State ex rel. Patrick v. County Court of Hancock County

• Decision Date: 04 February 1969
• Docket Number: No. 12796,12796
• Citation: 152 W.Va. 592,165 S.E.2d 822
• Parties: STATE ex rel. Ralph J. PATRICK, Jr., etc. v. The COUNTY COURT OF HANCOCK COUNTY, a Corporation, etc., et al., Commissioners, etc., and Lou Smoleski, etc., and Joseph H. Manypenny, etc.
• Court: West Virginia Supreme Court

Page 822

165 S.E.2d 822

152 W.Va. 592

STATE ex rel. Ralph J. PATRICK, Jr., etc. v. The COUNTY COURT OF HANCOCK COUNTY, a Corporation, etc., et

al., Commissioners, etc., and Lou Smoleski, etc.,

and Joseph H. Manypenny, etc.

No. 12796.

Supreme Court of Appeals of West Virginia.

Submitted Jan. 8, 1969.

Decided Feb. 4, 1969.

Syllabus by the Court

1. The statutes of West Virginia relating to public elections require for validation of a ballot, other than absentee and challenged ballots, that it be signed on the back by two poll clerks receiving, who must be of opposite political parties. Therefore, ballots are void if they are signed only by one poll clerk receiving and one commissioner or only by two commissioners, even though the person signing other than poll clerks receiving are election officials and signed the ballots with the full consent and approval of all the election officials.

2. Where a double board is appointed the two boards have completely separate functions. One board is a receiving board and the other board is a counting board. The counting board is not required to attend the voting precinct until three hours after the polls are opened by the receiving board, but upon arrival its sole duty is to count and tabulate the votes in a partitioned room or space in the voting place.

3. '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.' Pt. 6, syllabus, State ex rel. Bumgardner v. Mills, et al., 132 W.Va. 580 (53 S.E.2d 416).

4. The test to determine who the poll clerks receiving are in any given precinct is to ascertain for what position and what board, if a double board, the oath was taken and recorded on the poll book because different oaths are required for the commissioners and poll clerks, and if there is a double board only the clerks of the receiving board have power to sign the ballots.

5. If election officers fail to appear at the voting place the remaining commissioners shall select the missing commissioner or clerk as the case may be and where this is done and it is shown that any such people were so appointed and qualified as poll clerks receiving and took the proper oath they would be qualified to act as such.

6. Election officers cannot perform whatever duties they desire or think are necessary without being properly selected and qualified. In order to validate the ballots by signature the election officer must have qualified as a poll clerk of the receiving board where there are two boards, or of the one board if there is a single board.

7. Where a board of canvassers recounts the votes cast at an election, and in such recount counts illegal ballots for a candidate, ascertains the result and adjourns, such board may be compelled by a mandamus proceeding, instituted at the relation of the opposing candidate who is thus defeated for election, to reconvene and correct any such recount.

8. Evidence of fraud or any other like matter which involves extrinsic evidence is not admissible before a board of canvassers on a recount and can be presented only at election contest proceedings.

Pinsky, Mahan, Barnes & Watson, Frank Cuomo, Jr., Wellsburg, for relator.

Edward A. Zagula, Pros. Atty., Weirton, for County Court, Hancock County.

Frank A. Pietranton, Weirton, for Smoleski.

BERRY, Judge:

This is an original proceeding in mandamus instituted in this Court on December 27, 1968 by the petitioner, Ralph J. Patrick, Jr., who was the Republican nominee for the office of sheriff of Hancock County, West Virginia, against the respondents who are the County Court of Hancock County, West Virginia, a corporation, Jack Evans, Edward Nogay and William C. Graham, the members thereof at the time of the institution of this proceeding in this Court, and Joseph H. Manypenny who was elected a member of the county court as successor to Jack Evans and who took office January 1, 1969, after the institution of this proceeding, said men acting as the board of canvassers of Hancock County, and against Lou Smoleski, the Democratic nominee for the office of sheriff of Hancock County, who had been certified as elected by the county court acting as a board of canvassers. The petitioner prays that a writ be awarded commanding the respondents to reconvene as a board of canvassers and declare certain ballots cast in precinct 32 of Hancock County void and to certify the election of Ralph J. Patrick, Jr., the petitioner, as the duly elected sheriff of Hancock County, West Virginia.

