*1 reversed, aside, are set jury verdicts new trial 'defendants, is awarded the and this case is re- proceedings, manded that court such in conformity to the principles opinion, may enunciated necessary proper. reversed;
Decree aside; verdicts set awarded; new trial case remanded. Maynard Pierce B. Henry T. Hammond 10638) (No. Submitted November 1953. December 1953. Decided *2 Williamson, Bronson, Bronson, Bronson H. G. John F. & in error. plaintiff Lawson, Brooks for defendant in error. J. Judge:
BrowNING, 10, 1952, provisions On June accordance with Williamson, City of the munici- special charter of the and four council- pal mayor election was held at which Two party men of each were candidates. major political elected were republican party candidates council, party two candidates democratic time, elected to but since body, (cid:127) Hammond, repub- democrat, and the contestee Maynard, who was lican, to determine engaged litigation have from mayor. to the office The initial returns elected day eight favored Hammond precincts election later, 12, 1952, mayor days on June votes. Two Williamson, canvassing as a sitting council of the in it board, by authority by Chapter vested Section ordinances, can- Legislature, Acts of Maynard had re- and determined that vassed votes *3 1,971 a re- 1,983 Upon and Hammond votes. ceived votes election, by mayor the the and count of the votes cast at board, as the sitting canvassing a members council 1,962 Maynard had received votes determined that board occurred on June 1,949 votes. recount and Hammond 24, 16, employed The board of canvassers 13, 17 and 1952. down transcribe the pro- to take and reporter an official recount, taking the and the ceedings upon before it upon that office, her did necessary oath of certificate states she official such reporter. to her duties as perform proceed recount, took the of the contestant oath the Subsequent Williamson, and of mayor City office as of assumed 1, July office on 1952. 2, contestee, 1952, rule July upon petition by
On a against per- in mandamus was Court those granted Hatfield, board, Melba comprising canvassing and sons Williamson, City commanding Clerk of the of them should not why cause the board canvassers to show Hammond alleg- and certain ballots for reconvene count recount; for counted on wrongfully Maynard edly certain not counted either count for Hammond ballots reject and not count for certain party and either party; A Maynard. counted wrongfully allegedly ballots cer- for Hammond counsel motion was also made might that counsel so photostated disputed tain ballots preparing the purpose thereof for copies be furnished return 1952, 8, which briefs, July prior their and the motion granted the rule. This Court day of photo- the 48 disputed clerk to have directed its will which stated, under circumstances done which was related. be hereafter awarding 12',1952,entered an order July
This for, directing the writ of board prayed mandamus election a certificate of canvassers to reconvene issue he had received in upon finding to Hammond 18, 1,961 On 1,963votes, Maynard July votes. election 1952, mayor. office as Hammond took 28, 1952,
On served notice July upon would, city council mayor contestee that he before court, contest the elec- Williamson, contest sitting that: Fraud and upon grounds tion of the contestee 4, Hall at Precinct No. irregularities had occurred should be disre- and that all votes cast the result garded determining and not considered that 6 election; ground .the further 3, 3, Precinct No. No. Ballot No. Ballot No. Precinct 8,No. 3,No. Precinct Ballot No. Precinct No. Ballot 9, Precinct No. and Ballot No. Ballot No. Precinct subsequent forged altered and fraudulently 9 had been counted recount, and that these ballots should be to the original wishes in accordance with for Maynard cast them. the voters who *4 Maynard, 6, 1952, upon
Hammond, on served August stated clerk, a counter-notice which city filed and with all the votes seek to have would the contestee and not School, disregarded 6, High No. at Precinct cast ground upon candidate either counted for had as commissioner therein to act appointed person such, every ballot as each clerk, signing poll acted as for the at Precinct No. 3 cast that 4 absentee ballots 234
contestee, which counted, had been and not rejected should be for counted him.
On August 22, 1952, the filed the con- contestant with test court contest, an amended notice of which was served contestee, in to the containing, addition names of 147 persons alleged in his notice to have voted for Hall, the contestant at Precinct No. follow- ing: “Numerous other voted for me at people said election said which were not and included counted holding commissioner said election.” court, 26, 1952, contest on August sustained the notice, contestee’s demurrer contestant’s and dis- However, missed the September 30, 1952, contest. Circuit Court of Mingo County reversed the action court, contest and remanded the contest for pro- further ceedings.
On 24, 1952, November Court refused the request for a error contestee writ of to the of the circuit ruling court. The proceeded contest court to hear the contest upon merits, its and held numerous for purpose sessions between April 16, December 1952 and 1953. On 26, 1953, June the contest court refused to disturb the vote at Precinct No. sought and refused the relief by regard to the 6 allegedly forged granted sought by relief the contestee by finding that no valid votes cast at Precinct 6 because the appointed as election commissioner person had signed all of the ballots cast at that precinct, ordered that 4 absentee ballots at Precinct dispute No. 3 should be counted Hammond. One of the votes at Precinct No. 6 an absentee ballot for Maynard, cast was and it conceded that be properly was should counted It not contended Maynard. party either the contest that the proceeding remaining votes which had before this Court in State ex dispute been rel. al., Hatfield, Mayor, Hammond v. W. Va. counted S. E. 2d should .be otherwise than this Court in that had held that should be case. As a result *5 of the decision of court, the contest Hammond was de- to 1,966 clared have a received total of votes and May- 1,957 nard votes.
