Dial v. Hollandsworth

Dent, Judge: At the general election for state and county officers held in the county of Lincoln on the 8th day of November, 1892, J. M. Dial was the candidate of the People’s party, and was indorsed by the Republican party, and J. M. Hollandsworth was the candidate of the Democratic party. On the face of the returns Dial received one thousand and ninety three votes, and Hollandsworth received one thousand one hundred and twenty one votes, which gave the latter twenty eight majority. The canvassers declared Hollandsworth elected. Dial contested. The County Court decided the contest in his favor. Hollandsworth appealed, and the Circuit Court reversed the County Court. Dial then obtained a writ of error to this Court. This being a case of statutory remedy, and the statute only providing for an appeal to the Circuit Court, it is a serious question whether this Court has jurisdiction to review the judgment of the Circuit Court. While the constitution gives this Court jurisdictioniu cases of quo warranto, it certainly was never contemplated to turn the Supreme Court into a returning board as part of the election-machinery. But, as this decision will not affect the determination of the Circuit Court, it is unnecessary to pass on th'e question of jurisdiction, as both litigants prefer a hearing of the matter on its merits. The only question now presented by the pleadings and evidence in this contest is: Should the votes cast at precinct No. .1, Hart’s creek district be excluded from the canvass of the vote as to the office of sheriff? If they should be excluded, the result of the election, as ascertained by the can [3] vassers, would be reversed in favor of the contestant. The sole ground for asking for the exclusion of these votes was the misconduct of the commissioners of election in appointing two extra ballot-clerks, making four in all, and allowing two of them, both Democrats, to take charge of the booths and fill up all ballots when either called upon or they volunteered acceptably to the voter. ETo fraud or corruption is proven; but contestant insists, that from the fact, that these ballot-clerks had the opportunity to corrupt the poll, the court must presume they did so and therefore reject the count. While ordinarily such misconduct unexplained raises grave suspicions, and would require but a small amount of additional evidence to destroy the presumption of fairness and sustain the charge of corruption, yet in this case the officers of the election have given a reasonable, although not a legal, excuse for their conduct, aud the contestant has failed to produce any evidence of unfairness tendingto sustain the fraudulent practices alleged in the notice of contest. So far as anything in the evidence is contained, it tends to show that there was a free ballot and a fair count as to every vote cast at this preciiict. And, while the secrecy of the ballot was not preserved, and the law in that respect was not strictly followed, the result of the vote was apparently the same, as it would have been, if the law had been followed. The syllabus in the case of Loomis v. Jackson, 6 W. Va. 613, relating to questions of this kind, is as follows, to wit: “(11) 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-ofiicers a plain, easy, and direct way by which they are to attain the great end of their creation, viz. to ascertain tire 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 irregularity9 mistake, or even fraud committed by any of the officers conducting the election, or by any other person, can be per4 mittecl to defeat the fair expression of the popular will as expressed in said election.” “(13) What irregularities are held to be immaterial ? 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. A different rule would make the manner of performing a public duty more important than the duty itself.” 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 commissioner, 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 position to defeat a fair expression of the popular will, if dishonest enough to do so and willing to risk the chances of confinement in the penitentiary. Against the honest conduct or upright character of these persons or the contestee there is no evidence except thefact that they were from the same political party or nearly so. What they did was done, as they had reason to believe, in the discharge of a public duty as sworn officers under the immediate surveillance of the lawful 'commissioners of the election, and no witness casts on them even the shadow of suspicion or doubt. Nevertheless the court must, in the earnest language of the counsel, “put halters around their necks” and presume, because they were in a position to commit a felony, that they did so. In the language of the law quoted above before we can reject this vote, we must be able to say that by misconduct the “result of the election was changed.” It is not sufficient to say that it is possible that it might have been [5] changed, for-that would not justify action on our part, but would be an arbitrary subversion of the popular will on mere suspicion. In the able opinion of Judge Woods in the case of Loomis v. Jackson, supra, authorities bearing on the question here raised are cited to the following effect, to wit: “The following irregularities have been held to be immaterial: Where the inspector acted as clerk, and where more than the lawful number of inspectors acted at the election (People v. Cook, Brightly, Elect. Cas. 452); where the clerk assumed the place of an absent inspector (Thompson v. Ewing, 1 Brewst. 69); where one of the clerks during the election-beeame so much intoxicated as to be unable to continue his labors, and another person was called, who acted in his place without being sworn, until the regular clerk was able to resume his labors (see Boileau's Case, Brightly, Elect. Cas. 268; People v. Cook, Id. 452); where the election officers being illiterate called in a person, who was not an election-officer or clerk, to take the ballots' from the box and read them to the tellers at the invitation of the election-officers (see Sprague v. Norway, 31 Cal. 175) ; the omission of the inspectors while counting the votes to take out the ballots deliberately from the boxes, and read aloud the names printed thereon (Skerrett’s Case, 2 Pars. Eq. Cas. 515); and, lastly, the omission of the judges or clerks of an election to sign the poll-books, to fill up blanks in the caption, or to state the aggregate number of the votes, all which may be corrected by parol and, when corrected, used as competent evidence of the result of the election (Powers v. Reed, 19 Ohio St. 189).” See, also, Mechem, Pub. Off. §§ 222 — 224, p. 143. To permit the misconduct, innocent or otherwise, of election-officers or other persons to furnish a sufficient excuse to overturn the expressed will of the people would be setting an extremely dangerous precedent, and would be far more disastrous to popular suffrage than to allow the result of an election to stand which has been fairly ascertained by sworn officers, whose integrity is unimpeached, although they may have been innocently guilty of the grossest irregularities in disregard of the plain requirements of the law. [6] The burden of proof in election contests, as in all other cases of alleged fraud, is on the contestant, who must establish it by a preponderance of testimony. Failing to do so the courts can afford him no relief, for otherwise they lend their aid to subvert what it is their duty to maintain, and become at best merely returning boards. An abiding confidence in the patriotism, obedience to law and love of justice of the citizens of this state without regard to political affiliations lead ns to believe that the evil prognostications of contestant’s counsel will prove groundless, and that the election-law, when its wise provisions are fully comprehended, will he faithfully carried out, notwithstanding the result of this litigation. Hut, however this may he, our conclusion is, that there is no sufficient reason shown to justify us in setting aside the result of the election as ascertained by the canvassers and ratified by the judgment of the Circuit Court, which is therefore affirmed.