Dent v. Board of Commissioners , 45 W. Va. 750 ( 1898 )

Brannon, President :

William R. D. Dent and Humphrey F. Brohard were competing- candidates at the election in November, 1898, to represent Taylor County in the House of Delegates. The board of canvassers found upon the returns of the officers of election at the various precincts that Brohard received one thousand six hundred and seven votes and Dent one thousand five hundred and twenty-six votes, electing Brohard by eighty-one majority. Dent demanding a recount, a recount claimed by Dent as complete showed that Dent received one thousand five hundred and fifty-eight votes, and Brohard one thousand five hundred and twenty-one votes, giving Dent a majority of thirty-seven. There being a vacancy in the membership of the county court, the canvassing board was composed of two commissioners, W. J. Curry and J. K. Means. Curry signed a statement and declaration upon the book called “Election Record” that Dent was elected, and he signed and delivered to Dent also a certificate of his election. Means did not sign said entry on the election record, but refused to do so, and refused to sign Dent’s certificate of election, and on the contrary, caused to be entered of record in the office of the county court — if that be material — a declaration that Dent received one thousand five hundred and twenty-six votes and Brohard one thousand six hundred and seven, as shown by certificates of the precinct officers; and that he declined to unite with Curry in declaring such result as Curry found by such recount, as he was not satisfied that such result was coi'rect; and Means issued and delivered a certificate of Brohard’s election. Dent asks of this Court a mandamus to compel said Curry and Means, as composing- said board of canvassers, to declare the result as ascertained by said recount, and to sign certificates thereof, and transmit one to William M. O. Dawson, Secretary of State, and one to each of said candidates. An alternative mandamus having- been awarded, Means filed a return and Brohard has intervened, and filed a return to said alternative writ, and plaintiff, Dent, has demurred thereto.

I remark that Dent’s petition' does not seek a mandamus to review the action of the canvassers for error in counting ballots, and to have this Court recount ballots and declare the result, and thus the case does not seem to me to raise the very grave question which would then arise, as-to the jurisdiction of the judiciary to count ballots, and declare the result of an election for the House of Delegates, in view of the provision of the Constitution that each branch of the legislature shall be the judge of the election and returns of its members. The plaintiff’s case is based solely on the theory that there has been a complete recount of ballots electing him, and that he is entitled to a declaration and certificate thereof by said canvassers to give him a frima facie title to the office. I think there are three reasons against awarding a peremptory mandamus. One reason is that there is no finished, legal recount, by which both commissioners found a final result, so as, in law, to call for the signature of both commissioners to the declaration and certificate. The statute says that when the canvassers canvass the returns, whether with or without a recount, they shall enter the result in the election record, and deliver certificates thereof. This record entry and certificate must, in the words of the act, be signed “by the board or a majority of them.” This record entry has not been signed. It is urged that Means’ return admits that there was a recount, showning Dent elected, and that upon it a mandamus should go. The return cannot receive such construction, taken as a whole. That return does say that the canvassers opened the packages of ballots after they had been sealed up upon the first count, and that they were read by Curry, and the tally kept by the clerk, and that according to the report of the clerk, Dent received, one thousand five hundred and fifty-eight votes and Brohard one thousand five hundred and twenty-one, but that Means did not agree with Curry as to the correctness of said recount, and that Means refused, and still refuses, to make a record of the same, and that thereupon Curry, of his own motion, in the absence and without the knowledge, consent, or concurrence of Means, made the record in the election record purporting to be the record of said recount; that Curry claimed that a true and complete recount had been made, and desired to record it, but that he (Means) was of opinion that a full and complete recount had not been made, and he refused, for that reason, to record the same. Said return says: That the recount began at 9 