The contestant was granted by appeal Circuit 1953, Court Mingo 30, on County, June from the de cision of the court, 13, 1953, contest and on July Judge Charles Ferguson W. disqualified himself, and voluntarily withdrew from the Judge case. John of the W. Hereford Sixth Circuit, Judicial by thereafter arrangement, pre sided In case. a written opinion memorandum con firmed subsequent order, Judge Hereford reversed the action of the contest court with to regard Precinct No. 6, holding valid, all votes cast there were as to the absentee ballots Precinct held that they No. could not be counted, inasmuch as the action this Court in State ex al., rel. Hammond v. Hatfield, Mayor, et supra, adjudicata. relative to them was res The Circuit Court Mingo County affirmed the action of contest court regard to City Hall Precinct No. and the 6 allegedly forged placed ballots. This action the con court testant contestee in the identical positions they had held after the ex rel. decision of this Court State Ham Hatfield, al., to-wit, mond v. Mayor, supra, Hammond 1, 63 1, 961 had votes and Maynard votes. 26, 1953,
On October granted this Court writ error final Mingo County, order of the Circuit Court of assigning entered October as Circuit holding Mingo County error Court of that no had fraudulent conduct been shown as to Pre- No. 4 at that justify disregarding pre- cinct votes court cinct, sustaining and for the contest Under Rule forged the 6 ballots. allegedly contestee, error, and defendant XI of this of error to action of the counter-assignment filed reversing ruling court in the contest court’s circuit 4 absentee Precinct No. 6 and the ballots. assignment, and counter- questions raised (1) in this order: of error be discussed will
assignment (2) 6; (3) Hall; No. Precinct No. ab- Precinct (4) 3; in Precinct the 6 sentee ballots cast *6 forged allegedly ballots. Hall, received
At Precinct the contestant his notice of 113 and the contestee 251 votes. In votes contest, 147 that people the names of contestant listed In his amended alleged precinct. he voted for him at that stated, that in contest, of alleged, notice as heretofore he votes, persons to the numerous other voted 'addition 147 at notice was not for him that The amended precinct. made to upon contestee, objection served was testimony other than the 147 named. of witnesses court, the contestant pro At the trial before the contest of who, waiving right secrecy duced 97 witnesses Maynard. that they their voted for testified names produced persons other whose contest, and the notice of con original not listed inadmissible, testimony test court that such ruled permitted record if but the avowals that these shows for so, May do voted to would have testified produced nard at Precinct No. 4. The contestant further as to have been alleged and offered 50 affidavits evidence at Precinct No. by persons stating made voted who affiants The affidavits were like Maynard. voted In refused as the contest court. Dun wise evidence al., County can v. Cabell 138 W. County, Court Va. 24, 1953, E. this 75 S. 2d. decided March Court that: “Ex voted in a held affidavits who parte voters precinct certain in a are not recount, competent filed contradict of votes in such number cast by the machine therein.” voting Though shown sole used therein a can question presented upon had arisen recount, contest, vass and not a the contest court and the Circuit Court of held that Mingo County correctly inadmissible, avowals, affidavits were likewise the of the fact amended particularly view that the notice had not been served contestee. regard voter,
In whether subse- election, may, by an to the of his vote at quent casting ballot, testify of the whom waiving right secrecy his conflict of election, is a he voted there definite Elections, §281, and cases cited C.J.S., authority. directly upon not passed therein. This Court has of the 50 affidavits and, by the elimination question, since, that as avowals, and 22 contestant has failed show 4, it is for him at Precinct No. many persons as 113 voted As to contestant’s unnecessary to do so in this case. to have charge poll that 3 or 4 book persons, shown election, Code, voted, did not fact their vote in the cast received, or 3-9-14, be provides: “Though illegal votes voting, the returns legal any place votes be rejected, not be set aside for taken at such shall place votes shown, evidence cause, by proper may but *7 hear and deter- authorized law to before the tribunal or illegal such votes elections, mine contested whom cast, legal or for votes which any of them were whom and the returns given, have been rejected would were that it is so shown.” to the extent only shall be corrected such no whom showing There was cast. were, of them were votes, any if such or illegal upon attack testimony also There was inside the being precinct persons improperly Hall as to Two witnesses polls open. voting while place on three or that Hammond was in testified Bias, his Gaujot that E. day; during four occasions and that illegally; there was likewise (cid:127)campaign manager, Hammond, had partisan also a one Taylor, apparently this testi- day. all All of polls” of the “in and out been officers, and denied the election mony specifically was of these any state that did not the contestant’s witnesses act, they were observed or that did fraudulent persons the result of the affected that have might doing anything im- being charged with Those place. that voting charges denied likewise voting place properly cast attempted Contestant (cid:127)of contestant’s witnesses. Pre- from of the returns the legality upon doubt further 113 votes he received that while showing 4 by cinct and his republican opponent received 251 votes at precinct, the democratic candidate for councilman received 238 votes at that precinct, his republican while opponent received 127 votes. The burden con- testant prove by preponderance evidence the election in Precinct No. was so con- fraudulently ducted that the entire cast vote there should be con- sidered. He failed to meet that requirement, and the contest court and the Circuit Court of Mingo County properly so held.
