Williamson v. Musick.
| Decision Date | 13 February 1906 |
| Citation | 60 W.Va. 59 |
| Court | West Virginia Supreme Court |
| Parties | Williamson v. Musick. |
1. Appeal Decisions Renewable Election Contests.
This Court has jurisdiction, upon writ of error, to review the final order of a circuit court in an election contest for a county office, where it is shown that the value of the office is greater than one hundred dollars. (p.61.)
2. Elections Election Contest Constitutional Law Appeal.
The part of chapter 80 of the acts of the legislature of 1901 which provides for an appeal, by either party, from the final order or decision of the county court in an election contest for a county or district office, to the circuit court and a trial de novo in that court, is constitutional. (p. 61.)
3. Same Returns Rejection.
Before the certificate return of the result of an election, made by the commissioners, can be rejected on the ground of fraud in the conduct of the election, it must appear that the proceedings in the conduct thereof were so tainted with fraud as to change the result, or that the truth cannot be deduced from the return. (p. 65.)
4. Same Irregularities.
Irregularities in the conduct of an election are generally to be disregarded, unless the statute declares that they shall be fatal to the election, or unless they are such in themselves as to change, or to render it impossible to ascertain the result. (p, 66.)
5. Same.
As a general rule, when the true result of a legal election has been ascertained, or can be ascertained, by the officers charged with the performance of the duty, no irregularity, mistake, or even fraud, committed by any of the officers conducting the election, or by any other person, will render the election void. (p. 66.)
6.Same Certificate Return Conclusiveness.
Where, upon the trial of an election contest for a county office, it appears that the ballots cast at an election precinct have been tampered with, after the return by the commissioners of election, and that part of the ballots are void because one poll clerk, had signed thereon the names of both poll clerk, and that the remainder of the ballots are not void for want of proper signing by both poll clerks, and that the certificate return of the result of the election made by the commissioners thereof is not otherwise impeached, the ballots will not prevail over the certificate return as evidence of the result of the election at that precinct. (p. 69.)
Error to Circuit Court, Mingo County.
Proceeding by H. H. Williamson against E. E. Musick to contest the election of sheriff. Judgment for contestee, and Williamson brings error.
Reversed.
Sheppard & Goodykoontz, Harry Scherr, Mollohan, McClintic & Mathews, Charles E. Hogg, S. U. G. Rhodes and Williams, Scott & Lovett, for plaintiff in error.
H. K. Shumate, Stokes & Bronson, Holt & Duncan and J. L. Stafford, for defendant in error.
H. H. Williamson and E. E. Musick were opposing candidates for the office of sheriff of Mingo county, at the general election held on the 8th day of November, 1904, for the term beginning January 1, 1905. After the election, the returns were canvassed, resulting in favor of Williamson. A recount was demanded by Musick, resulting in his favor, and a certificate of election was issued to him. Notice of contest was given by Williamson, and a counter notice by Musick.
A trial of the contest was had before the county court, resulting in favor of Musick. An appeal was taken by Williamson to the circuit court of Mingo county, resulting upon trial in his favor. Musick brings the case here for review by writ of error.
