State v. Hager

• Decision Date: 14 December 1926
• Docket Number: 5891.
• Citation: 136 S.E. 263,102 W.Va. 689
• Parties: STATE ex rel. HALLANAN v. HAGER, President, etc., Ex Officio Board of Canvassers of Boone County.
• Court: West Virginia Supreme Court

136 S.E. 263

102 W.Va. 689

STATE ex rel. HALLANAN v. HAGER, President, etc., Ex Officio Board of Canvassers of Boone County.

No. 5891.

Supreme Court of Appeals of West Virginia.

December 14, 1926

Submitted December 8, 1926.

Syllabus by the Court.

The duties imposed upon election officers by mandatory statutes are personal and cannot be delegated. The rule of facit per alium facit per se does not apply.

The determination of the wisdom or expediency of statutes is a legislative and not a judicial function.

Parts 1, 2, 3, and 4 of the syllabus of Kirkpatrick v. Deegans, 53 W.Va. 275, 44 S.E. 465 applied.

Proceedings by the State, on the relation of Walter S. Hallanan, for mandamus to be directed to A. G. Hager, President, and others, ex officio Board of Canvassers of Boone County, and another. Writ awarded.

T. C Townsend, M. F. Matheny, and H. D. Rummel, all of Charleston for petitioner.

Henry S. Cato and W. E. R. Byrne, both of Charleston, A. W. Garnett, of Madison, and Clyde B. Johnson, of Charleston, for respondents.

HATCHER J.

At the general election held November 2, 1926, Walter S. Hallanan and Clyde B. Johnson were the respective candidates of the Republican and Democratic parties for the office of state Senator in the eighth senatorial district.

At precinct No. 6 of Sherman district, in Boone county, Hallanan received 10, and Johnson 36 votes. J. E. Scott, Democrat, and J. E. Schoolcraft, Republican, were the poll clerks at that precinct. Scott signed the name of Schoolcraft to all the ballots, except two on constitutional amendments. For that reason, Hallanan seeks, in this proceeding, to compel the board of canvassers to reject all such improperly signed ballots in the recount of the vote of said county.

The evidence shows that there was no Republican poll clerk at that precinct when the polls should have been opened, and that there was considerable trouble and delay in securing one. Several who were requested refused to act. Between 8 and 9 o'clock that morning, the Republican commissioner, W. T. Compton, went to Scholcraft, explained the situation, and insisted that he serve as a clerk. Schoolcraft is afflicted with palsy and writes with difficulty. On entering the polls, he stated that he could not write. Scott then offered to sign Schoolcraft's name to the ballots. This offer was accepted by Schoolcraft and approved by the other election officials. Thereupon Scott signed Schoolcraft's name, as well as his own, to all the ballots, except two relating the constitutional amendments which Schoolcraft signed personally.

Section 36, c. 3, Code of 1899, directed that the words "poll clerks" be printed on the back of all ballots, and that under those words each poll clerk write his name before the ballot should be delivered to the voter. Section 66 of the same chapter declares:

"Any ballot which is not endorsed with the names of the poll clerks, as provided in this chapter, shall be void and shall not be counted."

These statutes were construed by this court in Kirkpatrick v. Deegans, 53 W.Va. 275, 44 S.E. 465. It was there held that they were mandatory, that each poll clerk must personally sign his name to the ballots, and that all ballots not so signed should be rejected. Judges Brannon and McWhorter dissented. Judge Brannon later became reconciled to the decision, as he cited it with approval in Stafford v. Sheppard, 57 W.Va. 84, 50 S.E. 1016. Since then it has been approved in Senter v. Board, 64 W.Va. 499, 63 S.E. 284; State v. Heatherly, 96 W.Va. 685, 123 S.E. 795; State ex rel. Hatfield v. Farley, 97 W.Va. 695, 126 S.E. 413; and Hatfield v. Board, 98 W.Va. 41, 126 S.E. 708. The word "personally" was inserted in the statute by an amendment made in 1908. It now reads:

"Each poll clerk shall personally write his name in ink."

Under established rules, it thus appears that the Legislature has accepted the construction placed upon the statute by this court. Our construction and the statute have become one. That construction is therefore no longer an open question in West Virginia. Kelley v. Bowman, 68 W.Va. 49, 69 S.E. 456. We are much surprised at the repeated statement of counsel for the respondents to the effect that this court, in following the Kirkpatrick Case, is treading a judicial pathway alone. The decision in that case is not based on any new or radical principle. It stands four square on established rules of construction. Statutes similar in form to those under consideration have been held mandatory by all the decisions and authorities which we have investigated, from the earliest recorded cases to the latest reports. In the old English case of Pearse v. Morrice, 2 Ad. & E. 96, it was held:

"The distinction between directory and imperative statutes has long been known. *** a clause is directory where the provisions contain mere matter of direction and nothing more; but not so where they are followed by such words as are used here, viz., that anything done contrary to such provisions shall be null and void to all intents. These words give a direct, positive, and absolute prohibition which cannot be dispensed with."

