State ex rel. Watts v. Kelly
| Decision Date | 21 September 1954 |
| Docket Number | No. 10695,10695 |
| Citation | 83 S.E.2d 465,140 W.Va. 177 |
| Court | West Virginia Supreme Court |
| Parties | STATE ex rel. Lester W. WATTS, v. E. W. KELLY, C. B. Vickers and Guy Douglas, Commissioners of the County Court of Fayette County, Sitting as a Board of Canvassers. |
Syllabus by the Court
1. In the absence of evidence to the contrary, the acts of an election officer in the performance of a duty imposed upon him by law are presumed to have been legally performed.
2. '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 the 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.' Point 4, syllabus, State ex rel. Bumgardner v. Mills, 132 W.Va. 580 .
3. 'Irregularities in the conduct of an election, even though they constitute a violation of the election laws, not shown to have affected its result, will not vitiate an election in the absence of a showing of fraud or misconduct preventing the free expression of the will of the voters.' Point 2, syllabus, Maynard v. Hammond, W.Va. .
4. He who seeks relief by mandamus must show a clear legal right to the remedy.
Laird & Summerfield, Fayetteville, for relator.
Mahan, White & Higgins, Fayetteville, for respondents.
In this original proceeding in mandamus, the petitioner, Lester W. Watts, seeks to compel the defendants, E. W. Kelly, C. B. Vickers and Guy Douglas, Commissioners of the County Court of Fayette County, West Virginia, sitting as the board of cantrassers of that county, to reconvene and correct certain errors alleged to have been committed by the board in recounting ballots cast at the August 1954 primary election, and to reject and refuse to count the ballots cast in four precincts for the petitioner and William N. Jasper, Jr., rival candidates for the Democratic nomination for the office of member of the State Senate for the Eleventh Senatorial District composed of the counties of Fayette and Greenbrier in this State.
Upon the petition, filed August 25, 1954, a rule was issued by this Court returnable September 1, 1954, at which time the defendants filed their demurrer and answer; and this proceeding was submitted for decision upon the foregoing pleadings and the written briefs and the oral arguments in behalf of the respective parties.
The principal allegations of the petition are that the petitioner and William N. Jasper, Jr., were candidates for the Democratic nomination for the office of member of the State Senate for the Eleventh Senatorial District, composed of Fayette and Greenbrier Counties, at the primary election held on August 3, 1954; that after the votes cast at such primary election had been canvassed by the board of canvassers of Fayette County each of the candidates demanded a recount of certain precincts; that upon such recount, as appears from the election records, the election commissioners and the poll clerks who served as such at Precinct No. 9, Oak Hill, Precinct No. 13, Oak Hill, and Precinct No. 21, Harvey, were not sworn and that such election officers did not subscribe the oath required by Section 16, Article 4, Chapter 3, of the Code of West Virginia, 1931; that it appears, from the election records, that at Precinct No. 10, Oak Hill, the election officials who served at that precinct did not certify the number of votes cast for the candidates of the Democratic party and of the Republican party; that it also appears, from the election records at Precinct No. 13, Oak Hill, that the seal was broken on the package containing the ballots cast at such precinct when such package was presented to the board of canvassers during the recount, and that, for that reason, fraud and misconduct occurred in such primary election at that precinct; that the board of canvassers committed error in overruling the motions of the petitioner to reject and not to count the ballots cast at Precinct No. 9, Oak Hill, Precinct No. 13, Oak Hill, and Precinct No. 21, Harvey, and in permitting a recount of the ballots cast at Precinct No. 10, Oak Hill, in Fayette County; that the official canvass of the votes cast at such primary election in Fayette and Greenbrier Counties, comprising the Eleventh Senatorial District, shows that the petitioner received 62 votes less than the votes received by William N. Jasper, Jr., for the office of member of the State Senate in that senatorial district; and that if the relief sought by the petitioner is granted the result of the primary election in Fayette County will be changed to the extent that the petitioner will obtain the nomination as the Democratic candidate for that office in that district.
By their answer the defendants, admitting certain allegations and denying certain other allegations of the petition, deny the allegations of the petition that the election officers at Precinct No. 9, Oak Hill, Precinct No. 13, Oak Hill, and Precinct No. 21, Harvey, in Fayette County, were not sworn as such election officials, but no evidence was introduced by the petitioner in support of his allegations that the election commissioners and the poll clerks at those precincts were not sworn.
The material facts, except those alleged in the foregoing pleadings bearing upon the question whether the election commissioners and the poll clerks at Precinct No. 9, Oak Hill, Precinct No. 13, Oak Hill, and Precinct No. 21, Harvey, in Fayette County, were sworn, are undisputed and the questions presented are questions of law.
To sustain his contention that the defendants, sitting as the board of canvassers of Fayette County, should have rejected and refused to count the ballots cast at the foregoing three precincts the petitioner cites the case of State ex rel. Revercomb v. Sizemore, 124 W.Va. 700, 22 S.E.2d 296. In that case with respect to the seven precincts at which the votes cast were assailed as invalid it appeared that in some instances a poll clerk administered the oath prescribed for election officers by Section 16, Article 4, Chapter 3, Code, 1931, although a poll clerk is not authorized to perform that function; that in some instances at those precincts the names of the election officers were not properly subscribed in the space provided for that purpose; that in other instances the person who administered the oath failed to sign the jurat; and that in other instances the names of the election officers were improperly inserted in the form provided for such oath. The opinion states that all the election officers who served in the precincts at which the assailed votes were cast took the statutory oath before someone who was believed to have possessed the authority to administer such oath, and that the provision of Section 16, Article 4, Chapter 3, Code, 1931, requiring election officers to take and subscribe the oath prescribed by the statute, is mandatory.
Notwithstanding the irregularities which were shown to have occurred at the precincts involved in the Revercomb case and the mandatory character of the statutory provision, requiring election officers to take and subscribe the prescribed oath, this Court held that in the absence of fraud or misconduct which prevented a free expression of the will of the voters, the failure of election commissioners and poll clerks to take and subscribe the oath required by the statute will not vitiate an election conducted by such officers. In the opinion this Court said: ...
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