After the filing of the petition this Court issued a rule returnable January 8, 1969 at which time the case was submitted for decision upon arguments and briefs with permission granted the attorneys for the respective parties to file supplemental briefs, all of which have been duly filed.

Answers were filed by the respondents, the County Court of Hancock County in the capacity of a board of canvassers and by respondent Lou Smoleski. Separate replications were filed by the petitioners to the separate answers and a combined demurrer to both answers. There was also filed a transcript of the evidence taken before the board of canvassers and stipulations by the parties.

The only question involved in this proceeding is whether all or part of the ballots cast in precinct 32 of Hancock County are void because they were not signed by two qualified poll clerks as required by law. Code, 3--1--34, as amended. The board of canvassers of Hancock County after a recount certified the respondent Lou Smoleski to be the duly elected sheriff of Hancock County on December 19, 1968 as having 9,228 votes cast for him, and 9,201 votes cast for the petitioner Ralph J. Patrick, Jr., giving a majority of 27 votes to the respondent Smoleski.

There were 776 ballots cast in precinct 32 of Hancock County of which 45 votes were not contested in this proceeding because they were either absentee or challenged ballots which do not require the signature of the poll clerks, or no vote was cast for sheriff or the ballot was admittedly improperly endorsed, leaving 731 ballots which are the subject of litigation.

It is admitted by the parties in the pleadings and is shown in the transcript of the proceedings had before the board of canvassers on the recount of precinct 32, which was filed in this Court without objection or was by agreement to be considered in this proceeding, that four precinct workers in various combinations of two persons signed all of the 731 ballots in the space for the poll clerks to sign; and of these ballots the board of canvassers certified that the petitioner, Ralph J. Patrick, Jr., had received 304 votes and the respondent Smoleski 449 votes. A double board was appointed for precinct 32 as required by law, Code, 3--1--28, as amended, and all ten appointed election officers consisting of the receiving board and the counting board were present and acted in some capacity during the entire day of the election.

Although it appears, and is admitted by the pleadings, that some of the election officers were appointed in one capacity but acted in another, we are concerned with only four of the election officers in this proceeding who signed the ballots in different combinations of two purporting to be poll clerks receiving, who are: Sarah K. Crain, a Republican, who was appointed as clerk receiving, accepted office as poll clerk receiving, performed the duties as poll clerk receiving and took the oath as clerk receiving; Irene Martin, a Democrat, who was appointed as clerk counting, accepted the office of clerk counting, performed the duties of clerk receiving and took the oath of clerk receiving; Carole Ann Martaus, a Democrat, who was appointed as a clerk receiving, accepted the office as a poll clerk, performed at some time the duties of clerk receiving, and took the oath as commissioner receiving; Alma Bess, a Republican who was appointed as commissioner receiving, accepted as 'commissioner', performed at some times the duties as clerk receiving, and took the oath as commissioner receiving. The number of contested ballots signed by Sarah K. Crain and Irene Martin in precinct 32 and counted for the respondent was 255 and the number counted for the petitioner was 191. The number of contested ballots signed by Carole Ann Martaus and Alma Bess and counted for the respondent was 111 and for the petitioner 53. The number of contested ballots signed by Alma Bess and Irene Martin and counted for the respondent was 47 and for the petitioner 36, and the number of contested ballots signed by Sarah K. Crain and Carole Ann Martaus was 24 for the respondent and 14 for the petitioner.

It will be noted that of the four only Sarah K. Crain and Irene Martin of opposite political parties took the oath as clerk receiving. This is admitted by the respondents in their pleadings and appears in the poll book as the oath taken in each instance. It also was admitted in the pleadings that the four election officers involved in signing the ballots as purported poll clerks receiving...