This Court has numerous occasions held that statutory provisions, requiring poll clerks to personally all sign are mandatory, and that all ballots which are not signed by the poll clerks in the manner required by statute are void and cannot be considered counted. (cid:127)“* * * Code, 3-5-31, reads in part as Any follows: ballot which is not clerks, indorsed with the poll names provided this chapter, shall be void and shall not * * *“* * counted; Code, 3-5-18, provides: each poll clerk shall personally sign his name on the back * *” * the ballot before delivering to the voter. State ex rel. Bumgardner Mills, al, et 132 W. Va. 53 S. E. 416; 2d. Brotherton, al., Funkhouser v. 124 W. Va. 234; S. E. 2d ex rel. Given, Johnson v. State 102 W. Va. 771; 136 S. E. and numerous other cases cited in the Mills case.
The precice question here presented has- not hereto- fore been before this Court. Contestee in his alleged *8 counternotice that Glen E. Farrar was duly appointed McQueen commissioner of election, that James was duly appointed poll clerk for Precinct No. but that Farrar signed all of the ballots cast at that precinct as poll clerk. The only evidence adduced by sup- contestee to port his contention that the mandatory statutory pro- visions that requiring clerk poll shall personally sign all ballots was given by Cantees, Sam Clerk of the City of Williamson. McQueen He stated that James ap- was pointed poll clerk for Precinct No. 6. By agreement of counsel, the certificate of results of Precinct No. 6 was a part made of this record during proceedings, contest and is marked Contestant’s Exhibit No. A-6. That certifi- cate signed was by clerk, Glen E. Farrar as poll and by McQueen James as commissioner. There no is evidence show, nor denial in brief, contestee’s these men did not qualify for the respective positions they by filled taking the required office, oaths of allegation in contestee’s eounternotiee that Farrar all signed Precinct No. he, must be taken as admitted that alone, and he throughout served the election poll clerk. This case clearly distinguishable from Johnson Given, supra, wherein the clerk counting and not the receiving or poll clerk signed all of the ballots. It may be dis- tinguished also from the other cases cited where a poll clerk “designated” some other officer to sign his name to the ballots. In Brotherton, Funkhouser v. et al, supra, to, situation similar but not with, identical the present one developed. The Court said: “The testimony further that, shows without at the opening of the polls at this precinct, Hark, Zundel who had been appointed county court as Republican clerk, failed to appear, and that thereupon, the remaining officials there present appointed Mulligan Chappell act as clerk in lieu of Hark, and chose Robert Humphreys, Republican voter then present, to be commissioner in the stead of Chappell. The clerk’s oath in the Republican poll book contains the name of Mulligan Chappell appears what to be the same handwriting signs which he the certificate of election, but inserted the same manner as that of Homer H. Lowe. This oath is signed by Chappell close, at its name, oddly, but his appears blank signature for the of the attesting officer. All witnesses agree Chappell, polls, from the opening pro- Republican clerk, and, ceeded act as receiving although times, himself at absenting continued as such clerk until afternoon, four or four-thirty o’clock in the which after his absence continued until closing polls. We opinion are of that this showing clearly establishes that Mulligan Chappell legally chosen and qualified, and he as Republican did act clerk receiving at this pre-
240 and contestee was The vote between
cinct.” and votes, 220 receiving the former at precinct, close nor alle- There neither evidence the latter votes. precinct. at this other misconduct of fraud or gations the de Farrar was correctly held that circuit court The the voters and that clerk at Precinct No. ju,re poll the cir- not be disfranchised should record. by this cumstances shown marked voters ballots were The four absentee day, were prior Hall to election 3 at the Precinct No. one day in officers on election the election received as boxes, provided properly preserved of the ballot officials, election that the The shows statute. evidence removed these absentee opening polls, prior of the absentee voters credentials” ballots, “examined the box, they where in the ballot the ballots replaced they time closed. At that polls after the remained until in the election room on a table placed removed and were taking place, re- votes was counting where of. completed. count had been after the mained there until officials, by the prepared of result were The certificates statute, one taken to and, in accordance with After that had upon the door. placed outside and testimony, the attention occurred, according to called to the absentee officials was the election and count to examine proceeded then and the officers for con- were all voted found them. It was had certificates, including one which testee, to show building, changed outside of the taken been for contestee. total vote a different “* * * the election commis- Code, 3-6-10, provides: envelope containing absent open shall sioner or destroy manner as not to deface in such voter’s ballot or and take out ballot ballots therein the affidavit or therein, unfolding permitting without inclosed or examined. commissioners to be unfolded same clerks, to the poll ballot ballots deliver such shall then their names on write proceed once shall who in the same manner other such each of back *10 ballots are required to be endorsed. A commissioner shall thereupon deposit box, the same in the ballot and the poll clerks shall in indicate the appropriate place on the registration in record the same manner as if he had appeared personally, the fact that such absent voter had voted, and shall enter the absent voter’s name on poll * * *” hook.
