27 W. Va. 244 | W. Va. | 1885
Statement by
At the general election in this State held October 14, 1884, John J. Adams and George A. Mayer were candidates for the office of clerk of the circuit court of Tucker county. On October 21, 1884, the commissioners comprising the county court of said county gave to John J. Adams a certificate, that he was elected to said office having received 407 votes, while his opponent Mayer received but 395 votes. On October 27, 1884, Mayer had regularly served on Adams notice of a contest before the county court for this office, in which notice the grounds of contest and specifications are set out in detail. The more prominent of these grounds is, that some twenty persons, naming them, not residents of that county for sixty days preceeding this election had at one precinct cast their illegel votes for Adams for said office, and it was only by the counting of these illegal votes that he was declared elected. The truth of the facts contained in this notice was sworn to by Mayer. This notice also stated that it would be docketed on the first day of the next regular term of the county court of Tucker, after it -was served on Adams. There was however a failure to docket it regularly on that day. The court met on November 10, 1884, and adjourning till the next morning without taking any notice
The next regular session of that court was to be held on the second Monday in February, 1885. Exceptions were taken during this November term of the court to the various rulings of the county court, one by the contestant and two by the respondent, which bills of exceptions it is not deemed necessary to set forth. Several papers are then copied into the record, but they constitute no part of it, and whence they come or what they really are does not appear. One purported to be a notice for a call of a special term of the county-court of Tucker to settle with the sheriff of the county and to try this contest about the circuit court-clerkship. It purported to be signed by the president and to be concurred in by one of the commissioners. The special session purported to be fixed for January 7, 1885'. And there was also copied into the record, but it was no part of it, a notice to the third commissioner, that such special session would be held, with a sheriff’s return thereon, thathe had left a copy at Mayer’s usual place of abode on January 5,1885, there being nobody there. There was also copied into the record a notice to said Adams from said Mayer, that at the special term he would insist on a trial of this cause. It was served on his wife at his usual place of abode on January 2, 1885, and also upon his
“And at another day, to-wit: At a called session of the county court of Tucker county held on Wednesday, January 7, 1885, at the court house thereof, -pursuant to notice as provided for by section 6 of chapter 5 of the Acts of 1881. Present, John Jones, president, and James IT. Lambert, commissioners composing the court.
“This day came the contestant, George A. Mayer, by his attorneys, and it appearing to the court that said contestee had duo notice that contestant would insist upon a trial of this cause at this special session, and that said contestee, being solemnly called, came not, and it appearing to the court that said notice of contest has been at a former term of this court docketed, filed and continued, and it further appearing to the court that the contestee, John J. Adams, has been duly served with a copy of the contestant's additional notice of contest, and on motion of said contestant it is ordered that the additional notice be and the same is now docketed; and thereupon, on motion of the said contestant the court, proceeded to hear the proof in this cause in support of said notice and additional notice, and not being able to conclude the same, this cause is continued until tomorrow morning at nine o’clock.
“And now at this day, to-wit: At another day of said called session of said court, held on Thursday, January 8, 1885, present, same members of the court.
“This day came the contestant, George A. Mayer, by his attorneys, and the court, having heard the evidence and argument of counsel for the contestant, doth consider 'and declare that at the election held on October 14, 1884, in the county of Tucker, State of West Virginia, for the office of clerk of the circuit court of said county for the term ot six years, commencing on January 1, 1885, the contestant, George A. Mayer, received three hundred and ninety-three votes, and should have received three hundred and ninety-four (894), counting Martin Shahan’s vote, who offered to vote at the polls in Licking district in said county for George A. Mayer, contestant for clerk of said circuit court, which said vote is now counted for said contestant, which would*248 make said contestant’s legal vote in said county for said office three hundred and ninety-four legal votes (894).
“The contestee, John J. Adams, only received at said election 386 votes, (three hundred and eighty-six,) excluding the illegal votes east tor said Adams at said election and counted for him by the county court of the said county in declaring the result of said election, the aggregate of which illegal votes so rejected is 21 (twenty-one); and the court doth further consider and declare that the said George A. Mayer, at the time of said election, and at this time, and at the time said result was declared by the county court of the said county on October 21,1884, is now and was then a citizen of the United States of America, and a citizen of the State of West Virginia, and entitled to vote in said State, in the county of Tucker, at the time said election was so held, and eligible to be elected to said office and to hold the same for the said term ; it is therefore considered and declared by the court that said George A. Mavcr at said election was duly and legally elected to said office, and is legally entitled to enter' into and perform the duties thereof for said term. It is further considered by the court that each party to this contest pay his own legal costs incurred herein, and doth consider and order that a certified copy of this order be delivered to the contestant, George A. Mayer, by the clerk of this court, who is declared elected by said court to said office'.
