State v. Smith
| Decision Date | 15 January 1929 |
| Docket Number | 6438. |
| Parties | STATE ex rel. LAMBERT v. SMITH et al., Board of Canvassers of Nicholas County. |
| Court | West Virginia Supreme Court |
Submitted December 11, 1928.
Syllabus by the Court.
Points 1 and 2, syllabus, Frazier v. Board, 79 W.Va. 425, 92 S.E 99, point 2, syllabus, Hatfield v. Board, 98 W.Va 41, 126 S.E. 708, and point 5, syllabus, State ex rel Johnson v. Board of Canvassers of Kanawha County, 102 W.Va. 703, 136 S.E. 772, applied.
Placing an X before the name of the first presidential elector does not constitute a vote for each party candidate, but only for said elector.
Where absent voters' ballots do not bear the signature of the poll clerks, but are properly authenticated and identified by the seal and signature of the clerk of the circuit court, the party seeking to attack the validity of such in respect to the filing of the affidavits required by statute, bears the burden of showing that the statute was not complied with.
(Additional Syllabus by Editorial Staff.)
Where voters placing an X before names of several candidates on Democratic and Republican tickets marked out the name of the Democratic candidate for sheriff and over that name wrote the name of the Republican candidate, the ballots were properly counted for Republican candidate.
Where there were only two candidates for the office of sheriff, those on the Democratic and Republican tickets, ballot having an X in the circle at the head of the Republican ticket constituted a vote for the Republican candidate, though there was an X placed in the square to the left of blank space for sheriff's office on the Workers' ticket.
Where ballot containing X in circle at head of Republican ticket had horizontal lines drawn through name of Republican candidate for sheriff and other officers, with X in the squares to the left of blanks for such offices in Workers' ticket, it was properly counted for Democratic candidate for sheriff; there being only two candidates, those on the Democratic and Republican tickets.
Ballot with an X in the circle at the head of the Democratic ticket and to the right of name of Democratic candidate for sheriff and also an X on the Republican ticket before the name of the Republican candidate for sheriff was improperly counted for Republican candidate.
Ballot marked as a vote for both Democratic and Republican candidates for sheriff was properly not counted for either, though there was an X in the circle at the head of the Republican ticket as well as to the left of the eight presidential electors and all other candidates on Republican ticket, with one exception.
Ballot containing an X in the circle at the head of the Republican ticket, which bore evidence of erasure, and also an X in the circle at the head of the Democratic ticket, was properly counted for Democratic candidate for sheriff.
Ballot containing X in front of names of each candidate on Democratic ticket with no markings on Republican ticket was properly counted for Democratic candidate for sheriff, though X in front of his name was blurred.
Ballot marked with an X in circle at head of both the Republican and Democratic tickets, with signs of erasure at the head of the Democratic ticket, was properly counted for Republican candidate.
Ballot containing an X in the circle at the head of the Republican ticket with vertical line through all candidates beginning with the name of the vice presidential candidate and also marked by vertical lines extending throughout length of the other tickets was properly not counted for either candidate for sheriff.
Ballot containing an X before names of several Democratic candidates, but with no marking for sheriff on either ticket, was properly not counted for either candidate for sheriff.
Ballot containing vertical line through entire Republican ticket and X at head of Democratic ticket, with a vertical line through that portion including name of candidate for sheriff, was properly not counted for sheriff.
Ballot marked at head of Democratic ticket with vertical line drawn through certain names, including that of candidate for sheriff, was properly not counted for sheriff.
Ballot containing an X in front of name of Democratic candidate for sheriff and also a line drawn through his name and a line drawn through name of the other candidate for sheriff and through the Republican ticket was properly not counted for sheriff.
Ballot containing markings on both Republican and Democratic tickets, but not marked for either candidate for sheriff, was erroneously counted for Democratic candidate.
Ballot containing an X in circle at head of Republican ticket, with markings for certain candidates on Democratic ticket, held properly counted for Republican candidate for sheriff.
Original mandamus by the State, on the relation of Ray Lambert, against Otto Smith and others, constituting the Board of Canvassers of Nicholas County. Writ granted.