In State ex rel. Hatfield, Hammond v. Mayor, al., et supra, an by evenly divided it was held that in- asmuch as these ballots “were not [properly] placed in the ballot box between opening and closing polls that provisions Code, 3-6-10, had not been substantially complied with.” The Court said: “In this regard, therefore, the action of the in board not counting the ballots is by affirmed an evenly divided It Court.” is not contended by counsel for contestee that the holding of this Court as to the 4 not, absentee ballots would ordinarily, case”, and, therefore, “law of the res adjudicata, he but contends that the question was not by decided of a evenly split vote four man Court. The Virginia Constitution, VIII, West 4, pro- Article Section vides that: “No by decision rendered court supreme shall be appeals binding authority upon considered as State, the inferior coruts of this except particular decided, case unless such decision is concurred in by Code, 58-5-20, at least three said court.” judges of is identical the constitutional provisions. Subject to a not here pertinent, few determination exceptions, on a former becomes the hearing issues this Court Co., Fuel of the case. Smith v. United Gas 115 W. law Va. Catzen, 150 782; 174 S. E. W. Va. Kaufman Error, §1097, 371; Digest, E. & E. Appeal S. W. Va. S. therein cited. The case here under consideration cases in ex rel. is the case that was the Court State same before Hatfield, Mayor, ail., supra. et There has Hammond v. proceedings, one in these only been issue involved Maynard was elected that is as to Hammond or whether at the election held on Mayor of Williamson regarding absentee 10, 1952. The question June therefore, though affirmed evenly divided an. in Court the extraordinary mandamus, in proceeding be- came statute, settled and binding under and consti- tutes the law of the case this subsequent proceeding on writ of error. The ruling of the Circuit Court Mingo this County issue was decided Court al., State ex rel. Hammond v. Hatfield, Mayor, supra, and, therefore, res adjudicata, was correct.
The contestant contends in brief oral argu- his ment that all of the 48 ballots photostated which were and considered by this Court the mandamus proceed- ing lost their integrity by exposure tampering as photostating, result of the and should not be considered *11 in this case. In State ex rel. Daugherty County Court Lincoln of al., et
County, 127 W. Va. S. E. this Court held exposed ballots which were to should tampering by board, be discarded the and that the certi- canvassing ficate of officials should as the accepted final result of the election in a In precinct. such State Garbert, Roibinson, al., ex rel. et al. v. 88 W. Va. “* * * 107 S. E. the Court said: Nor do think it is we competent the board of canvassers to enter inquiry actually to whether or the ballots were were, in tampered by party custody they with whose or by anyone else, the time unsealed. during they were they Under the law are the evidence of the primary only pre- result of the election have been they when law, served the manner and provided by ap- when pears they have not lose preserved been so of their character as such evidence before the board * *”* This Mills canvassers. is discussed case, many and others are cited therein to the same effect. by In all of the this Court which it has cases considered to been held that lost their integrity by exposure ballots allegations possibility tampering, exposure to a time to the consideration of the prior were directed case, In no board. this there is by canvassing ballots thereto, until tampering, exposure contention of after the ballots had been examined by counsel for both contestee, and passed upon by the board of canvassers at the recount.
On Saturday, July 5, to pursuant the order there- tofore Court, entered arrangements having been therefor, made Allen, Mr. D. Frederick who operates photostating shop Charleston, to came office of the Clerk of this Court to disputed secure the ballots for the of photostating purpose them. Counsel for the contestant designated Robert J. Staker and Don Staker to come from Charleston Williamson for the purpose securing photostatic copies counsel for the contestee designated contestee Frank Kimball come to Charleston for the pur- same pose. The Clerk of this requested bring Court Allen to the package from containing ballots the Charleston office post clerk, office of the he but secured mistake another addressed to the Clerk of this package post and was directed the clerk to return to the office and at that time secured the proper package it to Mr. Hines, morning delivered the clerk. On the 5th, contestee arrived at the early office Clerk of this Court and was there Allen when arrived the package containing which then opened by the clerk. It from áppear would the evidence that Kimball was not in the Capitol time.
48 ballots delivered to Allen in the of presence contestee, proceeded and different automobiles they by a parking to lot about four blocks from the Allen shop. lot, Allen, From the parking Hammond and Kimball to the the photostating shop, went which located in Charleston, the of City basement of Kanawha Hotel the Capitol. two miles from the Sometime about distant Allen, Stakers, had delivered the after the ballots been to Slaven, contestant, for the couriers for Mr. Lant attorney being office of Clerk of this arrived at the the Alien, informed that the had been delivered to ballots shop. to the Allen There is direct conflict proceeded the three of between Stakers and other testimony the trans- gentlemen, Allen, Kimball and as to what contestee pired that shop. say at the Stakers photostating they Allen, when Kimball and contestee were arrived, in the of the machine the work vicinity photostatic where done, from time until being and that four photostating was'completed, three or approximately later, tampering hours there was with opportunity had portions the 48 or such of them as not been Allen, photostated to the of prior arrival the Stakers. testimony Kimball contestee specifically deny Kim- required and state that Allen contestee and only ball, also, remain at the front of part but Stakers to shop during all times the photostating process. for the time the were examined Except recount, board, canvassing both the canvass city to mailing and when this Court prepared clerk, parties, in the of of both representatives presence in a kept had been room at Hall William- son, contestant, of and the on the door which contestee lock, clerk had a and the room could city separate each at the of all three presence not be entered without nor the contestant’s notice of contest same time. Neither of allegation his amended notice contest contains of the 48 ballots regard integrity the loss of to to photo- to facts relative exposure tampering. The related for as application are such stating the ballots contained in the they may charge have to which was at or that 6 ballots were altered specific notice contest their prior to consideration subsequent recount, to the proceeding. It is not Court in the mandamus by this therefore, discuss, decide, or further necessary, exposed to tam- 48 ballots were whether them cause under circumstances would pering such However, we believe integrity. pertinent lose their of a court for custody judicial in the that ballots say court, custody of the clerk determination, except upon evidence much integrity, not lose their would case. Ballots in presented than has been stronger should, course, a court be custody of officials caution should ex- and extreme carefully preserved, *13 votes, them, where a few handling particularly ercised of an one, determine ultimate result might even the election. Lant Gray attorney
