31 W. Va. 633 | W. Va. | 1888
This is an application for a mandamus to compel the commissioners of Kanawha county sitting as a board of canvassers in special session under the statute after the election held on the 6th day of November, 1888, to settle and sign bills of exceptions to their rulings. The petitioner, John D. Alderson, on the 1st day of December inst., presented to this Court, and asked to have filed the following petition.
To the Hon. Judges of the Supreme Court of Appeals of West Virginia: Your petitioner, John D. Alderson, respectfully states that at the general election held throughout the State of West Virginia on the 6th day of November, 1888, he was the candidate and nominee of that political organization known as the ‘ Democratic Party ’ for representative in the congress of the United States for the Third congressional district of the State of West Virginia, and was voted for at said election for said office in every county in said Third congressional district; that said Third congressional district is composed of sixteen counties, of which the county of Kana-. wha is one ; that, pursuant to law, John S. Cunningham, W. B. Calderwood, and S. S. Staunton, the commissioners of the County Conrt of said Kanawha county, met in special session on the 12th day of November, 1888, — that being the fifth day after the said election, Sunday excepted, — for the purpose of ascertaining the result of said electionrin said county. And thereafter, to-wit, on the day of November, 1888, your petitioner demanded of the commissioners of said county a recount of the ballots in said county for representative in congress, as aforesaid. That during the progress of said recount certain actions and rulings were had and made by said commissioners, which were then and there excepted to and objected to by your petitioner, and it then and there became and was nec
The petition was sworn to. The court ordered the rule to issue as prayed for in the petition, and until the further order of the court inhibited the said commissioners “ from finally adjourning their special session being held for the purpose of ascertaining the result of said election in said county, and from certifying to the Governor or Secretary of State of West Virginia the result of said election in said Kanawha county.” The said rule was made returnable to the 3d day of December, 1888, at which time the defendants appeared by counsel, and on motion of defendants the rule was enlarged until the next day, when the defendants moved to quash the rule, which motion was fully argued both by counsel for the petitioner and the defendants.
This motion was based on the ground, that the said commissioners were sitting in special session under the statute for the purpose of canvassing the returns and declaring the result of the general election held in said county on the 6th day of November, 1888, and were not a judicial body not exercising nor having the power to exercise judicial functions upon any subject-matter or thing alleged or pretended in the petition; but acting solely in a ministerial capacity as a board of canvassers keeping no record of their proceedings when thus.assembled, and not required by law to keep any other or further minute of their action, as such board of canvassers, than to sign a certificate stating the number of votes cast for each candidate in the county, based on the returns of such election, after such returns have been verified and made right, taking the certified returns to be correct as
If this position is tenable, then clearly the rule ought to be quashed ; as in such case it ought not to have issued, there being nothing alleged in the petition to justify it. The motion to quash the rule raises all the legal questions to be decided, and, if it should be quashed, the matter is at an end ; and if the motion ought to be overruled, unless the facts set up in the petition are controverted, a peremptory writ of mandamus will rightfully issue. This question whether under the circumstances the rule should be quashed, or, if the facts set up in the petition are true, the peremptory writ of mandamus should issue, must be decided almost exclusively upon a construction of our own constitution and statutes. In some States it is true that the duties of a canvassing board are wholly ministerial, and no court can review any of their rulings; but, such duties being purely ministerial, a mandamus will lie to compel such board to give a certificate of election to á certain candidate.
Thus it was held by the Supreme Court of Illinois, that the office of canvassers is merely ministerial, and as such will be controlled by mandamus ; that they are required by statute to count all the votes formally certified to them; and
The court by Breese, Judge said : “ Upon the remaining ground of objection, that the county clerk had issued a certificate of election to another party prior to the issuing out of this writ, it is only necessary to say that it is in proof the certificate was not issued until after notice of this application for this writ. When the fact was brought home to the clerk that this application was made it would have been quite decorous and proper to pause in his action, and await the decision of the court; the more especially as by issuing the certificate to a party not entitled the right of the true claimant could be weakened thereby. The power remains to the clerk to issue the certificate to the party this court may deem entitled to it. People v. Rives, 27 Ill. 246. There are no other means known to the law by which this result can be obtained.”