“And on the same day of the said court, to-wit, on the day last aioresaid, came George A. Mayer, who has been by the county court of Tucker county declared duly elected clerk of the circuit court for the term of six years, commencing January 1,1885, and thereupon the said George A. Mayer appeared in court and took the several oaths prescribed by law.”
And, thereupon, on January 10, 1885, John J. Adams, presented his petition to the judge of the circuit court of Marion asking that an appeal from said judgment might be awarded him under sec. 47 of ch. 5 of Acts of 1881 for eleven errors in the proceedings specified in the petition, none of which I deem it necessary to notice except the tenth, which was as follows: “Said court erred in holding a special or called session of the court without having had notice of said
This petition had the usual certificate of counsel practicing in the circuit court of Tucker county, that in his opinion it was proper, that the above judgment should be reviewed by said circuit court of Tucker county, and there was also appended to it the affidavit of John J. Adams, that the said office in controversy was worth more than $100.00.
The following was the order made by the judge, to whom this petition was presented :
“The circuit court of Tucker county not being in session, the undersigned judge of the second judicial circuit of West Virginia, to whom the within petition for an appeal from the judgment of the county court of Tucker county was this day presented, hereby grants to the within named petitioner, John J. Adams, an appeal from and supersedeas to the judgment of the county court of Tucker county complained of in the within petition, rendered January 8,1885, but not to take effect until a copy of this order shall be served upon George A. Mayer, the contestant, and until the said Adams, or some one for him, shall execute and file before the clerk of the circuit court of Tucker county a bond, with good security, approved by said clerk of said circuit court, in the penalty of $2,500.00, conditioned to pay all costs and damages that may he sustained by said Mayer, or any other person, by reason of said appeal and super sedeas, and conditioned to abide by and perform any order made by said circuit court in the premises.
“Given under my hand this January 12, 1885.
“A. B. Flem-INu,
“ Judge Second Judicial Circuit.
“ To the Clerk of the circuit court of Tucker county.”
The appeal-bond is copied into the record but constitutes no part of it; for as copied it is not under seal.
The following is the final order made by the circuit court of Tucker county on this appeal on May 14, 1885 :
“ This day came as well the appellant, John J. Adams, by his attorneys, as the appellee, George A. Mayer, by his attorneys, and the court-having maturely considered the matters*250 arising upon the said petition and the transcript of the record of the proceedings of the county court of Tucker county filed with said petition, and having heard the argument of counsel, doth consider that there is error in the judgment of the county court of Tucker county rendered on January 8, 1885, and proceeding to correct such error, it is further considered by the court that said judgment be reversed and annulled, and that the appellant Adams recover from the appellee Mayer his costs herein. And this cause is remanded to said county court for further proceedings therein to be had.”
A motion was made then to permit the sheriff to amend his return of the service of the notice of the special session of the court on the commissioner who did not concur in the holding of it. Which being objected to, the court refused to permit such proposed amendment to this return by the sheriff to be made.
A writ of error was awarded by a judge of this Court to the final order made by the circuit court of Tucker county in this contested election case overruling and annulling said judgment of the county court of Tucker county rendered January 8, 1885, and adjudging costs against appellee, Mayer, and remanding the case to the county court of Tucker county for further proceedings therein to be had.
Opinion by
The question, whether the special session of the county court of Tucker, which was commenced on January 7, 1885, and which on the next day decided the contested election-case in favor of George A. Mayer as the party, who had been duly elected at the preceding general election clerk of'the circuit court of Tucker, had jurisdiction to render any decision in this case, is a preliminary question, which we must first decide. If the court had not jurisdiction, the judgment it rendered on January 8, 1885, was a mere nullity, and the judgment of the circuit court of Tucker rendered on the appeal on May 14, 1885, reversing and annulling the judgment of the county court was proper. If on the other hand this special session of the county court of Tucker had jurisdiction, then we must consider the case on the merits as presented by the record and affirm this judgment or else reverse it and enter
Superior courts of general jurisdiction are presumed to have jurisdiction of every particular case, which comes before them ; and if the contrary is alleged, it must be proven. On the other hand inferior courts of limited jurisdiction are not presumed to have jurisdiction of the particular case on which they have acted. It must be made to appear affirmatively that the case fa Is within the defined limits of their jurisdiction. The county courts in this State and in Virginia were formerly courts of general jurisdiction. But the character of these courts in this State was essentially changed by the amendment of our constitution made in 1880. They are now inferior courts of limited jurisdiction. Their character and jurisdiction are prescribed in sec. 24, Art. VIII of our constitution. (See Warth’s Code, p. 27.) Their jurisdiction now extends only to all matters of probate, the appointment and qualification of personal representatives, guardians, committees, curators and the settlement of their accounts,- and to all matters relating to apprentices, and to the superintendence and administration of the internal police and fiscal affairs of their counties including the establishment of roads, ways, bridges, public landings, ferries, mills with authority to levy and disburse the county levy and in all cases of contest to judge of the election, qualification and returns of their own members and of all county and district officers, subject to such regulations by appeal or otherwise, as may be prescribed by law.