Zane and associate of Mr. Staker, time, Slaven, representing the contestant at the but who contest, was not counsel in the testified that when he the ballots on the 5th photostatic copies received day July, according precinct, he stacked them and a process of so he observed ballot doing, which had been marked in ink in the circle on the demo- ticket, which, cratic a having side and mark on of a side of the ticket appearance republican blot time, In also he states: “At that appeared. regard I had were the mark- positively only those recalled on that for I had addressed the recount board ings ballot and called to its atten- respecting specifically ballot tion of the bold mark in ink in the circle presence pointed on the democratic side of the ballot and out to the recount board that should be counted for ballot reason that the mark on the Maynard appearing republican circle on the- the ticket quite side was X in the obviously Upon observing penciled blot.” name, immediately in front of he ex- block contestee’s copies says amined all of the 48 was photostatic com- allegedly forged then that he found them with the of the ballots counsel paring description stated, at the recount. As heretofore an official reporter the board of canvassers took notes employed by transcribed, taken of, and later the evidence before as statements canvassing recount, board as well by opposing concerning and motions made counsel ballots. disputed rel. Hatfield, Mayor, This in State ex Hammond al., supra, did not consider such statements and motions parte “are ex in their nature very for the reason that of the given not be the effect evidence should clerks, commissioners, persons present poll ballot point syllabus The second in that at the election.” a recount of ballots cast at an follows: “Upon case is as *14 election, a board of canvassers is authority without consider or determine matters the election shown returns byor commissioners, relevant evidence of the clerks, poll or persons other present at such election re- specting returns, such may which only established by evidence extrinsic to the election returns.” State ex rel. Bumgardner Mills, supra. By agreement counsel the beginning contest, of the of the transcript record of the recount proceeding made a part was record, and marked Contestant’s Exhibit “C”.
A short ballot was used in the election on June 10, each being approximately six inches long and five inches wide. Each only columns, has two the left column as viewed the voter containing candidates of the democratic party, right column those of the republi- can party. On each of the ballots directly under the party emblems is the circle straight which ticket may be voted. Beneath the circles are the names of the candi- for mayor, dates each below name council- manic candidate. On no ballot were more there than two names each column. six allegedly
The forged ballots will be described and discussed individually.
Ballot No. In Precinct 1: the circle beneath the emblem, democratic and above name of X, there is a heavy obviously made awith pencil soft lead; and in circle a republican figure solid made by pencil markings scratches or entirely which cover what an In apparently square was X. opposite contestee’s name, neat,X> obviously there is a aby made pencil with recount, a sharp point. At counsel for contestee ballot, moved the board to rule this ballot a spoiled it contestant, not count for either candidate. The Wilson Farrar, a board, R. member of the canvassing Ersel L. Slater, who at the recount was counsel for the con- all the X testant, positively testified before con- name not there at the time of testee’s the recount. Ward, board, official caller for the George canvassing testified though ballot, he remembered the he did not remember Xthe now in front appearing of contestee’s name. board Maynard. counted The record no shows reference to Xthe before the name of contestee. This in the mandamus proceeding, awarded ballot contestee for the reason that the X in front of his name superseded the X the democratic circle.
Ballot No. Precinct 3:No. This ballot bears inked X in the circle, democratic and an X indistinct upper portion of the republican circle at a point where the distinct X in the democratic circle would rest upon *15 the ballot being folded. There is an X in square the be- fore name, contestee’s made with a pencil. The trans- script the before proceedings canvassing board shows following as to this ballot: “Counsel for Hammond asks that ‘Ballot No. 3, ballot, Precinct No. 3’ ruled a as be- spoiled cause is an apparent there X in the Democratic circle and a X in the blotted circle. Republican “Counsel Maynard ballot, for requests this identified Ballot Precinct be counted for Maynard for the heavy reason inked part under the vote clearly Democratic emblem shows ticket, thin, of a straight Democratic and the under the Republican blurred mark emblem is sides merely part the blotted left when the two together.” of the ballot were folded penciled X in the square There was no mention contestant, Farrar, The Zane before contestee’s name. X in the Staker, testified that the Slater Ward Gray there at opposite the name of contestee was not square The board counted the ballot the time of the recount. proceeding, this contestant, and in the mandamus for for candidate. did not count the ballot either Court a heavy 3: This ballot Precinct No. has Ballot circle, square a X in the republican X in the thin distinct contestee, and a ob- partially the name opposite front of contestant’s name. square X in the literated bO CO is,
The obliteration X either at- partial latter erasure, or a The of the con- tempted smudge. transcript test proceeding following: shows a . asks that ballot be Maynard “Counsel
identified as Ballot No. Precinct No-. and re- Maynard, count it for for the the board to quests reason is, Maynard’s there Pierce B. opposite for the provided purpose, name in the block X mark Maynard. of a vote for specific casting indicating motion and “Counsel Hammond this resists X calls erasure attempted attention to May- before Pierce B. square appearing name.” nard’ square opposite to the X in the was no reference There Farrar, contestant, Slater the name contestee. in the square opposite that the X and Staker testified the re- there at the time of name of was not contestee contestant, and the ballot for count. The board counted con- Court it to gave proceeding, in the mandamus testee. has a distinct 3,No. Precinct No. 8: This ballot
Ballot republi- X in the circle, an indistinct X in the democratic center near the circle, point line from heavy can drawn the circle circle toward bottom republican *16 marks in the it, pencil outside of extending ¿nd Estep, contestee Leonard the names square opposite in that ward. city for the council candidate republican following: the shows transcript The recount ballot identi- Hammond, as to the “Counsel for 3’, ballot 8, Ballot No. which fied as ‘Precinct No. ink on the Demo- in been voted have appears X into inked blotted side, and the folded cratic mark blot circle, and over which the Republican in the form of marks additional appear there for. not counted this ballot be that move X. We candidate. either have this ballot moved to Maynard for “Counsel the being this ballot Maynard, for Mr. counted one 3.” 8, Ballot No. No. as Precinct identified contestant, Slater, Farrar, Gray and Zane The Ward X in the opposite that the the square Staker testified not there the timé of the recount. name of contestee was contestant, The for and this counted this ballot board Court, in the with reference proceeding, mandamus ballot, No. the this said: “Ballot Precinct counted as a Maynard, Board for was considered this Court it Hammond, vote for his admission that except for either party, should not have counted for result- been the ing Maynard finding in a from loss one vote not be Board.” The admission this ballot should in for was contained contestee’s party counted either in this on for writ of filed Court petition mandamus 1, 1953. July a dis-» No. No. 9: This ballot bears