o’clock A. m., of November 15th, and continued until 3 o’clock next morning, with the exception of one hour for dinner and one hour for supper; and that the board handled and considered over three thousand one hundred and twenty-nine ballots, all being considered as to three offices, and a portion as to four. Two hours were consumed by counsel in argument and other matters incident to the work. That the inspection and count were hurriedly made, and under such circumstances that he (Means) was not and is not certain of the accuracy of the recount. That he was not well, and during the greater part of the recount was physically exhausted. That said Means found that said recount showed in one precinct a change greater than one vote in four from the result as determined by the commissioners of election at that precinct, and very great changes at other precincts. That he believed and says that a more careful inspection of the ballots will determine their genuineness and the correctness of the canvassers in reading them, and of the clerk in reporting the count, and was necessary to determine accurately, and do justice to the parties. That for these reasons he did not believe that an adequate, full and just recount had been made; and that such recount had not been made; and that said recount should not be recorded, and certificate issued, until an opportunity is given the canvassers to require the attendance of the commissioners, poll clerks, and others present at said election to testify respecting the same, and especially to ascertain the genuineness of the ballots; and that no such opportunity-had been given, and no such witness had been examined touching such questions. That the ballots at precinct No. 5, Grafton district, were not sealed by the commissioners as required by law, nor the names of the commissioners written upon the envelope containing them, as required by law, but that they were only partially inclosed in a torn envelope, not sealed, but only tied about with common tWirie, and neither sealed nor signed by the commissioners. That no sufficient and proper inspection or recount of the ballots at that precinct, and others cast in said election, was had. The return further says that: “Immediately after said Curry had the record of said partial recount, made as aforesaid, entered upon the record book, he, the said Curry, absented himself from Taylor County, left the State, and remained absent for more than a month, and until the day respondent’s successor entered into office in the place of respondent; that during this time respondent was unable to make a full and complete canvass as to said recount, for the reason that he and said Curry composed the said board, and, in .the absence of said Curry, no quorum could be secured; that during all this time, up to his retirement from office on December 19, 189Í3, when his successor went into office, respondent was exceedingly anxious to complete said canvass, and ascertain and declare the true result of said election.” Said return further states that at the time ,of making said “partial recount he became convinced that a more careful examination of said ballots should be had for the purpose of determining their genuineness” Brohard alleges that-he and his counsel were refused an inspection of the ballots on said recount.

I have stated enough of the contents of Mean’s return to show that it cannot be construed as admitting, but must be construed as denying, that a recount, finished and com- . pleted, existed, so as to warrant a mandamus to compel Means to approve it, and sign a certificate thereof. If the application were to compel the commissioners to reconvene and ’ recount, that would present another question; but here ’it is claimed that there was a perfect recount, and that it only remains to execute it. In no sense can we regard this recount as so completed. One canvasser says that it is correct, and satisfies his judgment and conscience ; the other says it is not correct, and does not satisfy his judgment and conscience.-. Shall he be compelled to give an assent under such circumstances? It may be asked, shall a canvasser be allowed to withhold a certificate of election by merely saying that he is not satisfied with the result of a recount? If it clearly appeared to the Court that he was wrong in so refusing, the Court would compel him to accede; but we have no ballots before us, if we lawfully, could have for this .office* and we cannot say that Means is willfully acting against his duty under oath when he tells us under oath that his judgment and conscience were not satisfied, and he was present in the county, ready to make further canvass and inspection of the ballots. I know that the duty of canvassers is, as to the