While some courts have not accepted fully the description of a directory statute given in the English case, all concur in its specification of one that is mandatory.

"It is an established rule of construction that where a legislative provision is accompanied with a penalty for failure to observe it, the provision is mandatory. It would offend against the plain and unmistakable meaning of such a statute to otherwise construe it." Cramer's Case, 248 Pa. 208, 216, 93 A. 937, 940 (Ann.Cas. 1916E, 914).

"If the statute provides that ballots which fail to conform to certain requirements shall not be counted, the command is imperative." Lewis Sutherland Statutory Construction (2d Ed.) par. 709, p. 1290; 10 A. & E. Ency. Law, 726; 25 R.C.L. 772, par. 19; 20 C.J. 181, par. 223.

In Newhouse v. Alexander, 27 Okl. 46, 110 P. 1121, 30 L.R.A. (N. S.) 602, Ann.Cas. 1912B, 674, Kirkpatrick v. Deegans, supra, was quoted with approval as based on "an exhaustive review of the authorities." Other later decisions affirming the same principle announced in the Kirkpatrick Case are: Rhodes v. Driver, 69 Ark. 501, 64 S.W. 272; Miller v. Schallern, 8 N. D. 395, 79 N.W. 865; People ex rel. Nichols v. Board, 129 N.Y. 395, 29 N.E. 327, 14 L.R.A. 624; Turner v. Teller (Tex.Civ.App.) 275 S.W. 115; Slaymaker v. Phillips, 5 Wyo. 453, 40 P. 971, 42 P. 1049, 47 L.R.A. 842; McKay v. Minner, 154 Mo. 608, 55 S.W. 866; Parvin v. Wimberg, 130 Ind. 561, 30 N.E. 790, 15 L.R.A. 775, 30 Am.St.Rep. 254; Neal v. Odle, 308 Ill. 469, 140 N.E. 31; Kelso v. Wright, 110 Iowa 560, 81 N.W. 805. See, also, annotation, page 48, Ann.Cas. 1918A. Instead of Kirkpatrick v. Deegans being an exceptional case, we find it surrounded by a goodly host of decisions which no authority has had the temerity to attack.

Counsel for respondents argue that the signing of Schoolcraft's name on the ballots by Scott, at the direction of and in the presence of Schoolcraft, was in legal effect, the personal signature of Schoolcraft and constitutes a substantial compliance with the statute. We are referred to the law upholding the right of a principal to delegate to his agent authority to sign his name to contracts, deeds, etc. This is the same argument advanced by Judge Brannon in Snodgrass v. County Court, 44 W.Va. 56, 29 S.E. 1035, but which he later abandoned in Stafford v. Sheppard, supra. In the Snodgrass Case, Judge Brannon cites Sutherland St., par. 454 (par. 627, 2d Ed.) to support his theory that "fairly substantial compliance is sufficient." That citation is inapposite. It states:

"Mandatory statutes are imperative; they must be strictly pursued. *** Where legislation points out specifically how an act is to be done, *** it must be strictly pursued."

An effective answer to the contention of counsel is found in the opinion of Rhodes v. Driver, supra, where the court discusses a statute requiring at least one of the election judges to write his name or initials on the back of the ballots:

"There is good reason why the judge should be required to indorse his own name. Then he can swear to his own signature, and, if he be dead, or out of reach, in case of contest, and the ballot be called in question, other witnesses can be called to identify his signature. But if each judge indorses the other's initials and not his own, then there are no indorsements as the law provides, and no witnesses of identification to the actual signature, and the very purpose of the law-to prevent spurious ballots, to prevent conspiracies and combinations among the judges themselves, to make each a check upon the other-is frustrated. *** If the statutory mode is not pursued, then there can be no compliance with the provision at all. It is a dead letter. For, if one judge could write the other judge's name, in departure from the statutory requirement, why not the sheriff, or his deputy or any one of the clerks do the same? The rule of facit per alium facit per se does not apply to election officers. Each must perform his own duty."

Further answer appears in the elaborate discussion of Judge Poffenbarger, commencing on ...