Ballot Precinct as in circles, tinct X in each of the well X’s party contestee, of contestant and squares before the names Mar- an X in name of Joe square and also before the in for council that ward. cum, city democratic candidate recount proceedings The shows transcript ask candidates Republican for the following: “Counsel No.. No. that a as ‘Precinct Ballot ballot be identified in circle be- 8’, appears an X ballot there which an X political parties, and low the emblem of both Marcum, Maynard before names of square and not ballot spoiled and moved this be considered posi- The and Farrar both testified counted.” contestant X of con- that the name tively square opposite The the time of the recount. testee was there at contestant, and board counted this ballot counted for no one. mandamus proceeding, heavy 9: This ballot has Ballot No. Precinct circle, pencil perpendicular several X in the democratic marks, diagonal circle and two republican marks circle, light and a very outside the extends one of.which contestee. name in front square X in the counsel only that transcript shows for contestant be counted ballot moved *17 X in There is no mention Marcum. councilman the square opposite the name of the contestee. The con- testant, Farrar and Slater testified the X in the square opposite name of contestee was not there at the time of the recount. The board ruled the ballot spoiled, and did not count it for either candidate. This Court stated in the mandamus proceeding that this ballot would have been counted for contestee except for the latter’s admission his petition that it should not be counted for either party. only
The witness who contestee, testified re- garding the condition of these 6 ballots when were being considered and observed parties interested recount, at the Bias, Mr. Gaujot E. who was time counsel for contestee. Mr. chief S. N. Friedberg Lawson, Mr. Williamson, JV Brooks attorneys also of counsel for contestee at the recount hearing, but neither testified as a at the witness contest hearing. Bias testified that it was to impossible remember accurately on any given marks ballot. He further stated that he “briefly would with an alert attempt examine the ballots to determine whether or not comment or motion or objection was to be interposed behalf Mr. Hammond.” Again he stated: “In making the mo- tion, I attempt would describe ballot some particularity transcript so of that recount would . have accurate picture word each ballot. I was * * remiss in some cases. There was considerable haste *. and tenseness, and, that, because of we were able aup make record that would accurately describe these ballots.”
Several for the witnesses testified that all interested parties had ample observe, opportunity make notations with reference to, appearance of the disputed ballots, and several supported testimony Bias to the effect that counsel were rushed in their con- sideration of the and that confusion was created by many being present observers in the room where the being contest was considered. opinion memorandum of the Circuit Court of
Mingo County, subsequent which was basis its order, in part reads as follows: any “I find no direct in record of such proof change. is, Such as there is circum- proof, very
stantial. argues Contestant that if these 6 ballots had shown the mark for that Hammond now them, on and that on them appears appeared Supreme passed when the Court of on' Appeals them, such fact of appear would record recount, the tention to such marks at that time. that called at- some one would have * * * “It is at the apparent that Supreme time these same 6 ballots as well proceeding, of the mandamus had before as the transcript * * * Therefore, the they exactly says recount. no one most, the ballots At the fact changed. saw transcript the recount does not des- cribe condition of the present or mention ballots, only a arises. In view suspicion thereby of the fact a there only suspicion about arises, and the matter the Supreme was before Court, this Court is to hold that compelled proof tampering is not clear and sufficiently throwing to convincing justify this Court out, place these ballots or to shadow on the Court remaining Supreme that were before and there passed on.” Hatfield, al., In State Mayor, ex rel. Hammond supra, the mandamus the Circuit proceeding which refers in memorandum Mingo County opinion, Court its that the of whether the specifically question it was held ground forgery on the ballots should be declared void name, or after during a either X’s before candidate’s recount, of fact which could be estab was question the election returns, extrinsic to only by lished evidence contest, such evi an election unless only in admissible commissioners, poll clerks or from the dence came such election. As heretofore other persons present oc is to have stated, alleged of the ballots forgery canvass, during sub subsequent curred before question recount. This sequent reasons proceeding in the mandamus this Court clearly opinion. stated in the The Court said: “As to whether the six ballots under consideration immediately should on ground ap- be declared void the Xs pearing before Hammond’s name squares were- forged, and the re- placed during thereon either or after count, factual, simply say we that such based record, proper matters extrinsic to the and is for con- * *” * sideration in an election contest. only
The Circuit in memorandum Mingo County Court of its *19 opinion clearly indicates that its decision as to these ballots upon impression was based the erroneous that al., Hatfield, Court in State ex et Mayor, rel. Hammond supra, had thereon. The passed present being case contest, election in the evidence not considered the man- us, damus proceeding properly together is before the other evidence the hearing. adduced at contest The testimony uncontradicted of several to the witnesses effect that the X’s in squares the before contestee’s name were recount, not on the arising ballots at the the inference the, from a comparison of the description disputed ballots counsel the recount during present with their condition and an examination on the markings of the ballots, con- original leads this Court to inevitable clusion that the marks appearing squares before contestee’s name fraudulently placed there at or to the recount. None the naive or the subsequent but very credulous could as coincidence the remark- accept ably squares similiar X’s in the con- penciled before testee’s name 6 cast at four separate pre- ballots cincts, which are other completely X’s dissimilar markings appearing two of which were in by pen otherwise marked and ink. This Court held Banks, al., State ex rel. Jarrett et al. v. 98 W. Va. clearly 128 S. E. that a where shown forged, ballot had been altered or it was not necessary prove time, place that contestant should or agency Hatcher, the fraudulent for Judge speaking alteration. said: “We deem it unnecessary discuss as to care conflicting custody evidence of the and the opportunity ballots access thereto. No matter care, custody great how close the how their present found the appearance proof despoiler oppor- tunity.” finding Mingo The Circuit Court of shown, County, forgery clearly of the 6 ballots is not is erroneous.