The court issued the peremptory writ of mandamus. The Supreme Court, of Illinois has repeatedly held, that the functions of the board of canvassers under their statute are purely ministerial and could therefore be controlled by mandamus. We have held that boards of canvassers in this State by statute have conferred upon them both ministerial and judicial powers. Brazie v. Commissioners, 25 W. Va. 213; Chenowith v. Commissioners, 26 W. Va. 230; Fleming v. Commissioners, ante, 267.
But it is insisted here by the counsel for the commissioners, that the commissioners while sitting as a board of can-
The case of Poteet v. Commissioners, 30 W. Va. 58 (3 S. E. Rep. 97) is not, as supposed by counsel, in conflict with Chenowith v. Commissioners. There are some dicta in the opinion in that case, which would seem to be in conflict. After referring to McClure v. Maitland, 24 W. Va. 561; Auvil v. Iaeger, Id. 583, and McClure v. Mauperture, 29 W. Va. 633 (2 S. E. Rep. 761)—where it was held in some of the cases, that the court could not review proceedings under the statute for sale of lands by the school-commissioners, they being in their character administrative, and simply a mode prescribed by the State for the sale of lands, which were here absolute property, and in the sale of which the State alone was interested, and to Railroad Co. v. Board, 28 W. Va.264, where it was held, that this Court has no jurisdiction
“ The controlling question in this case is, is the final judgment of the County Court, ascertaining and declaring the result of a vote on the re-location of a county-seat, a judicial act, like the judgment of such court on a contested election, or ministerial act, like the decision of the commissioners of such court sitting as a board of canvassers five days after the election ? If the latter, such judgment, for reasons we have already stated, cannot, under our Constitution, be reviewed by the Circuit Court. * * * It seems to me, for several reasons, that the language of the statute indicates clearly that this action of the County Court is judicial, and, therefore, reviewable by the Circuit Court. The action is taken at a session of the court, whereas certificates of the election of officers are given at a special meeting of the commissioners, held for the special purpose only of canvassing the votes cast at the election. These two acts are in strong contrast with each other. When acting as a board of canvassers of the votes cast for candidates for office, the commissioners make no record whatever of their conclusions, entering up nothing which bears any resemblance to a judgment, on their order-book, but simply, like other canvassing boards, make out and sign certificates showing the vote cast in the county for each candidate.”
In that case it was properly held, that under the statute, which provides, that the clerk of the County Court shall lay before said court, at its next session after an election, wherein a vote has been taken on the re-location of a county-seat, the separate certificates of the precinct-commissioners of the vote on the question at each precinct, and that the court shall thereupon ascertain and declare the result of said vote and enter the same of record, that under this statute any voter of the county has a right to appear and contest the validity
In Chenowith v. Commissioners it appeared, that the commissioners of Randolph county sitting in special session as a board of canvassers after the election in 1884 found, that the poll-books and certificates of the several districts showed, that Warwick Hutton had been elected sheriff of Randolph county by a majority of three votes over his competitor for the office, Z. T. Chenowith. Thereupon Chenowith demanded of said commissioners, that they re-count the ballots cast in seven of the districts of said county, and said Hutton demanded a re-count of the ballots cast in the two remaining districts of the county. The commissioners opened and recounted the ballots in all the districts of the county and on the same day again sealed up the said ballots. It was found as a result of the re-count, that Chenowith had 849 votes and Hutton 846 votes. On the next day the said Hutton demanded a re-count of the ballots in three of the districts, and the said Chenowith objected, but his objection was overruled, and the commissioners re-opened and re-counted the ballots
“ The general rule is, that upon certiorari the superior court will only inquire into errors and defects which go to the jurisdiction of the inferior court. But if the inferior tribunal proceeds in a summary manner, and not according to the course of the common-law, and there is no remedy by appeal or writ of error, then the superior court will consider other than jurisdictional questions. Poe v. Machine Works, 24 W. Va. 517; Dryden v. Swinburne, 20 W. Va. 89. By our statute this remedy is in express terms, extended to pro,-ceedings before a County Court, council of a city, town or village justice, or other inferior tribunal, after judgment or final order in any case, except where, the Circuit Court has authority to review such judgment or order on motion, or an appeal, writ of error, or in some manner other than upon certiorari. Section 2, ch. 153, Acts 1882, p. 488. This statute greatly enlarges the remedy by certiorari, both as to questions that may be reviewed by it, and the inferior tribunals to which it is made to lie. Whether it is thus extended to all inferior tribunals, whether executive, ministerial, or
