State ex rel. Hammond v. Hatfield

• Decision Date: 12 July 1952
• Docket Number: No. 10501,10501
• Citation: 137 W.Va. 407,71 S.E.2d 807
• Parties: STATE ex rel. HAMMOND, v. HATFIELD, Mayor, et al.
• Court: West Virginia Supreme Court

Page 807

71 S.E.2d 807

137 W.Va. 407

STATE ex rel. HAMMOND, v.HATFIELD, Mayor, et al.

No. 10501.

Supreme Court of Appeals of West Virginia.

Submitted July 8, 1952.

Decided July 12, 1952.

Syllabus by the Court.

1.On the question whether ballots have lost their integrity so that they may be disregarded by a canvassing board, '* * * the statutory test is the opportunity to tamper with the ballots and not actual evidence of tampering.'Taylor v. Board of Canvassers of Mineral County, 119 W.Va. 378, Pt. 2, Syl. .

2.'Upon a recount of ballots cast at an election, a board of canvassers is without authority to consider or determine matters 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.'State ex rel. Bumgardner v. Mills, 132 W.Va. 580, Pt. 3, Syl. .

3.'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.'State ex rel. Bumgardner v. Mills, 132 W.Va. 580, Pt. 4, Syl. .

4.Under Section 11, Chapter 136, Acts of the Legislature, Regular Session, 1933(the Charter of the City of Williamson), the mayor and the council of that city, acting as a board of canvassers, shall be governed by the general election laws of the State'so far as applicable', in canvassing and certifying the returns of a municipal election.

5.'No ballot shall be rejected for any technical error which does not make it impossible to determine the voter's choice.'Code, 3-5-19, as amended and reenacted by Section 19, Article 5, Chapter 51, Acts of the Legislature, Regular Session, 1943.

6.Upon a recount of the ballots cast at an election, 'The intention of a voter, when ascertainable, is the guiding star in determining for whom a ballot shall be counted.'State ex rel. McKown v. Canvassers, 113 W.Va. 498, Pt. 1, Syl. .

7.The provision of Code, 3-6-5, that: 'Before any [absentee] ballot is mailed or delivered, the clerk shall affix his official seal and he and the other members of the board of ballot commissioners shall place their signatures near the lower left hand corner on the back thereof', is substantially complied with when one or both of the ballot commissioners and the clerk, as exofficio ballot commissioner, have signed the ballot on the back thereof, notwithstanding that the clerk has not affixed the official seal, the latter provision being merely directory.

8.'As to mistakes and irregularities in elections, a distinction exists between those made by the voter and those made by officers of election.In the former case such mistakes and irregularities may often destroy the ballot, while those of officers do not affect the election, if a fair election has been held.'Morris v. Board of Canvassers, 49 W.Va. 251, Pt. 2, Syl. .

9.Upon a recount of ballots cast at an election a ballot should not be rejected on the sole ground that the voter signed the ballot on the back thereof, in violation of Code, 3-7-7, which provides, in part, that 'No voter shall place any mark upon his ballot, or suffer or permit any other person to do so, by which it may be afterward identified as the ballot voted by him.'

10.The question whether, under Code, 3-6-10, as amended and re-enacted by Section 10, Article 6, Chapter 44, Acts of the Legislature, 1941, absentee ballots, which were not placed in the ballot box between the opening and closing of the polls, are void, is undecided by a divided Court.

11.Under Code, 3-5-18 and 3-5-31 ballots, other than absentee ballots and ballots of challenged voters, which are not indorsed by the poll clerks are void.

12.In a proceeding for a writ of mandamus for the purpose of having a recount of election ballots corrected, and certificates of the result of the election issued on the basis of such corrected recount, brought against the members of a canvassing board in their official capacity, who made the recount sought to be corrected, and against their successors in office, which proceeding was instituted after the expiration of the terms of office of the members of the predecessor board, the writ prayed for, it issued, should be directed against the new officers as composing a new board of canvassers.

Bias & Bias, J. Brooks Lawson, S. N. Friedburg, Williamson, for relator.

Lant R. Slaven, Wade H. Bronson, Sr., Ersel L. Slater, E. E. Tomlinson, Jr., Zane Grey Staker, Wade H. Bronson, Jr., Williamson, for respondents.

RILEY, President.