Williamson moves to dismiss the writ of error, on the ground that this Court has no jurisdiction. It is contended that election contests for county offices are purely statutory, and that no provision has been made by the statute for review by this Court. There is much authority outside of the state sustaining this contention. 15 Cyc. 435, Notes 99 and 2. While this is true, we do not consider that it is an open question in this state. In the case of Dryden v. Swinburn. 15 W. Va. 234, Judge Green delivered the opinion of the Court. The ninth point of the syllabus holds: "The record showing that the office of the clerk of the circuit court of Kanawha county is of greater value than one hundred dollars, the Supreme Court of Appeals has appellate jurisdiction by writ of error to review the decision of the circuit court in such a case." Also, in the case of Dryden v-Swinburn, 20 W. Va. 89, Judge Green again delivered the opinion. The fourth point of the syllabus holds: "In a contest about an office before the county court or other inferior tribunal, the decision of said tribunal may be reviewed by the circuit court by writ of certirorari; and the decision of the circuit court may be reviewed by the Supreme Court of Appeals, by writ of error." Following those cases, this Court, in numerous contested election cases, has taken jurisdiction by writ of error. See Halstead v. Rader, 27 W. Va. 806: Ralston v.. Meyer, 34 W. Va. 737; Alderson v. Comrs., 32 W. Va. 454; Elbon v. Hambrick, 55 W. Va. 236; Snodgrass v. Wetzel Co. Ct, 44 W. Va. 56; Davis v. Brown, 46 W. Va. 716;, JPowler v. Thompson, 22 W. Va. 106; Dial v. Hollandsworth, 39 W. Va 1; and Doll v. Bender, 55 W. Va. 404. Under the former practice, review by the circuit court was by writ of certiorari to the decision of the county court in such case: but this has been changed by statute. This makes no difference as to the question of jurisdiction by this Court. It will be observed that the constitutional provision, section 24, Article VIII., uses the word "cases" in relation to election contests for county and district offices. We, therefore, con- sider it settled that this Court has jurisdiction, by writ of error, to review the final order of a circuit court in an election contest for a county or district office, where it appears that the value of the office is greater than one hundred dollars. It does so appear in this case.
The contestee raises the question of the constitutionality of that part of chapter 80 of the acts of the legislature of 1901 which provides for an appeal by either party, in such case, to the circuit court, and for a trial de novo in that court. It is contended by contestee that the clause of section 24, Article VIII., of our Constitution, in relation to county courts, which provides that "they shall, in all cases of contest, judge of the election, qualifications and returns of their own members, and of all county and district officers, subject to such regulations, by appeal or otherwise, as may be prescribed by law, '' prevents the passage of a statute providing for a trial de novo by the circuit court in such case of election contest. The part of said clause reading "subject to such regulations, by appeal or otherwise, as may be prescribed by law," was added by the amendment which went into effect on the first day of January, 1881. It is contended that the added words mean nothing more than that a review for error may be provided for by statute, and that the county court is still the judge of an election contest for a county or district office. The statute under consideration does not take away the jurisdiction of the county court in the first instance to hear such contest. It simply provides for regulation by appeal to the circuit court, and a trial de novo. The word "appeal," when used in practice, is defined by Mr. Bouvier as follows: "The removal of a cause from a court of inferior to one of superior jurisdiction, for the purpose of obtaining a review and retrial." See, also, Elliott on Appell. Juris., section 15; Powell on Appell. Juris., section 10. The words of the constitutional provision are very broad, permitting such regulation, by appeal or otherwise, as may be prescribed by law. We are clearly of the opinion that the constitutional provision does not deny the legislature the power to pass a statute authorizing an appeal and a trial de novo in the circuit court, in such case of election contest.
We come now to the merits of this controversy. The parties and their attorneys have aided the court materially in narrowing the scope of the controversy. The real controversy now presented relates to but one election precinct, being precinct No. 3 in Magnolia District of Mingo county, known and referred to in the proceedings as "Matewan Precinct."
The first ground of contest contained in the notice of the contestant is, in substance, that the election at Matewan Precinct is null and void, by reason of fraud, trickery, corruption and irregularity in the conduct thereof. Under this ground, the notice sets out numerous specifications, designnated by the letters of the alphabet from "(a)" to "(y)" inclusive. This ground of contest does not specify individual votes which the contestant claims to have been cast by persons not entitled to vote, and does not specify votes rejected which should have been received. This ground goes to the validity of the poll at that precinct, and not to the legality of individual votes. The circuit court sustained this ground of contest, and held the election at Matewan Precinct void.
The contestant offered evidence tending to prove the following under this ground, in relation to Matewan Precinct: That the place of holding the election established by law was the H. S. White store house; that the election of 1900 was held in the H. S. White store room, part of said house; that the election of 1904 was held in the same house; that the house had been so changed that the entrance to the election room was from a different street; that the election was held in two office rooms, on the first floor, in 1904, the commissioners remaining in one room and the booths being placed in the other, with the door between the rooms open while the voting took place; that R. W. Buskirk and T. G. Burgess acted as poll clerks; that, before the election commenced, J. H. Green was named by a...
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