general function of making a canvass, ministerial; but within the pale of that action their action is in some respect qztasi judicial, calling upon them to exercise judgment and discretion. Thus they act judicially in determining that the ballots, poll books, and certificates of the election returns are genuine or altered. Brazie v. Commissioners, 25 W. Va. 213. I have no hesitation in saying that if a canvasser,, before he signs a result, becomes dissatisfied, and desires a review and re-examination and recount of the ballots, he has. a. right to have it. He has a discretion in making up his mind. Though a candidate has no right to a second recount, surely a member of the board has, in order to finally make up his mind. When his return states that, upon a recount it does not find the true result, and that he did not assent to it, it seems to me that ends it; and he will no more be compelled to sign than would a judge be compelled to sign a bill of exceptions by mandamus when he says that it does not truly state the facts. I repeat that if we had the ballots before us, and could see that Means was corrupt, or partisan, or arbitrary in refusing his assent, we might, perhaps, compel him to give his assent; but, without such ballots, how can we say whether his hesitation is proper or improper? How can we say that his discretion has not been properly exercised? How can we deny him the exercise of judgment and discretion of a pub-lie officer under oath? If we follow Judge English in Marcum v. Commissioners, 42 W. Va. 273, (26 S. E. 281), we must refuse the mandamus in this case. He stated that the writ does not lie to compel the exercise of discretion by an inferior tribunal in a particular way; that, while it will be compelled to act in some way in the matter (that is, compelled to action), yet it will not be compelled to act in a particular way, where that manner involves the right to exercise discretion, — compelled to act, hut not directed how to act. He. said that, as the ballot commissioners of Putnam County had acted by putting- one candidate on the ballots, yet .they could not be compelled to put a different candidate on, though he was the leg-al nominee of the party. Apply Judge English’s doctrine in this case. Both canvassers, Curry’and Means, did act, one in one way, the other in another; one received the ballots as telling the result, the other received the precinct returns as evidence of the result; one declared Dent elected, the other declared Brohard elected. It is now proposed to make Means declare Dent elected; that is to exercise his discretion and judgment in a particular way, contrary to the principles stated by Judge English. Those principles are sustained by law, as a general proposition. In that case the majority of the Court held that under chapter 25, Acts 1893, mandamus could be used with the same effect as certiorari in reviewing action of officers under the election laws, and that the writ had wider scope therein than under the common law as expounded by Judge English. And so I say now, in matters of election, when mandamus is used to review the action of election officers, and to reverse them for error, it is efficacious even in matters where those officers are vested with discretion; but that is because of that statute, and is not at common law. But note that this mandamus does not seek to review the work of these canvassers, does not bring before us the ballots, that we may see whether the action of one or the other canvasser is right. On the contrary, it assumes the recount as made, and asks us to compel Means to approve it when he disapproves it, and his action and judgment were contrary to it; thus asking us to compel his discretion in a certain direction. The case thus falls, not under that statute, but under the common law as laid down by Judge ENGLISH. In declaring- the result on the mere certificates from tbe precincts, canvassers act purely ministerially, and, but for the statute allowing a recount, they could not go behind those certificates. McCrary Elect, s. 227. And upon a recount I have heard it sug-g-ested that the character of the function changes, and that the board becomes a court with judicial powers, having additional discretion, and bound to exercise judgment in some matters; for instance, to construe ballots, and say for whom they were cast, or whether the ballot is void or not. If this doctrine be true, the case is clearer against a mandamus. Whether still canvassers or not, a mere ministerial body or not, their action involves discretion beyond what it does when acting only on precinct certificates. I conclude, therefore, that, in the absence of a coriiplete recount, joined in by both commissioners as final, a mandamus cannot issue.