The of the Mingo County decision Circuit Court of in (1) regard to fraud and in Pre- alleged irregularities 4; (2) cinct No. of the qualification poll 6; (3) clerk in Precinct the absentee ballots Precinct No. is affirmed. The decision of that court regard to the forged ballots is reversed.
Upon the decision that these 6 were forged, we consider them as if no there were X's be- square fore contestee’s name. intention of the voter cast clearly his vote for contestant discernible being when viewed, thus hold that all we 6 ballots were cast contestant. This results in a net loss of for con- votes testee, 1,961 votes, and a net giving gain him total 1,967 giving contestant of him total of votes. having majority
The contestant received a Maynard, *20 1952, 10, of the election of June valid votes cast at the of of the of Williamson. Mayor City is entitled the office Therefore, the order of this Court that the contestee is the office of of mayor Hammond shall vacate forthwith city, occupies. which he now County Mingo Circuit Court of of the judgment The part. affirmed in reversed in and part in part Reversed in part. and affirmed Lovins, Judge, concurring: I case, agree do not the result in this but
I concur in syllabus of the point by shown four the conclusions in expressed conclusion' as of that corollary and the has received of the case” “law phrase five. point 254 and
frequent extended treatment. Note' Black’s Law Dictionary, Edition, Fourth page 1030.
It seems that the Court rests its conclusion as to the “law in case” the following expressions relative 8, 9, 11, 3, ballots 10 and number in the Williamson, Court, found in the opinion this written by in the Judge Riley, Hatfield, case State v. S. E. 2d, page 818, 9, 11, reading 8, as follows: “Ballots 10 and Precinct evidently absentee were not by counted the Board for either and not party, counted this and Judges Haymond since Lovins Hammond, would count them for Judges Given for In Riley would count them either party. therefore, regard, counting the action of the Board in not is affirmed evenly divided Court. These ballots ballots placed were not the ballot box between the and, of the opening closing polls, opinion Code, are void because Judges Riley, Given 3-6-1Ó, as amended and reenacted Section Article Chapter Legislature, Acts of the has not been distinct Xs substantially complied with. Ballot bears and in Republican squares circle before for Republican names of Hammond and candidate Council in the Second Ward. Ballot 9 bears a distinct mark X in the and no other face Republican circle X marks in the squares thereof. Ballot bears distinct candi- Republican before the names of Hammond and the Ward, mark in the Second and no other date Council thereof; and 11 bears distinct Xs in on the face ballot of Hammond and the Re- the names before squares candidate Council in the Second Ward and publican no mark. not for the in de- irregularity other Were it before the closing these ballot box positing for Ham- they should have been counted polls, mond.” or fact must
A
of a matter
law
determination
*21
certain,
following
from the
appear
as will
clear
Stewart,
48
syllabus
Windon v.
W. Va.
points
a
of law or fact is
488,
By some process of reasoning,
me,
unknown to
opinion
Court’s
in the instant case states that
it
law of the case. I am not conscious that
the Court de-
cided anything
validity
of the four
ballots
3.
precinct
Campbell
Lynch
See
et
al.,
al. v.
88 W. Va.
209, 212,
869;
106 S. E.
v. Catzen,
1,
108 W. Va.
Kaufman
IAs understand, in the case of Hatfield, State v. supra, this Court did not decide any law, issue of fact or respect to the four Hager Co., ballots. v. Coal 112 W. Va. 666; 164 S. E. Co., Smith Gas v. 115 W. Va. 782; Reynolds S. E. v. Railway Co., 117 W. Va. 568;
S. E. Moran v. Coal Co., 124 54, 62, W. Va. 18 S. E. 2d 808; &Ice Fuel Co. v. Dankmer, 125 W. Va. 24 S. E. 89; 2d Mining Co. v. Klefeld, 125 W. Va. 24 S. E. 2d 98. All that was done this Court in the case of State Hatfield, supra, towas set out the facts with respect to the four 3 and state that the as then constituted evenly divided and that we did questions decide relative to the four ballots. I think is doing violence to logic say that this Court made any decision whatsoever, either of or fact, law with re- *22 to four The here-
spect quoted language those ballots. forth clearly set that. shows inabove considering validity Another the upon arises of the the Board and not counted rejected by four ballots Hatfield, or ruled on this Court in the case State supra.
