49 W. Va. 733 | W. Va. | 1900
I hold that the former decision of this Court was a final judgment in this case. It awarded a final or peremptory mandamus to compel a recount of the -ballots. What was left to the circuit court to do was simply an execution of the mandate of this Court; that is, to issue an alias mandamus, as the day fixed by the circuit court judgment had passed, requiring the canvassers to simply recount the ballots, leaving nothing to be decided by the circuit court. The act required of the circuit court and vancassers was simply ministerial. Cayton had no right to make any further defense against having a recount; no right to file a petition. If he had had right to make a further defense, I would concede that the court could not refuse such defense on the theory that Cayton was in contempt. He, being a defendant, even if guilty of contempt, could not be denied a defense, as might be done had he been plaintiff. Hovey v. Elliott, 167 U. S. 409, 17 Sup. Ct. 841, 42 L. Ed. 215.
But he had no right to make defense. His petition was not presented until two days after the Court finally acted in the case by the award of the mandamus. The case was ended. This is another reason against his defense. He showed no reason for opening the judgment. That petition set up that Hebb should have filed formal petition for the alias mandamus. Not so, because the court had finally determined his right to it, and it could be awarded on mere motion, being simply an execution of the mandate of this Court. No new facts were necessary to be presented. In re Sanford, 160 U. S. 247. Cayton’s petition
It is said that the circuit court has never acted on that petition, nor passed upon the question, and yet has to do so before
Cayton had a memorandum entered of a bill of exceptions, but none appears in the record. Is this petition part of the record ? It seems not, in the absence of such bill. If it is not, he can take no benefit from that petition; but I have considered it as if a part of the record. It is said that the mandamus awarded is against the county court in its corporate capacity, but should have been against the board of'canvassers. This is purely technical objection; but it is untenable, in the face of the record, which awards a peremptory mandamus “against the county court of Tucker County, and W. H. Dasher, A. B. Flanagan, and A. L. Helmick, the commissioners composing the same, commanding them to assemble at the court house of Tucker County on the 20th day of March, 1899, in tlieir corporate capacity as such county court and board of canvassers, and to then and there recount all the ballots,” etc. Now, the same men compose the county court and board of canvassers, and this order of the circuit court plainly commands the persons named as commissioners to canvass the ballots as canvassers, and calling them the county court is surplusage, as the law requires them to act in the specified act of recounting as canvassers. We look at substance, and not at mere technicality.
The order appealed from in this case is as follows: “This day came Wm. M. Cayton, by his attorneys, and presented to the court another petition, and asked to have the same filed in this
From the face of the foregoing order, it is perfectly apparent that the only thing the circuit court did was to refuse to hear the petitioner as personam non cum gratis, for the reason that he had violated the order of injunction awarded, restraining and inhibiting him from qualifying under his certificate of election until a recount of the ballots could be had as commanded, and required him to first purge himself or cleanse his .hands, not by affidavit, but by surrendering his office under his qualification. If the circuit court had the power to award the injunction, it had the right to refuse to hear him. 2 High Inj. s. 1463. If it was coram non judice, and the court thus exceeded its authority, it had no right to refuse him a hearing, though in contempt of its order. Id. s. 1425. The law is there stated: “If the court has no jurisdiction over the matter involved, or if it has exceeded its powers by granting an injunction in a matter Beyond its jurisdiction, its injunction will be treated as absolutely void, and the defendants cannot in such case be published for contempt for its alleged violation.” That the circuit court did so exceed its powers was settled by this Court in the case of Swinburn v. Smith, 15 W. Va. 484. The third and fourth points in the syllabus are as follows, to-wit: “(3) The circuit court judge having, in addition to this writ of error and supersedeas, issued an injunction prohibiting the person who had been declared elected to the office, and who had duly qualified, from exercising the duties of the office, or interfering with the person who had formerly held the office in the performance of its duties, held,
The object of these proceedings is to take from Cayton an office to which he had been declared elected, and in which he holds a qualified property, in the defense of which he is entitled to be heard. Yet the circuit court denied him a hearing for a groundless reason. And the affirmative moiety of this Court to whom he appeals for redress and the restoration of his constitutional rights closes the doors to him, and turns him away without a remedy. The excuse given is that, although the circuit court may have done wrong not to hear him, yet we have examined his petition on the merits, and find out that it presents no legal defense to the issuance of the mandamus, and therefore the circuit court’s action in refusing to hear him was harmless error. It was simply a bad reason given for a righteous determination. This is a violation of one of the most firmly established rules of this Court, not to consider matters which have not been adjudicated by the circuit court, as Judge Brannon says in Kisler v. Lapham, 46 W. Va. 293, (33 S. E. 289), “this being an appellate court, which passes only on matters previously passed
As to the first of these objections, this Court has decided that there is a vast difference between the county court acting in its corporate capacity and the members thereof acting as a board of canvassers of an election. In the late case of Brown v. County Court, 45 W. Va. 829, (32 S. E. 165), Judge BRANNON, distinguishing between the two bodies, says: “Thoughthese bodies are composed of the same persons, — county commissioners,- — yet they are in law not the same, but distinct, bodies. The board of canvassers is merely a body to canvass the returns of elections for
The intention of the law is too plain for cavil or doubt, and yet, if needs be, the legislature should so amend it as not to permit any election officer to become functus officio by his own evasion, act, or negligence until he has fully performed, his specified duties in a legal manner, and there should be left no loophole through which the wisdom of the judiciary may furnish him an avenue of escape by judicial construction. To the utmost of legislative power election officers should be removed from the temptation to fraudulent practices, neglect, or omission to perform their duties legally. Our elections cannot be made absolutely pure, but they can, at least, have the legal semblance of purity by requiring from election officers strict performance of their duties in accordance with the law, and punishing them individually with the payment of costs, fine, or imprisonment for default on their part. Let no guilty officer escape. That which a man soweth, he ought also to reap. The judgment should be reversed, the county court in its corporate capacity released from, costs'and discharged from the mandamus, and the delinquent officers compelled to do and perform their duties legally, as the law is written.