whether the ballots have been preserved in the manner required by law to maintain their integrity, and it will be presumed that in so appealing to the ballots he has investigated the facts and satisfied himself on this question before demanding such recount; and after such recount has been had, he will be bound by the result thereof unless the ballots when opened and considered disclose on their face by some infirmity rendering them invalid, (p. 710).

5. Same Duty of Board of Canvassers and Election Officers in Counting Ballots to Give Effect to Will of Voters if Possible Regardless of Irregularities in Markings Upon Ballots. In counting the ballots at an election, it is the duty of the board of canvassers, as of the election officers, to give effect to the will of the voters if possible to do so, regardless of irregularities in the markings upon the ballots, (p. 517).

Original jurisdiction.

Petition in mandamus by Clyde B. Johnson against Omer Given, President and Grant Copenhaver and W. II. O'Dell, Board of Canvassers, Kanawha County, and Walter S. Hallanan, respondents.

Writ awarded: as to part of relief prayed for,

W. E. R. Byrne and Henry S. Cato, for relator. II. D. Rummel, T. C. Townsend and M. F. Matheny, for respondents.

Miller, Judge:

By the petition and alternative writ peremptory process is sought to compel the board of canvassers to reconvene and declare that at the general election held in said county on November 2, 1926, petitioner Johnson, for the office of state senator from the eighth senatorial district, received 20, 852 votes, and that his opposing candidate, "Walter S. IIallanan, received 20, 660; and also to count for him 42 votes and for Walter S. IIallanan 20 votes, alleged to have been received by them respectively for said office at Precinct No. 16, Cabin Creek District, and to do and to leave undone certain other things complained of by petitioner in canvassing the returns and recounting the ballots cast at said election made upon the demand of both candidates, to be separately considered in the order of precedence set forth in the alternative writ.

But first, before proceeding to dispose of the merits of the case sought to be presented by the pleadings, we are confronted with the demurrer and motion of respondents to quash the alternative writ. Does the pleading then present a case calling for the extraordinary remedy? It is settled in this State, and generally, we think, that mandamus will not lie when the thing or things sought would be unnecessary, fruitless, unavailing or nugatory; that the court will not compel the doing of a vain thing simply to enforce a mere abstract right unattended by any substantial benefits to the relator. Hall v. Staunton, 55 W. Va. 684; West Virginia National Bank v. Dunkle, 65 W. Va. 210, 214. This principle was applied in Ice v. Board of Canvassers, 64 W. Va. 544, an election case, like this, where we held that mandamus would not lie to enforce such a mere abstract right in order to satisfy the pride or ambition of the petitioner. And for the failure of the alternative writ to allege how the petitioner would be benefited, if at all, by the action sought, the writ or petition was held to be insufficient to call for a decision of the questions raised.

Neither the petition nor the alternative writ in this case alleges how or the fact that petitioner will profit by the award of the peremptory writ. It alleges that on a final canvass and recount it was found that petitioner had received 20, 772 votes and Hallanan 20, 656, showing a clear majority in the county in favor of petitioner of 116 votes. What the result was in other counties of the senatorial district does not appear in the pleadings or elsewhere in the record so far as we have been able to discover. So the demurrer to the writ probably ought to be sustained.

But waiving these technical grounds, not urged in the briefs or arguments of counsel, we will proceed to dispose of the case on its merits, that there may be a speedy disposition of the case, involving as it does, questions of public interest.

First, as to the right of petitioner to have counted for him the 42 votes and for Hallanan the 20 votes alleged to have been received by them respectively at Precinct No. 16, Cabin Creek District, as shown on the face of the returns of the election officers at that precinct. "When respondents reached this precinct in the course of the recount, they and counsel for Hallanan discovered that the ballots contained in the sealed packages were indorsed by V. D. Johnson and Mrs. M. B. Smisko, who according to their oaths and certificates appearing on the face of the poll books and tally sheets were poll clerks for the counting board and not for the receiving board, these books and tally sheets in the same way showing that the clerks of the receiving board were respectively M. B. Smisko and W. M. Clendennin. These facts appear in at least seven places on the poll books and tally sheets. And so appearing and the ballots showing the indorsement of the poll clerks of the counting board and not the clerks of the receiving board, the board of canvassers sustained the motion of counsel for Hallanan to strike out or refuse to count any of said ballots. The question is, has petitioner shown a clear right to have them counted as required by the alternative writ?

When the facts thus appearing were so presented, counsel for petitioner called as a witness Mrs. M. B. Smisko, and onobjection to her being sworn and to any testimony she might give respecting how she acted or as to the manner of conducting the election at said precinct, she was not permitted to testify. Whereupon counsel for Senator Johnson avowed on the record that if permitted to testify she would state that at said election she acted as receiving clerk and did not act as counting clerk, and also that V. D. Johnson acted with her as receiving clerk and not as counting clerk; also that she and the said Johnson signed their names as poll clerks on the back of each and every ballot cast at said election in said precinct; also that if she signed her name to an affidavit purporting or which could be construed to be an affidavit of counting clerk, she did so by inadvertence, and likewise if said Johnson signed a similar affidavit, he also did so by like inadvertence; that both began and continued throughout the day to discharge the duties of poll clerks of the receiving board, and not as clerks of the counting board, which latter duties were performed by M. B. Smisko and W. M. Clendennin. A counter avowal was offered by counsel for Hallanan, that if said Johnson was in the State and could be present to testify, he would say that he and Mrs. Smisko qualified and acted as poll clerks of the counting board and not as clerks of the receiving board. We observe from the form and substance of the avowal that it was not proposed to prove by the witness that she and Johnson were duly appointed and qualified by anyone in authority or otherwise as poll clerks in one capacity or the other, but only that they acted as such clerks of the receiving board and signed all ballots as such. The statute, sections 8, 26a(33), 26a(34), 26a(35), chapter 3, Barnes' Code 1923, provides for the appointment of double election boards by the...