The rejected seem to four absentee ballots have been for the the in four ballots precinct reason ballots, though clearly absentee marked for Hammond. in Hatfield, As shown State v. opinion Court’s supra, seem have the the ballots been overlooked election not until officers and counted after the posted. pertinent certificate of the results had been open- statute reads as follows: “At time between the and the ing closing polls day, on such election in the precinct, presence commissioners election of such other, envelope of each outer or open shall the carrier name the only, compare announce the voter’s absent the signature upon the upon application signature the the the voter’s envelope affidavit on ballot In election registration record. case the commissioners attested, find the executed -and properly affidavit duly correspond, applicant the the signatures precinct, registered, that he is duly elector of qualified in person and that not voted at such applicant has election, election, if has not or, primary in case of he suffrage, if he have exercised shall previously right age relative his executed the declaration proper intends to with which he qualifications party the en- affiliate, open election shall commissioner man- voter’s ballot such containing absent velope or the affidavit therein and destroy ner as not to deface therein, or inclosed without out ballot ballots take to be or ex- the same unfolded unfolding permitting then ballot shall deliver such amined. The commissioners clerks, shall at once proceed who poll or ballots to each of names the back of such to write their are required manner as other ballots same deposit thereupon A commissioner shall endorsed. box, same in the and the clerks shall indicate poll ballot registration on the record place appropriate personally, the same manner as if he had appeared voted, fact that such voter had and shall enter absent name In the poll the absent voter’s on the book. event insufficient, that such affidavit is found to be or that signatures correspond, applicant do or that is not in such or that he has a_duly qualified precinct, elector *23 election, in or person voted such that he has not registered, opened or that the ballot is or has open, been resealed, or that the ballot contains more envelope or, kind, than one of one in case of a any primary ballot election, if he shall have failed to execute the proper declarations to age qualifications relative his and the party affiliate, he intends to the to procedure with which prescribed chapter be followed shall be as in this relat- ing Provided, to at the .That notice challenges polls: a of challenge such a shall be sent the clerk of the absentee county respective by registered court to voter mail, 44, receipt requested.” Chapter with return Article 6, 1941, Legislature, Eegular Acts of the Session.
It will be noted that statute entire consists of directions to election officers as to the of handling method voters’ irregularities absent ballots. Mistakes and caused voter, instance, in destroy some but in irregularities mistakes and elections made or caused by officers of elections do not affect the election if a fair words, election In a has been held. other statute requir- ing perform election officers to certain generally acts was held to In Board directory. be Morris v. Canvassers, of 251, 500, 505, body 49 38 S. E. of the opinion W. Va. following language: will be found the “We know of are large regulating volume of law that statutes elections directory, treated as mistakes and frequently voter, not a should disfranchise irregularities deprive vote, candidate of his intent of purpose where Jackson, the voter can be ascertained. Loomis v. 6 W. Va. 613; Hollandsworth, 1, 39 W. 557.” The Dial v. Va. S. E. foregoing principle uniformly has been followed this following in accord statute: “No bal- jurisdiction with not lot technical error which does rejected shall be Chap make it voter’s choice.” impossible to determine the 44, 5, 19, (b) (3), Acts Sub-paragraph ter Article Section 1941, of To the same Legislature, Regular Session. (c), Barnes’ 34, Chapter Sub-paragraph effect is Section me, this Annotated, 1923.To amounts Virginia West Code to a to count legislature command from the statutory highly thereto is objection four ballots in 3. The Canvassers, Phillips technical. v. Board 64 W. Va. of Elections McCrary S. E. 392. Section 724 of on “ clearly in weight authority ‘The reads as follows: hand, to a strict voter, one holding favor things requires of those which law performance con him, other, him from the and, relieving on the of election officers part a failure on the sequence of statute, the letter of the according their duties perform fair prevented election. such failure has where may and it be said rule is justice apparent, this determining applied to be underlying principle approval The above is quoted ”. question’ Canvassers, 126 S. 98 W. Va. v. Board Hatfield *24 Court, 167, E. v. 113 Va. 167 S. Rollyson 714. See W. E. 366, 168 41; State 83; v. Co. 113W. Va. S. E. Chapman Carr, 793; v. Canvassers, 498, 168 S. E. Brown 113 W. Va. Mills, 401; State v. 132 W. 455, 460 43 S. E. 2d 130 W. Va. 2d 416. 53 S. E. Va. thus, treatment, regular and uniform
It seen will command has statutory Court has followed the reasons, when the ballots for technical reject refused from the face could be ascertained of the voters intention of the ballots. and 11 9, 10 show
Undoubtedly, ballots numbered Hammond, to cast their ballots for of the voters the intent alleged ruling of an because rejected have been a Court. Hatfield, supra, by State v. divided in the case of or a ruling, judg- decision my concept is not That constituting and fact “law on a of law ment count I therefore ballots numbered case”. would 10, 1952, June at the election held and 11 cast City of for Hammond. number 3 of the Williamson