After quoting from Brazie v. Commissioners, the Judge further said, (page 234):
“ In the case just cited this Court held that a writ of prohibition lay from the Circuit Court to the county commissioners of a county, assembled in special session, to ascertain the result of an election. It seems to me, therefore, there can be no question in this State that the writ of certiorari will lie from the Circuit Court to the county commissioners so assembled. In view of this decision, and our statute-law, it is unnecessary to inquire what the law is on this subject in other States having no such statute. The county commissioners thus acting in special session are an inferior tribunal, proceeding in a summary manner,, and not according to the course of the common-law. This tribunal is a creature of, and its proceedings are governed entirely by, the statute; and no provision is made for a review of its action or proceedings on motion, appeal, writ of error, or supersedeas. If its proceedings can not be reviewed by certiorari, they can not be reviewed at all.”
The order of the Circuit Court refusing to award the writ was reversed, and the case remanded with instructions to award the writ as prayed for, and, if the allegations of the petition were sustained by the records of the commissioners to the extent indicated in the opinion, to make such order as the county-commissioners should have made by declaring the petitioner duly elected to the office of sheriff of Randolph county.
We have no disposition to recede from the position taken in that case. The boards of canvassers in the State must learn that their action is not autocratic; that they are the creatures of law and not greater than the law; that the courts will control them and keep them within the line of their duties; knowing this they will be much less apt to go astray in behalf of one party or the othei’, or in favor of one candidate as against another, but will according to their oaths to the best of their skill and judgment fearlessly and
But, it is said, here are no parties. Every candidate for office has the right to witness the count of the ballots and at any time, when the people’s rights in him are infringed, to make himself a party to the proceedings for the purpose of correcting errors therein.
But it is said if they decide improperly, and the certificate is given to the wrong party, he has his redress by resort to a contest, and the tribunal clothed with power to hear the contest will finally decide who is elected. This is no adequate remedy either lor himself or the people. He has a right to see, that the proceedings are regular and according to law, and, if entitled to it, he has the right to demand a certificate of his election. He is at least entitled to have certified the true result of the election in the county, in which the commissioners are sitting as a board of canvassers; and in the case of the election of a representative in Congress his prima, facie right to a seat depends upon whether he receives the certificate of his election from the governor, and whether he receives that certificate depends upon the returns, as they come from the commissioners of the different counties comprising the district. Therefore it is all important, that such returns shall be correct; because, if a candidate is entitled to the certificate, he ought to have -it and the advantage of the prima facie case and thus the advantage in a contest, if one is made.' And this is sufficient to give him the right to appeal to the courts to see that his rights are protected, in the several counties where the commissioners are canvassing the votes.
In People v. Hilliard, 29 Ill., supra, the court said: “Though the house of representatives is the sole and exclusive judge of the qualifications of its members, this application has no reference whatever to the point of qualifications. Its sole purpose is to procure the requisite evidence
If it is true, that the action of this inferior tribunal, the commissioners of Kanawha county sitting as a board of canvassers, can be reviewed on certiorari, and that the proper parties aré present, and the interest of the plaintiff in the subject is such as to entitle him to have such action reviewed, why should that tribunal not be compelled by mandamus to make a record of its proceedings, so as to give the Circuit Court the opportunity to review such action ?