The relator, Henry T. Hammond, the unsuccessful Republican candidate for Mayor of the City of Williamson at an election held on June 10, 1952, brought this original proceeding in mandamus against Joseph P. Hatfield, Mayor of the City of Williamson, John Layne, Norman Roberts, Wilson R. Farrar, and Joe Marcum, members of the Council of the City of Williamson, the five so named, as such, comprising the Board of Canvassers of the City of Williamson until midnight on June 30, 1952(hereinafter referred to as the 'Board'), and their successors in office, Pierce B. Maynard, Mayor-elect of the City of Williamson, and John Layne, Walter L. Jude, Leonard Esteppe, and Wallace W. Farley, Councilmen-elect of the City of Williamson, who assumed their offices on July 1, 1952, and, as such, comprise the Successor Board of Canvassers of the City of Williamson(hereinafter referred to as the 'Successor Board'); Melba Hatfield, Clerk of the City of Williamson and 'her successor in office, if any there be,'; and Pierce B. Maynard individually, praying for a writ of mandamus commanding the Board or Successor Board to convene, as a board of canvassers, and count certain ballots for the relator Hammond, allegedly wrongfully counted for Maynard on the recount; count for the relator Hammond certain ballots not counted by the Board for either candidate; and reject and not count for either party certain other ballots allegedly wrongfully counted for Maynard.The petition alleges that upon a proper counting and rejecting of ballots, the relator is the duly elected Mayor of the City of Williamson, and prays, inter alia, that the Board, or Successor Board, certify the result of the election, showing the votes cast in the mayoralty election for Mayor in the City of Williamson; praying also that relator be declared the successful candidate for Mayor of the City of Williamson; and that upon the result of the election being certified, the respondent Maynard forthwith vacate his office as mayor.

On the recount the Board found that the respondent Maynard received one thousand nine hundred sixty-two votes and the relator Hammond one thousand nine hundred forty-nine votes.

By order entered on July 2, 1952, this Court directed that the respondent, Melba Hatfield, city clerk as aforesaid, deliver to the Clerk of this Court the disputed ballots referred to in the petition as 'forty-five ballots'.When the 'disputed' ballots were delivered to the office of the Clerk of this Court, it was found that there were fifty-three ballots, instead of forty-five, as alleged in relator's petition.Of this number, five ballots, that is ballots 3, 4, and 5, PrecinctNo. 2, each marked 'Spoiled'; ballot 4, PrecinctNo. 8, and the fifth not showing any ballot or precinct number, but marked 'Not Counted.K. S.', are not to be considered in this proceeding because they are not properly in this case.Though the petition refers to forty-five disputed ballots, there are, in fact, forty-eight ballots in dispute, the three additional ballots being referred to in the record and in the petition as 'three absentee ballots'.Evidently these three absentee ballots are from PrecinctNo. 8, and are marked as ballots 5, 6, and 7, PrecinctNo. 8.Inasmuch as these ballots are referred to in the petition and the record, they should be considered in this proceeding.

The forty-eight ballots in dispute are:

Ballots 1, 2, 3, 4, and 5, PrecinctNo. 1;

Ballots 1 and 2, PrecinctNo. 2;

Ballots 1, 2, 3, 4, 5, 6, 7, 8, 9, 10, and 11, PrecinctNo. 3;

Ballots 1, 2, and 3, PrecinctNo. 4;

Ballots 1, 2, 3, 4, 5, and 6, PrecinctNo. 5;

Ballots 1 and 2, PrecinctNo. 6;

Ballots 1, 2, 3, and 4, PrecinctNo. 7;

Ballots 1, 2, 3, 5, 6, and 7, PrecinctNo. 8; and

Ballots 1, 2, 3, 4, 5, 6, 7, 8 and 9, PrecinctNo. 9.

By order entered on July 12, 1952, this Court commanded the Successor Board, consisting of the persons hereinbefore named, to convene as a board of canvassers; treat the tabulation and computation of all ballots heretofore recounted by the Board as final, except the forty-eight ballots described above; count the forty-eight ballots in dispute, as provided by the mandate of the order; make a new tabulation and computation of the votes for Mayor of the City of Williamson, based upon the recount of all the ballots upon the recount therefore conducted by the Board, exclusive of the forty-eight ballots in dispute; and certify a new declaration of the result of said election, to-wit: That in the election for mayor Hammond received one thousand nine hundred sixty-three votes, and Maynard received one thousand nine hundred sixty-one votes, a majority for Hammond of two votes.This order directed that upon the proper issuance and delivery of certificates of the result of the election for Mayor of the City of Williamson, in accordance with the mandate therein contained, the respondent, Pierce B. Maynard, forthwith vacate the office of Mayor of said City.

This opinion is written to state the views entertained by this Court, which prompted the entry of the order of July 12, 1952.

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