See, also, 147 S.E. 484.
Emmett Horan, of Summersville, A. F. McCue, of Fairmont, and M. F. Matheny, of Charleston, for relator.
Jno. T. Simms, of Charleston, E. H. Morton, of Webster Springs, 0. C. Lewis, of Summersville, F. N. Alderson, of Richwood, and A. N. Breckenridge, of Summersville, for respondents.
On a canvass of the returns of the election held in Nicholas county on November 6, 1928, for the office of sheriff, W. E Morton, Democrat, received 3,795 votes and Ray Lambert, Republican, 3,776 votes. Lambert, together with the Republican candidates for prosecuting attorney, commissioner of the county court, and member of board of education in one district, demanded a recount. A total of 210 ballots were questioned by the several candidates during the progress of the recount. These ballots, pursuant to an agreement entered into between the candidates at the beginning of the recount for the four foregoing offices, were laid aside, and taken up and considered last. The recount closed on November 27th; Morton and Lambert having a total of 3,794 votes each. The board, however, did not declare the result on that day, but adjourned over to December 3d, at which time the 210 ballots in dispute were again recounted, and Morton declared elected by a majority of 12 votes, and a certificate of election issued to him. Indorsements were made on the backs of the respective ballots on December 3d, showing how each had been counted on that day, together with additional notations as to how they had been counted on November 27th.
The present proceeding was instituted to compel the board of canvassers to reconvene and to properly count certain ballots as required by law, to declare relator to have a majority of all the votes cast for the office of sheriff of said county, and to issue to him a certificate of election to said office. Relator attacks 50 of the 210 ballots aforesaid, claiming that the board, over his objection, improperly counted certain of them for Morton, and rejected and refused to count certain others for him. According to his contention, if the same had been counted as required by law, he (Lambert) would have a majority of all the votes cast for said office of sheriff. Respondent Morton's answer and return to the alternative writ defends the board's action in regard to the count complained of by relator and brings 52 additional ballots from the 210 into question. Of the remaining 108 of the 210 ballots aforesaid there is no question between the parties to the present proceeding. Out of that number Lambert received 45 and Morton 45. Relator on the day of the hearing in this court stated that for a basis of arriving at the result of the election the court should assume that Morton had 3,745 and Lambert 3,733 votes, exclusive of said 210 ballots which were presented in open court. And this was agreed to by counsel for respondent in open court.
In section 34, c. 3, Code, certain methods of marking a ballot are prescribed, by the use of which a voter may declare his intention. However, these methods are not exclusive, and a failure to strictly observe them will not necessarily render a ballot invalid, if the voter's intention can be determined by an inspection of his ballot when cast. State ex rel. Johnson v. Board of Canvassers of Kanawha County, 102 W.Va. 703, 136 S.E. 772; Hatfield v. Board of Canvassers, 98 W.Va. 41, 126 S.E. 708; Shore v. Board of Canvassers, 64 W.Va. 705, 63 S.E. 389. Under the statute, if a voter desires to vote a straight ticket, he may do so by placing a cross in the circle under one of the party emblems, by defacing the tickets other than the one desired to be voted by him, or by placing an X before the names of every candidate on a particular ticket. And, if he desires to vote a mixed ticket, or, in other words, for candidates of different parties, the statute provides certain rules whereby he may indicate such an intention. In so voting he has the privilege of voting for one candidate for each office, regardless of the ticket upon which the candidate's name appears, or for a candidate for one office, and for none other, if he cares to vote for but one.
Among the contested ballots are 19 which have but one mark--an X in the square to the left of either the first Republican or first Democratic presidential elector; 6 such were counted as straight Republican tickets and counted for relator, and 13 as straight Democratic tickets and counted for respondent Morton. Morton contends that it was the clear intention of the voters of this group to vote a straight ticket. Can we say that placing an X in front of the name of the first presidential elector, or before all of the presidential electors on either one of the foregoing tickets carries an intent to vote the straight ticket? In the case of Frazier...
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