State ex rel. Revercomb v. Sizemore
| Decision Date | 29 September 1942 |
| Docket Number | 9402. |
| Citation | 22 S.E.2d 296,124 W.Va. 700 |
| Parties | STATE ex rel. REVERCOMB v. SIZEMORE et al. |
| Court | West Virginia Supreme Court |
Lee Blessing & Steed, of Charleston, and E. G. Pierson, of Clay, for petitioner.
Eakle & Eakle and Henry McLane, all of Clay, and Randolph Bias of Williamson, for respondents.
Relator filed his original petition in mandamus seeking a writ requiring the County Court of Clay County, as ex officio canvassing board of such county, to reassemble and rescind an order entered on August 21, 1942, rejecting the entire vote cast in seven precincts in Clay County in the primary election of August 4, 1942, and in lieu thereof to include such vote in its certification of the result of said election, in Clay County.
The names of relator, respondent, Raymond J Funkhouser, and John L. Gillespie appeared on the Republican party ballot as candidates for the nomination for the office of United States Senator, in the aforesaid primary election. The canvassing board of Clay County held a recount upon the demand of Funkhouser and, on August 12, 1942, upon completion thereof entered an order declaring that in Clay County Revercomb had received five hundred ninety-one votes Funkhouser, one hundred twenty, and Gillespie, eighty-eight. Funkhouser thereupon objected to the counting of any votes in Precincts Nos. 6, 14, 15, 17, 18, 31 and 37, because of certain irregularities disclosed by the records of those precincts and revealed during the recount, and moved the board to reject such votes. Revercomb then moved the board to summon the election officers from the said precincts for examination before the board.
From the testimony of the election officers summoned and the exhibits with the record, it appears that the irregularities and omissions upon which the Funkhouser motion was based relate to the oath of the election officers and the affidavit of such officers showing that they had been sworn as required by statute. Summarized, these irregularities include the following:
(a) In some instances a poll clerk administered the prescribed oath (Code, 3-4-16) for election officers, although poll clerks are not authorized to perform such a function.
(b) Regarding the affidavit of the election officers, it appears that in some precincts the name of the affiant was not properly subscribed in the space provided therefor, though affiant's name did appear in the body of the affidavit; in other instances, the person who administered the oath failed to sign the jurat; and in still other instances the name of affiant was improperly inserted in the oath form.
It appears, however, that all election officers in the seven precincts took the oath prescribed by statute, before someone believed to be possessed of authority to administer the same.
On the 21st of August, the board sustained the motion made by Funkhouser to reject the entire vote in the seven precincts questioned.
The effect of this action of the board is that relator lost 119 votes and respondent Funkhouser 14 votes in Clay County.
The petition herein alleges that the objection raised by Funkhouser does not charge that the election officers did not properly discharge their duties, or that there was fraud or misconduct at any of the seven precincts, or that the free will of the voters was not exercised, and asserts that the irregularities complained of cannot vitiate the election or give cause for the discard of the vote cast, in the absence of such charges.
Respondents' demurrer to the petition assigns as its sole ground that the petition does not allege that relator will be benefited by the award of the writ, or that he will be prejudiced by a denial thereof, based upon the argument that mere personal satisfaction of a candidate in knowing that he has received more votes than an opponent, unless the result of the election is changed, will not afford a basis for award of the relief sought. Respondents' answer, briefly, asserts that Code, 3-5-11, is mandatory in its requirement that the officers be sworn, and since the record shows that all of the election officers at the seven precincts were not under oath properly to discharge their duties, they could not receive votes or conduct elections, and that if unsworn officers are permitted to act, misconduct and fraud are invited.
Relator's demurrer to the joint answer points out that the irregularities mentioned do not constitute grounds for the rejection of votes cast, in the absence of evidence of fraud resulting therefrom, or that such irregularities were for the purpose of perpetrating fraud upon the voters; also, that Code, 3-5-11, is not mandatory in the sense that failure of election officers to observe the same will vitiate the election after the same has been conducted.
Noncompliance with the statute requiring the oath of the election officers, even if the same is mandatory, will not vitiate an election in the absence of fraud or misconduct. In view of the fact that the...
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