' The statute construed in Chenowith v. Commissioners, supra, is as follows: “In every case, matter or proceeding, in which a certiorari might be issued, as the law heretofore has been, and in every case, matter or proceeding before a County Court, council of a city, town or village, justice or other inferior tribunal, the record or proceeding may, after a judgment or final order therein, or after any judgment or order therein abridging the freedom of a person, be removed by writ of certiorari to the Circuit Court of the county in which such judgment was rendered or order made, except in cases in which authority is or may be given by law to the Circuit Court, or the judge thereof in vacation, to review such judgment or order on motion, or on appeal, writ of error or supersedeas, or in some manner other than upon certiorari; but no certiorari shall be issued in cases of judgments rendered by justices in civil actions for not exceeding fifteen dollars, exclusive of interest and costs.”
Section 3 provides: “ In every case, matter, or proceeding before a County Court, justice, council, or other inferior tribunal, in which a writ of certiorari would lie according to the provisions of the preceding section, the majority of the-commissioners composing the court, or the justice, or the officer or officers, presiding over such council, or other inferior tribunal, shall, upon request of either party in a civil case, matter, or proceeding, or of the defendant in a criminal case, matter, or proceeding, certify the evidence, if any, which may have been heard, and sign bills of exceptions, setting forth any rulings or orders which may not otherwise
Under this statute it was the duty of the inferior tribunal, the board of canvassers, at the request of the petitioner to certify evidence and sign bills of exceptions setting forth its rulings or orders, so that their action affecting him might on certiorari be reviewed by the Circuit Court. It is true, as insisted by counsel for respondents, that they do not, unless requested, keep a minute of their rulings, but it is not true, as they contend, that they may not be required to do so. They are so required,'when requested by a proper party to do so. We can not, of course, say what said bills of exceptions should contain, or whether they should show, that the inferior tribunal erred in its rulings; that is for the Circuit Court on hearing the certiorari to decide, should such writ be granted, subject to review by this Court.
Whether the act declaring, that, if the commissioners and clerks at any voting place are not sworn, the vote of that precinct shall not be counted, is constitutional or otherwise, will not and can not be properly decided here. It may arise and be decided by the Circuit Court on the hearing of the certio-rari, if one is granted. That question was argued in Halstead v. Rader, 27 W. Va. 806, and it was insisted, that the act was unconstitutional, because the constitution guaranties every qualified citizen the right to vote, which would amount to nothing, if the vote were not counted, when the voter himself is not at fault; and on the other hand it was insisted, the act was constitutional, because it was a wholesome regulation in the interest of pure elections. The question was not decided, because the notice of contest was fatally defective, so that the question did not arise. It is clear to us, that the said com
But it is also objected that the Circuit Court ought to have been applied to and not this Court, as this Court has a rule forbidding an application to it, unless certain facts appear. For the reasons stated in Fleming v. Commissioners, supra, p. 616, enough appears to show the propriety of making the application to this Court. For the foregoing reasons the motion to quash the rule is overruled.
Thereupon the defendants tendered a plea in abatement, setting up the same reasons, as were urged in support of the motion to quash the rule. The court refused to permit the plea to be filed. The defendants then tendered their answer, which was filed, and all issues of fact were waived by the parties, and by consent of the defendants a peremptory writ of mcundamus was ordered to issue, requiring defendants to settle and sign such bill or bills of exceptions in the matter of the re-count of the votes in said Kanawha county at the general election held in said county on the 6th day of November, 1888, as may be presented to said commissioners touching any of the rulings and orders theretofore made or to be hereafter made in the progress of said proceedings, including the ascertainment of the final result of said election. Said bills of exceptions are to be settled in the manner prescribed in the order of this Court made on the 29th day of June, 1887, in the cause of Poteet v. Commissioners.
On the 15th day of December, 1888, it appearing to the court, that the writ of mandamus had been fully obeyed, the inhibition preventing the commissioners from finally adjourning and certifying the result of the election was wholly removed. It was objected that this Court had no right to issue such restraining order. When in such a case a petition praying a mandamus is filed, it is right and proper for the court issuing the rule or alternative writ of mandamus to issue an order inhibiting the commissioners until the further order of the court from finally adjourning or certifying