The opinion
Haymond, Judge,
dissenting:
I respectfully but emphatically dissent from the holding by the majority of the Court that the 28 ballots which were prepared as sample ballots were converted into official ballots by the deputy circuit clerk by the acts of that official mentioned in the opinion and that such ballots, having by such acts become official ballots, were properly cast at the primary election held at Precinct No. 6 in Center District in Calhoun County. I can not concur in the reasoning which leads to that magic and surprising result and which, in my judgment, is utterly unsound.
In the opinion in the recent case of Evans v. Charles, 133 W. Va. 463 , 56 S. E. 2d 880 , this Court said: “The system of elections in this State is not of common law origin; and the exercise of the right of suffrage is regulated and controlled by constitutional and statutory provisions. State ex rel. Robertson v. County Court of Kanawha County, 131 W. Va. 521 , 48 S. E. 2d 345 . The manner of conducting elections in this State is governed by statutes and the power of the Legislature to deal with elections is plenary except to the extent that it is limited by the provisions of the Constitution of this State or of the Constitution of the United States. State ex rel. Forsythe v. County Court of Cabell County, 131 W. Va. 570 , 48 S. E. 2d 412 ; Halstead v. Rader, 27 W. Va. 806 .” See also State ex rel. Lockhart v. Rogers, 134 W. Va. 470 , 61 S. E. 2d 258 ; 18 Am. Jur., Elections, Section 2.
Section 2, Article 5, Chapter 3, Code, 1931, provides in part that in each county the clerk of the circuit court and two persons appointed by him, for a term of two years, one from each of the two major political parties, shall constitute a board of ballot commissioners of which the clerk shall be chairman; and that the members of the board shall perform the duties of such commissioners at all general, special and primary elections held in the county or in any magisterial district during their term of office. Section 3 of the same article and chapter in part contains this language: “It shall be the duty of the board *474 of ballot commissioners for each county to provide printed ballots for every election for public officers in which the voters or any of the voters within the county participate, and cause to be printed, on the appropriate ballot, the name of every candidate whose name has been certified to or filed with the clerk of the circuit court of the county in any manner provided for in this chapter. * * *. Ballots other than those caused to be printed by the respective boards of ballot commissioners, according to the provisions of this chapter, shall not be cast, received, or counted in any election.”
Section 9, Article 4, Chapter 3, Code, 1931, as amended, provides that the ballot commissioners of each county shall, at least twenty five days before the holding of any primary election, prepare a sample official primary ballot for each party and for non-partisan candidates and cause such ballot to be published in the manner provided by the section; and that the ballot commissioners “shall cause official ballots, to not more than one and one-twentieth times the number of registered voters in each election precinct of each political party, to be printed and delivered to them for holding the primary election.” Section 11 of the same article and chapter in part provides that the same color of paper selected and designated by the secretary of state for any party shall be used for sample ballots of such party; that there shall be printed across the face of such sample ballot in large letters the words “sample ballot”, and that no sample ballot shall be voted or counted.
It is conceded that the 28 ballots were originally prepared as sample ballots. The deputy whose acts effected the amazing conversion of the ballots was not even a member of the board of ballot commissioners, the only agency authorized by law to prepare any ballots for use in connection with the primary election. When the deputy undertook to change the sample ballots into official ballots neither the clerk nor any one of the other two members of the board of ballot commissioners which could function officially only as a unit, by unanimous or major *475 ity action, was even present. In the absence of all the members of the board, the only agency which could legally prepare an official ballot, the deputy, not a member of the board, undertook to make the conversion. Neither the clerk himself nor any other member of the board, acting singly, could legally do what the deputy endeavored to do. Manifestly the deputy alone could not perform a duty which the statute imposes upon the board and which could be performed only by action of at least a majority of its members. In attempting to prepare official ballots by placing her approval on sample ballots the deputy endeavored to perform an act which only the board could lawfully perform. If she could make official ballots out of sample ballots, by her mere approval of sample ballots, and thus in fact prepare official ballots, she could discharge any other function of the board and by so usurping its authority in all such matters render its existence unnecessary.
I assume that it would not be seriously contended by the most zealous advocate that the approval, by the county clerk, the assessor, the sheriff, the prosecuting attorney or any other elective county officer, or a county employee or a stranger, of sample ballots could lawfully convert them into official ballots, or that any such contention would be considered effective for that purpose by the majority of the court, for manifestly none of the designated county officers is vested with any legal authority to prepare ballots for use in an election; yet by the decision of the majority, the deputy, who is not a member of the board of ballot commissioners and is as completely without authority to act for it as any of the officers just mentioned or a stranger could possibly be, is enabled to convert sample ballots into official ballots by her mere approval. The signatures of the poll clerks at the precinct upon the sample ballots, likewise, did not change them into official ballots. If acts of the poll clerks could produce that result sample ballots, or any kind of ballots, could be used in lieu of official ballots in violation of the express provision of the statute, Code, 1931, 3-4-11, which *476 forbids the voting or the counting of sample ballots and which the majority says is “salutary in purpose” and mandatory in character.
In my judgment the sample ballots, notwithstanding the approval of the deputy and the signatures of the poll clerks, all of which was wholly without authority of law, remained sample ballots, and the action of the majority in holding them to be official ballots disregards the command of the statute, operates to defeat its purpose, and opens the door to fraud and dishonesty in elections. I am disposed to go a long way to preserve and make effective the right of franchise of the qualified voter, but that right is subject to, and not beyond, constitutional and statutory provisions designed to safeguard and secure fair and honest elections. When voters and election officials, or any of them, fail to comply with the requirements of mandatory statutes which govern elections, the lesser of two evils is the denial of the right of few or even many voters to vote rather than the impairment or the destruction of the system by which fair and honest elections may be safeguarded and secured.
It is true, as pointed out by the majority, that no fraud attended the action of the deputy in attempting to convert the sample ballots into official ballots. That action was thoroughly honest and was undertaken with the utmost good faith. Though well intended it was, nonetheless, entirely unauthorized and, in consequence, legally ineffective. The majority recognizes it as authorized and valid. It is significant, however, that in so doing the majority fails to indicate the source, statutory or judicial, of the authority of the deputy to convert sample ballots into official ballots, or to justify such action by any statutory provision or by any applicable judicial pronouncement. Though no fraud attended or tainted the action of the deputy or the holding of the election, the mere absence of fraud from official conduct does not and can not confer authority to engage in or perform such conduct. Authority to hold and conduct elections under our present system is based upon, and is solely derived from, constitutional *477 and statutory provisions, and acts and conduct not authorized by such provisions, however well intended, can not be validly or legally performed. In my opinion, the holding of the majority in justifying and sustaining as valid wholly unauthorized action, because it was not attended by fraud, in fact will tend to facilitate fraud and dishonesty which the statute, in forbidding the voting or the counting of sample ballots, was designed to prevent.
For the foregoing reasons, I would reject all such ballots and refuse to permit them to be voted or counted in the primary election.