Taylor v. Bd. Of Canvassers Of Mineral County., (No. 8533)

• Decision Date: 02 November 1937
• Docket Number: (No. 8533)
• Citation: 119 W.Va. 378
• Court: West Virginia Supreme Court
• Parties: Harry R. Taylor, Relator v. Board of Canvassers ofMineral County et al., Respondents.

119 W.Va. 378

Harry R. Taylor, Relator

v. Board of Canvassers ofMineral County et al., Respondents.

(No. 8533)

Supreme Court of Appeals of West Virginia.

Submitted September 1, 1937.

Decided November 2, 1937.

1. Elections

A certificate of result properly sealed and delivered to the clerk of a county court will ordinarily be conclusive on the official canvass of the returns of an election. However, where the several certificates required by Code, 3-5-32, 3-4-18, are delivered with the other records of election in a certain precinct to the office of the county clerk, and a material contradiction between the certificate in the hands of the clerk and one or more of the certificates as to the vote for a particular candidate is brought to the attention of the board, the certificates of result of said precinct must all be disregarded in so far as the vote of the particular candidate is concerned.

2. Elections

The ballots cast at an election lose their integrity and cannot be regarded as the primary and highest evidence of the result of the election, where they have been turned over to the county clerk's office without being sealed as required by Code, 3-5-32. Upon canvass, the statutory test is the opportunity to tamper with the ballots and not actual evidence of tampering.

3. Elections

In case the certificates of result of an election are successfully challenged, the ballots are the primary and highest evidence of the result, provided they have not lost their integrity. Where, however, the certificates of result are contradictory, and the ballots have lost their integrity, the tally sheets may be looked to upon a canvass of the returns of an election to determine the vote for a particular candidate.

4. Mandamus

A writ of mandamus will never be granted where, if issued, it would prove fruitless and unavailing.

Kenna, President, absent.

Original mandamus proceedings by Harry R. Taylor against the Board of Canvassers of Mineral County and others.

Writ denied.

Harry K. Drone, for relator.

Arthur Arnold, W. Elliott Nefflen, Lester Reynolds and Charles Ritchie, for respondents.

Riley, Judge:

This is a proceeding in mandamus to compel respondents, Clyde Boner, president, and Thomas W. Cannon and J. Frank Junkins, commissioners of the county court of Mineral County, and as such constituting the board of canvassers of said county, to reconvene as such board and to correct certain alleged errors in the official canvass of the vote, cast November 3, 1936, for the office of prosecuting attorney, and to declare relator, Harry R. Taylor, duly elected to said office.

On the morning after the election, relator, upon the face of the unofficial tabulation of returns from the twenty-four precincts of the county, had a majority of ninety-nine votes over his opponent, Vernon E. Rankin. The totals from New Creek No. 5, as included in said tabulation, for prosecuting attorney, were, Taylor 332 and Rankin 451. This was in accord, with the certificate of result then in the hands of the clerk of the county court. Counsel for Rankin, upon noticing that the total vote cast for prosecuting attorney was approximately one hundred less than for other county offices, and that Rankin was trailing other candidates of his own party by a like number, called the matter to the clerk's attention; and, thereupon, the latter went to an unlocked canvass bag, which contained the ballots unsealed and other records from New Creek No. 5. and took therefrom four additional certificates of result, each being properly authenticated, as required by law. Three of these certificates gave Rankin 551 and the fourth 451. A sixth certificate, which had been posted at the voting precinct, carried Rankin's vote as 451. Rankin's vote, according to both tally sheets, was 551, the totals appearing in both words and figures.

The board met November 9th to canvass the returns, and due to the self-contradiction of the several certificates of result, as noted above, directed that the records of New Creek No. 5 be placed initially before it. At that time the relator moved that the board look to and recount the ballots of said precinct as a part of the canvass, in which motion Rankin later joined. The canvass of this precinct, in so far as it related to the office of prosecuting attorney, was discontinued until after the completion of the canvass of the other precincts. Although Taylor claims to have made a timely withdrawal of his request for a recount of New Creek No. 5, the board proceeded to recount the same, the result being Rankin 547 and Taylor 324. Upon the completion of the canvass of the twenty-four precincts, Rankin had a majority of five over the relator.

Looking at the case from the angle most favorable to relator, i.e., that his motion was withdrawn and that the board proceeded to count on its own motion, his right to the writ depends upon (1) the rejection of the entire vote of New Creek No. 5, or (2) the acceptance of the certificate of result in the hands of the clerk on the morning following the election as conclusive on the number of votes received by each of the candidates for office of prosecuting attorney, and controlling on the canvass. In either event he would have a substantial majority.

No showing has been made which would warrant throwing out the precinct in toto. It is, however, quite apparent from the evidence before us that the ballots of precinct No. 5 were not preserved as required by law not sealed and therefore have lost their integrity. The ballots...