152 Va. 139 | Va. | 1929
delivered the opinion of the court.
This is a continuation of the controversy between
Among other things, we there held that the judges of election at Fraley precinct had failed to discharge a mandatory duty in refusing to count such of these ballots (if any) as had been legally deposited by qualified voters under the absent voters’ law. In undertaking to clarify this view we said this:
“This imperative duty, so clearly imposed upon the judges of election, they failed to perform. They were not, of course, necessarily bound to deposit every one of those ballots in the regular ballot box and thereafter to count and certify them, because they were also required first to ascertain whether each of the persons whose ballots were so offered had been properly registered, and then whether they had qualified themselves to vote at that election by payment of State poll taxes for the. three preceding years, and also to consider every other fact which might have then appeared to show that the person was not a qualified voter. For instance, if it then appeared that he had been convicted of crime, or if in the interval he had died, of course the
“The contention here is that because the ballots were not counted and certified on the night of the election, therefore they could never be thereafter counted by the judges of election. We are of opinion that this is an erroneous view. To sustain it would not only deny the right of legal voters to participate in the election, but, if the counting of such ballots would have changed the result, the failure to do so imposes an improper burden upon these candidates for office, who, if they had been counted, would have shown that they were legally elected.
“In this case the commissioners of election being unable to require the judges of election at Fraley precinct to count these votes, and having been themselves, by mandamus, forced to tabulate and certify the result of the election with these votes uncounted, the consequence is that certificates have been since awarded to those candidates who were not legally elected (if these uncounted ballots would have changed the results), and thus the burden of contesting the election has been unjustly and illegally placed. Our view is that, at the time the order here complained of was entered, and before the tabulated results of the
We concluded that the circuit court erred in refusing to award the peremptory mandamus, but it having been suggested and conceded that there was a contested election proceeding pending, which of necessity involved the legality of the votes so offered, we concluded not to award the mandamus, because the trial court in that contested election case had jurisdiction over these ballots, could have them opened and could require such of them as were cast by legal voters to be counted and given legal effect. It was because of the pendency of this contested election ease and the plenary jurisdiction of the court in that case to determine the question involved that we declined to award the mandamus. Out of abundant caution, merely, we remanded the Mandamus Case to the trial court with directions to award the mandamus only if-in the future conduct of the contested election ease it should become necessary in order to maintain the substantial rights of the parties. We also indicated that in the contested election ease the trial court had plenary power ¡to have such of said ballots counted as were legally tendered, so as to ascertain, declare and enforce the results of the election.
Of course, if this court had been of opinion that the mandamus should certainly issue, or that its issuance was necessary for the maintenance of any substantial right of the petitioner, this court would have awarded it, and this is so manifest from the opinion in the ease
The proceedings subsequent to the decision of Moore v. Pullem, supra, which was decided here March 22, 1928, were these: On April 21, 1928, the Circuit Court of Scott county issued a writ of mandamus therein, requiring the judges and clerks of election at Fraley precinct to meet on April 26th in the presence of two representatives from each political party, should such representatives desire to be present, and to .count the votes in the manner provided by section 214 of the Code of Virginia, among other things saying, that if found entitled to cast his vote the envelope should be opened and the ballot deposited in the regular ballot box, and the name of the voter entered upon the poll book by the clerk, and then directing them to count and certify such votes, just as if there had been no election contest pending.
These election officials, apparently disregarding that order, proceeded to count all of the votes so east at Fraley precinct, sixty-three in number, and declined’ to consider any challenges thereof for any cause whatsoever. It appears from the allegations of the respondent, Kidd, that the absent voters’ law had been violated there in many material particulars. All of these votes were challenged upon these grounds, and some of them were challenged upon the ground that it appeared
Pursuant to that order the clerk, as required by that order, issued a certificate of election to Moore, notwithstanding the fact that months previously the returns had been canvassed and a certificate of election had already been issued to Kidd, who had qualified, and was apparently discharging the duties of the office, and this although the contested election case was pending in the Circuit Court of Scott county.
Armed with this certificate of election, Moore demanded that Kidd surrender the office, and upon Kidd’s refusal filed this petition for mandamus, which is now before this court. Thereafter, on May 7, 1928, the circuit court awarded a peremptory writ of mandamus,, requiring H. C. Kidd to vacate and turn over to J. L. Q. Moore, the county treasurer’s office of Scott county, and all books, papers, records, tax tickets, money and things belonging to the treasurer’s office, and directing Moore to take the oath of office and to execute the bond required by law before entering
It seems to us only necessary to state these facts to demonstrate that every order which has been entered by the court in the case of Pullem v. Moore, since the former decision therein, is improper, and that the order awarding the peremptory mandamus in this case is clearly erroneous.
It seems to us certain that the order directing the issuance of the mandamus which this court had refused to issue in the Pullem v. Moore Case, outside of and independent of any evidence showing the propriety or necessity for doing so, either in that proceeding or in the contested election case, was a manifest misinterpretation of the order of this court. Every question properly arising as to the title to the office was before the court in the pending contested election case. The most direct method of determining the fact as to the sixty-three votes in question would have been to have required the ballots offered under the absent voters’ law at Fraley precinct to be brought into court and the legality of each ballot then and there determined by the court. If any of them had been tendered by voters who were not qualified, they should, of course, have been rejected. If there were failures to comply with the provisions of the absent voters’ law which were so serious in character as to render all of these votes invalid, of course none of them should have been counted. If the court desired to use the judges of election in its aid in making such a count, in the contested election case, this could have been done, but otherwise all that the judges of election could properly do, or have been directed to do, would’ have been to certify all the facts to the court for deter-
When the petition for mandamus here involved was filed by Moore against Kidd, his claim thereto being based upon that invalid certificate of election, the court should have sustained the demurrer to the petition, because the prima facie right to the office is in Kidd, being based upon the certificate of election which had been previously issued under the authority of the commissioners of election. The Circuit Court of Scott county having acquired jurisdiction in the contested election ease, the jurisdiction under the facts here shown was exclusive, and it should have proceeded in that case to determine the title to the office and all of the questions involved in this controversy.
Mandamus should never issue unless the petitioner’s right to it is clear. Under the conceded facts in this case, the ultimate right to the office of treasurer
The trial court should have sustained the demurrer to the petition for mandamus in this case and dismissed the petition. This the court will do here.
Reversed.