Martinsburg statesman. [volume] (Martinsburg, W. Va.) 1869-1906, 1904-04-01
AS All Reads Lead 0 Rome, So Do All De-
SciSlOnS Lead to Success Of Republican
Candidate.

NThe Supreme Court Of Appeals
Tuesday .norHing handed down its
decision in the election case from
Berkeley county in the name OF Dol
IS /. L. Bender, whereby the action
of the Court below is affirmed and the
defendant, Bender, the Republican
candidate, held entitled to the office
OF Clerk of the County Court of Berk.
eley county. The opinion Of the Court
was written by Judge Brannou, anc
concurred in by all the other judges
Judge Dent filing a coneurring opin
Hon, whereby he arrives at the same
conclasio with the other members o.
the court, but by very different pro.
cess OF reasoning.
The attorneys for Doll, the Demo.
cratic contestant, seemed 10 rely with
great confidence upon the holding oil
the Supreme Court in the case of Ham
Morris, Jr., VS. The Boards w. Va,
400 and Daniel vs. Sims 40 w. Va,
554, both OF which cases will be well
emembe: I'd by all persons in Kanaw-
ha and Fayette counties IS holding
that the requirements of the statute
as to the manner in which the voter
shall mark his ballot to express his
Tutensiou are mandatory, under which
rule SO laid down in said cases, Doll
would have been elected by a few
votes. But the majority of the Court
indicates that vely different opin-
ion in regard TO cases of this charac-
ter is now entertained by that body.
In the present decision it is held
Though a candidates name is
written in the space above tue Office
on ballet. it will be held vote for
him for the Office below bis name,
where the printed name for that office
is erased and that above the written
name is not erased
The provision in Code 1899, chapter
3, section a. that where a name is
substituted for one on ballot,it must
be written in the space below the
printed name, is directory Though
the name is not there written the
vote will be counted for the written
name for the Office Of which it is plain
ly Intended.
Though detacing lines do not pass
entirely through ballot, or it's head
ings, yet if it is manifest that the vo-
ter did not intend to vote that ballet,
the DETACHMENT is sufficient"
In the opinion Judge Brannon says
in regard to the Morris case: 1--WE did
not intend TO hold that the provision
AZ TO putting the name in this space
is mandatory" and quite good deal
of space is devoted to an endeavor to
harmonic the present decision with
the Morris case. 1t may be of interest
to note That if the ballots which under
the ordinary acceptation of the Morris |
c ase, would have been rejected, b.
cause the names had not been wit
ten within the space required by tn
statute, had been rejected in the case,
it would have resulted in the election
Of Doll. the Democrat
The ocucurting opinion, filed by /,
fudge d Mt is as follows:
/ concur in the result of this case
for the reason that a2eordug to the
rules aud principles of DuuIevy VS..
County Court, A w. Va, SIS the re-
publican can lidate, I L, Bender, had |
q majority over his demo2ra &c oPpo-
nent, Frank w, Doll, of not less than
fourteen. The result of this decision
gives the republican candidate a ma
jority Of thr~e
In the al st OF asked in Morris VS..
VERT, az Y. W., 200, to.wit; I'm
der thes, .uta Jrities think I may
ask whether the plain requirements Of
our statute that the voter shall select
one ballot only, is not mandatory;and
whether that provision that, he shall
place a substitute candidate name in
a particular blank space under the
erased name, is not also mandatory
had been wholly answered in the al
firnative, rs the court then indicated
t would be, the latter clause relating
to the blank space would have
changed the result reached and elect,
ed Doll by two majority
Such a holding in my opinion, as
given n Dunlevy VS.. County Court, is
not justified by the statute and would
hav- been a positive breach OF moral
II