The opinion
Judges Kenna and Fox,
dissenting in part:
Our objection to the opinion of the majority is that it does not go far enough. We think the writ should have been awarded as prayed for, and the vote cast in precinct 105 entirely eliminated in certifying the returns from Kanawha County. As we view the matter the situation, as fully developed in the majority opinion, clearly shows that at no time while the election was in progress could it be said that any two legally acting clerks of election signed any one ballot. As to the Republican clerk, Chappell, he assumed to act as clerk under some character of appointment in place of the regular clerk designated by the county court. He was not present and acting as such for the entire day. He may have been a
de facto
officer and his acts as clerk entitled to recognition as such. The Democratic clerk appointed by the county court appeared on the scene early in the morning, but did not assume the duties of his position, and another election officer, without taking any oath as such, took over the duties of receiving clerk and did work as such intermittently throughout the day. This man, Branham, had been appointed as a commissioner of election and qualified as such by taking the prescribed oath, and then as commissioner administered an oath to the other election officers. Afterwards, during the day he switched from one character of work to another, acting as receiving clerk only part of the time. Later in the afternoon, Lowe, for the first time, assumed the duties of clerk and signed some of the ballots along with the Republican clerk. Neither Branham nor Lowe was legally entitled to act as clerk at the time they assumed to sign ballots as such. We return to our original statement that the record does
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not show that any ballot was signed at the same time by any two legally appointed clerks acting as such.
For these reasons, we are of the opinion that the vote of the entire precinct should have been eliminated from the canvass.