I now give another reason against awarding a mandamus. It is undisputed that at two precincts, casting hundreds of votes, the ballots were not sealed up in closed envelopes, with the names of the commissioners written across the seal. When the commissioners went to put’the ballots in the envelopes, the envelopes were torn half way down or more, so that they could not be sealed, and so that the officers could not write their names upon them, and were merely closed with twine strings tied about them, and thus transmitted by the hands of individuals' to-the clerk’s office, where they remained in the ballot boxes for for some days, until the canvassers met. Now, I disclaim utterly any imputation upon anybody of tampering with or altering these ballots. But this I state as a legal proposition; that, as evidence before that board of canvassers, the certificates made at the precincts were frima facie evidence of the result, and good until shown to be wrong. These certificates-are made in the presence of numerous election officers of different parties eyeing the count, and that with scarcely any motive for wrong, and they are likely to tell the truth. The burden is on him who denies their truth to show that they are wrong. 6 Am. & Eng. Enc. Law. 335; McCrary, Elect, s. 445; Cooley, Const. Lim. 788. The ballots themselves are the highest evidence of tbe result, when their identity as cast is established. McCrary, Elect. s. 443; Hartman v. Young, (Or.) 20 Pac. 17. But, if those ballots have not been preserved with the scrupulous care and in the manner directed by law, they lose their force as evidence of the result, and do not overthrow the precinct returns. “Where the ballots are preserved properly, so that they may be recounted by the order of corurt, they will govern, when there is a difference between them and the returns. But this should never be' allowed unless the recount is made under such circumstances that it will be presumed' to be more accurate than the official count, or where the ballots have been so kept that thebe is no danger that they have been tampered with." 6 Am. & Eng. Enc. Law, 335. “If there is evidence tending to show that the ballots are not sealed up after being counted by the board of canvassers, * * * the bállots, on a recount by the board of supervisors, are not the best evidence, but the court may adopt the result arrived at by the board of canvassers.” People v. Burden, 45 Cal. 241. “If they have not been kept or protected with that zealous care which the statute contemplates, or so as to preclude opportunity for intermeddling with' them, they are the' weakest and most unreliable evidence. ” Hartman v. Young, supra. “If the ballots have not been kept as required by law, and surrounded by such security as the law has prescribed with a'view to their safe preservation as the best evidence of the election, it would seem that they should not be received in evidence at all.” Cooley, Const. Lim. 625. This doctrine is abundantly supported. Hartman v. Young, supra; Quinn v. Lattimore, 120 N. C. 426, (26 S. E. 638); Andrews v. Probate Judge, 74 Mich. 278; (41 N. W. 923); McCrary Elect, s. 443, citing Hudson v. Solomon, 19 Kan. 177; Martin v. Miles, 40 Neb. 135, (58 N. W. 732). Paine, Elect. s. 776, says that, “before courts or legislative bodies should receive the result of recounts, there must be absolute proof that the ballots have been safely kept, and that they are the identical ones used at the election,” and that not until this is -proved beyond all reasonable doubt can force to be given to the recount. Judge English, in an opinion concurred in by Judge Dent, in a case where there was no whisper that the ballots were not the true ones cast, held that when they were not sealed up they could not he counted. Snodgrass v. Wetzel Co. Ct., (29 S. E. 1036); 44 W. Va., 56. He'said that the law did not intend that even the clerk should have access to ballots required by law to be returned in a sealed package, properly endorsed, until such package was opened by the canvassers. But there was the precinct certificate, showing the same, result as the ballots, while here they differ. The certificates prevail. I do not mean to say that there was any wrong touching these ballots, though the returns charge it. It was only a question before the board as to the 'force of two instruments of evidence, one being the ballots, the' other the precinct returns; and I am bound to hold, under the principles just stated, and that the precinct returns' prevail in law over the ballots, and, instead of entitling Dent to the certificate, would give it to Brohard. Then how can we compel Means to declare Dent elected upon the strength of the recount that was made, thus giving superior weight to the ballots over the certificates?

There is‘another reason against the award of a mandamus.' When the petition for it was presented, Means had ceased to be a commissioner of the county court by expiration of his term. “A writ of mandamus cannot be brought against an officer in his official capacity after his term of office has ended.” 13 Enc. Pl. & Prac. 661; High, Extr. Rem. s. 441; Stock Co. v. Smith, 165 U. S. 28, (17 Sup. Ct. 225.) If there was a completed recount, as spread upon the record and signed by Curry, the mandamus should have been against'the commissioners in office at its date, as the county commissioners are a continuous body, and nothing, remained but to sign the result of the recount, if it had been in fact complete, as it in fact was not, under the circumstances' developed in this case. Alderson v. Commissioners, 32 W. Va. 454, (9 S. E. 863.) Judge McWhorter concurs herein. The alternative mandamtis is dismissed.