60 W. Va. 59 | W. Va. | 1906
Lead Opinion
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 re•count 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 bjr Musick,
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, Junara 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 jioint 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 eertirorari; 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; Fowler 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 eertiora/ri to the decision of the county court in. such case:but this has been changed by statute. This malíes no difference as to the question of jurisdiction by this Court. It will be observed that the constitutional provision, section 24, Article Yin., uses the word “cases” in. relation to election contests for county and district offices. We, therefore, con-
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
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, designated 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 K,. W. Buskirk and T. G. Burgess acted as poll clerks; that, before the election commenced, J. H. Green was named by a voter or voters of his political party for poll clerk, and was voted for by persons present; that B.. W. Buskirk was also named, and voted for by persons present; that, after such voting, Buskirk “jabbed his pistol down in his pocket and said, ‘By God, if I don’t be poll clerk, nobody else would be,’ ” (only one witness saw the pistol); that both Green and Buskirk entered the election room; that, of the two election commissioners of the same party to which Green and Buskirk belonged, one voted for Green and the other for Buskirk; that the commissioner of
The object of an election, in a popular form of government, is to obtain a free, fair and untrammeled expression of the will of the people with whom the elective franchise has been placed. Every qualified voter has the right to freely cast one ballot, and to have that ballot express his choice, and to have it counted as cast. Without the freedom and purity of the ballot, the experiment of self-government fails. When it becomes apparent that an election is a subversion, rather than expression, of the will of the people, or that the result is attended with such uncertainty that it may not be ascertained, the election should be set aside. Elections being necessary to the existence of a popular form of government, the policy of the law is to uphold them when it can be done consistently with legal principles.
“In election cases, however, before a return can be set aside, there must be proof that the proceedings in the conduct of the election, or in the return of the vote, were so tainted with fraud that the truth cannot be deduced from the returns.” McCrary on Elec., section 569.
“If we keep in view these general principles, and bear in mind that irregularities are generally to be disregarded, un
In Dial v. Hollandsworth, 39 W. Va. 1, Judge Dent, delivering the opinion of the Court, quotes approvingly the following language: “Many provisions of the law in regard to the manner of holding and conducting the election and counting the votes and certifying the result, must be held to be directory only, and intended to point out to inexperienced and ignorant persons, who sometimes act as election officers, a plain, easy and direct way by which [they are to attain the great end of their creation, viz., to ascertain the true result of the election. When the true result of the 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 elecion, or by any other person, can be permitted to defeat the fair expression of the popular will as expressed in said election.
“ What irregulatities are held to be material? It is affirmed that no irregularity, or even misconduct, on the part of the election officers or other persons, will vitiate an otherwise legal election, unless the result thereof has been thereby •changed, or rendered so uncertain as to make it impossible to ascertain the true result. Á different rule would make the manner of performing a public duty more important-than the duty itself.” Judge Dent adds: “There is no good reason why these principles should not apply to the present •election law, as well as to any other. The contestant neither alleges nor proves that the result of the election was changed, or rendered so uncertain as to make it impossible to ascertain the true result; and yet he wants the. Court to set aside the ■election, and declare him the choice of the people, for the sole reason that the commissioners, acting out of a too abundant fear that all the voters would not have an opportunity to vote, and so the right of suffrage be denied them, appointed two additional ballot, clerks to assist in holding the election, and thus unlawfully placed these persons in a posi
Applying these principles to this case, the members of this Court are unanimously of the opinion that the irregularities which the contestant’s evidence tends to . prove, are insufficient to render void the election at Matewan Precinct.
We deem it unnecessary, to take up each irregularity mentioned. A few claimed to be the most serious, will suffice for illustration. The election room was in the same building which was established by law as the place of voting. It was changed since the election of 1900, so that the entrance was from another street; but it is not shown that any voter .was misled, or that the result was changed thereby. The mere fact that the election was held in two rooms, instead of one, will not of itself, without showing change of result, invalidate the poll.
The kind of ballot box is prescribed by statute; but the statute also provides that, if no ballot box be found, the commissioners may make one. Code, chapter 3, section 42. It cannot be conceived that the mere fact that there was a hole in the ballot box, when it is not shown that such defect affected the result of the election, would be sufficient to invalidate it.
It is claimed that poll clerk Buskirk was a usurper. Be that as it may; we deem it immaterial. In Dial v. Hollandsworth, it was shown that there were four poll clerks, two of whom were usurpers. The usurpers acted separately in assisting voters to make out their ballots; and yet, this Court upheld the election.
The few instances of electioneering by the poll clerks shown in this case, by which no vote was changed, we think also
The admission of the votes of persons challenged, without the statutory affidavits, we think likewise insufficient to invalidate the election. The statute provides that a person challenged shall not vote, unless he makes the statutory affidavit, but, if he does vote without the affidavit, his vote may be thrown out if illegal. The result could not be more than an illegal vote; and illegal votes are insufficient to invalidate an election where they can be thrown out, or where it is not shown that they are sufficient in number to change the result. State v. O'Day, 69 Ia. 368; Esker v. McCoy, 5 Ohio 573; Rader v. Board of Education, 57 W. Va. 220; Brazie v. Comrs., 25 W. Va. 213.
We might review each irregularity claimed, reaching the result that it is insufficient to invalidate the election. We are, therefore, of opinion that the circuit court erred in holding that the election at Matewan Precinct was void by reason of the matters shown under the first ground of contest.
