State v. Board of Canvassers , 107 W. Va. 109 ( 1929 )

I concur in the final conclusion of the Court, but cannot fully accept the doctrine of res judicata as defined and applied in the opinion written by JUDGE HATCHER or in the concurring note of JUDGE MAXWELL. I think, except for mutual mistake of the parties, the petitioner would be precluded by the former adjudication. I am opposed to the view that the present issue was not involved in the former proceeding, and am also of opinion that all facts (contested oradmitted) forming the basis of the judgment therein are resjudicata.

Title to the office of sheriff of Nicholas county, the issue in the former case, is the issue in this proceeding. The first case was brought to review the rulings of the board of canvassers on certain contested ballots and to compel the board "to cancel and annul the certificate of election issued to W. E. Morton, and to declare petitioner to have been duly elected to said office, and to issue to him a certificate of election as required by law." The petition in the present proceeding prays for a writ of mandamus compelling the board of canvassers (1) to change its orders of December 3 and 20, 1928, so that it will be made to appear that respondent, W. E. Morton, received 3743 and the petitioner 3733 uncontested ballots; (2) to set aside its order of December 20, 1928, in so far as it declares the election of said W. E. Morton to the office of sheriff, and (3) to "enter a proper order declaring petitioner, Ray Lambert, to have been regularly elected sheriff of Nicholas county." In view of this situation, it will not do to say that the former judgment was limited to a review of the contested ballots. It was not, and could not have been, so limited. The board of canvassers was required by that judgment not only to accept the ruling of this Court, giving to Morton 50 and to Lambert 62 of the contested ballots, but to enter an order showing that each had received 3795 votes. The rulings of the board of canvassers on contested ballots could not have been reviewed unless it had been made to appear from a consideration of both the contested and uncontested ballots that Lambert had received, at least, as many votes as his opponent. Otherwise, the questions involving the contested ballots would have been moot. Hatfield v. Boardof Canvassers, 98 W. Va. 41. The United States Supreme Court, in Aurora City v. West, 74 U.S. 82, speaking of the effect of a former adjudication on facts therein involved, says: "It makes no difference in principle whether the facts from which the court proceeded were proved by competent evidence, or whether they were admitted by the parties."

The uncontested ballots are as necessary as the contested ballots to support the judgment of this Court, requiring the board to count for each candidate 3795 votes. If an adjudication is conclusive only in cases where all of the pertinent facts are disputed, then the doctrine of res judicata would seldom, if ever, be applied.

JUDGE WOODS concurred in the foregoing note of JUDGE LITZ.