What we have said does not conclude this case, as the second ground of contest by the contestant is in effect that three hundred and thirty-seven of the votes cast and counted for contestee at Matewan Precinct were void, under the decision in the case of Kirkpatrick v. Deegans, 53 W. Va. 275, by reason of the fact that they had been signed by one of the poll clerks for both. It is shown that all but four of the ballots cast at Matewan Precinct were so signed.
Controversies in relation to the election of county officers of Mingo county, at the election of 1904, 'have previously been before this Court for decision. The cases involving such controversies are Stafford v. Board of Canvassers, 56 W. Va. 670, and Stafford v. Board of Canvassers, 50 S. E. Rep. 1016. It appears from the evidence that, during the recount for county officers by the board of canvassers, the ballot box and the ballots cast at Matewan Precinct, as well as other ballot boxes, were placed in the custody of the sheriff, by order of the board, in whose custody they remained for a
W e might detail all the evidence, but we deem it unnecessary to do so.- When the evidence is considered, the proof of tampering is complete. The burden was on contestant to rebut the prima facie case of tampering presented by the appearance of the ballots. He has wholly failed to do so.
It is held in the last Stafford case that certificates of the result of the election, made by the commissioners of the precinct, are prima facie evidence of the result of the election. The ballots, if identified as the ballots cast, are 'primary and higher evidence; but, in order to continue the ballots as controlling evidence, it must appear that they have been preserved in the manner and by the officers prescribed by the statute, and that while, in such custody they have not been changed or tampered with.
“Where, in an election contest, it appears that the ballots have been changed, or so exposed as to afford opportunity to be tampered with, or left in the custody of an officer or other person so personally interested in the result of the election as to be subject to the temptation or inducement to alter them, the presumption of their integrity is lost, and they are not to be accepted as evidence.” Hamilton v. Young, 81 S. W. Rep. 682.
“It must affirmatively appear that they (the ballots) have been preserved with that jealous care which precludes the opportunity of being tampered with, or the suspicion of change, abstraction, or substitution.” Davenport v. Oelrich, 104 Ia. 194. See, also, Farrell v. Larsen, 26 Utah 283; DeLong v. Brown, 113 Ia. 370; Windes v. Nelson, 60 S. W. Rep, 129; Jeter v. Headly, 186 Ill. 34; Fenton v. Scott, 17 Ore. 189.
It may be urged that the Stafford case does not apply here, because the canvassing board was a ministerial body, and that a court of contest is judicial. While a board of canvassers is generally a ministerial body, yet it exercises quasi judicial functions as to some matters before it. In Brazie v. Comrs., supra, Judge Snyder, delivering the opinion, says: ‘‘While the duties and powers of the commissioners are mainly ministerial, they are quasi judicial so far as it is their duty to determine whether the papers laid before them by the clerk, and purporting to be returns, are in fact such genuine, intelligible and substantially'authenticated returns as are required by law. To the extent here indicated, a judgment in the nature of a judicial function is necessarily exercised; for if it be otherwise, the whole law is inoperative in respect to the power of the county commissioners to do any act whatever.” To the same effect is Dent v. Board, 45 W. Va. 750. It will be observed that in the Stafford case this Court directed the board to receive the evidence of the poll clerks and commis-sionei’s of election, to show whether or not the ballots were void for want of signing by both poll clerks, and if it found them all void, to reject the precinct, but, if not all void, to compare them with the certificate return, and in case of disagreement to take the certificate. Under this mandate, the board exercised judicial, or quasi judicial, functions. It heard evidence, and determined from that evidence whether or not the ballots were void, and, not finding all ballots void, it compared them with the certificate return and determined that there was disagreement. These acts required the exercise of judicial determination. They were not merely ministerial. Under that decision, the canvassing board had as full judicial power to determine the void character of the ballots arising from failure of both poll clerks to sign the ballots, upon the evidence before it, as the court of contest had upon the evidence before it. We agree that the court of contest has a wider power to admit evidence; but if, after the evidence is admitted, it shows a case practically the same as that upon which the board of canvassers was directed upon the recount to take the certificate return, we think that the court of contest must do likewise. There is a change of forum, it is
For the reasons stated, the final order of the circuit court in this case is reversed. Proceeding to enter such judgment as the circuit court should have entered, we declare, as the true result of the election held on the 8th day of November, 1904, for the office of sheriff of Mingo county, for the term beginning on the first day of January, 1905, that the con-testee, E. E. Musick, received fourteen hundred and ten votes, and that the contestant, H. H. Williamson, received thirteen hundred votes, and that said contestee was elected to said office for said term.
Reversed.
Dissenting Opinion
(dissenting):
I think the powers of a court of contest are more ample than those of a board of canvassers, and that it is not bound or controlled by the decision of the canvassers on any question properly raised in the court of contest. A canvassing board has power only to count and declare the result of the count, and all the judicial power it has is simply such as is incident to the act of counting. When because of tampering it cannot count the ballots it must take the certified result, if there were any legal ballots cast. It has no power to throw out a ballot because it was cast by a person not entitled to vote, nor to decide against a candidate on the ground of ineligibility. And any decision it makes lacks finality. It only determines the prima facie right, and the final and absolute determination of the right is with the contest court, if the question be carried into that court.
The court of contest is armed with full judicial power. It is not limited to the mere matter of counting. If it can see clearly that a man is elected, without being able to specify the exact number of votes received, it has the judicial power to declare him elected. These candidates came to Matewan precinct with their respective votes standing as follows: Mu
Believing the court of contest has power to declare the result, in accordance with plainly apparent right, although unable under the rules of counting to specify the exact number of votes received, I cannot concur in the decision. In these-views, Judge McWhorter concurs.