On February 11, 1881, the Legislature passed an act, ch. 5 of Acts of 1881, page 21, Warth’s Code, ch. 39, p. 252, which was intended to put this provision of our amended -constitution into force. By sec. 6 of this act each county court was to hold four regular terms a year, and this section further provides: “ It may also hold special sessions, whenever the public interest may require it, to be called by the president, with the concurrence of at least one other of said commissioners; and the commissioner if any not concurring therein, must have at least twenty-four hours’ notice of the time appointed for such special session. A notice of the time of such special session, and of the purpose for which it will
As was said by Miller, delivering the opinion of the court in Harvey v. Tyler, 2 Wall. 342: “ Powers may be conferred on the court and duties required of it to be exercised in a special and often summary manner, in which the order or judgment of the court can only be supported by a record which shows it had jurisdiction of the case.” See also Ransom v. Williams, 2 Wall. 318. But we need not rely upon cases of this description for the county courts in this State at their special sessions are not courts of general jurisdiction but are inferior courts of very limited jurisdiction. Their jurisdiction is not only limited to such cases as the county courts had jurisdiction of, but at the special terms it is by the statute we have quoted' confined to the transaction of such business as the public shall have been notified they would attend to by a notice thereof posted by the clerk of the court at the front-
“ It is an elementary principle that no proceeding of a court or magistrate of special and limited power will be held legal, unless competent power for the purpose is shown. Jurisdiction in such case is not to be presumed, but must be proved. A general averment of jurisdiction amounts to nothing; but the facts upon which it depends must appear. (Cleveland v. Rogers, 6 Wend. 438; Lauton v. Erwin, 9 Wend. 237; Ladbroke v. James, Willes’ Rep. 199; Sollers v. Lawrence, Code 413; Dakin v. Hudson, 6 Cowen 221.”)
The third point of the syllabus in State ex rel v. Ely, judge, &c., 43 Ala. 568, is: “The record of a court of limited jurisdiction should contain every fact essential to confer jurisdiction.” The court says, on p. 575 : “Even if the commissioners’ court had authority to declare the office vacant, the record shows no facts giving jurisdiction. The simple judgment is stated. The -record of a court of limited jurisdiction should contain every fact essential to confer the jurisdiction; Commissioners, &c., of Talladegee v. Thompson, 15 Ala. 134; Malet v. Rencen, 22 Ala. 484: A declaration of the vacancy of an office by a court competent to. make the declaration is a judicial act. Peck v. Holcombe, 3 Porter 369.”
If certain facts are required to be proven in order to give a court or judge special or limited jurisdiction, as for instance the posting of such a notice as we have named to give the county court jurisdiction at a special session, its action would be an absolute nullity; if there be a total defect of proof tending to establish such facts. But when there is some proof tending to establish these jurisdictional facts, though it be slight and inconclusive, if the court regard such jurisdictional
The judges in their opinion in the decided cases very generally agree, that wherever the courtis one of limited jurisdiction, the record must show on its face, th.atthe court has jurisdiction, or the facts must appear of record, which are necessary to give it jurisdiction, otherwise its judgment will be a nullity. (Brown v. Compton, 8 T. R. 431; Davison v. Gill, 1 East. 71; Commissioners v. Hearne, 2 Mass. 102, cited in Gorrell v. Whittier, in 3 N. H. 268; Commissioners v. Coombs, 2 Mass. 490.) In Sharers v. Wilson, 5 Har. & J. 132, Johnson, judge, said: “No principle of law is more evident, than that where the tribunal is of limited jurisdiction, or the proceedings are particularly prescribed by statute made on the subject, the course of procedure so prescribed must, on the face of the record, appear to have been, if not literally at least substantially complied with or the case must by its proceedings disclose itself to be within the limited jurisdiction.” (Walker v. Wynne, 3 Yerg. 73; McCullough v. Foster, 4 Yerg. 162; Walker v. Tanner, 9 Wheat. 548.) In some ot the cases the inferior tribunal had jurisdiction generally over the subject-matter but did not have jurisdiction over the particular case, sometimes because some notice was required to be given to confer the jurisdiction, and the necessary notice was not given, or it did not appear from the record, that this necessary notice was given. (Starr v. Scott, 8 Conn. 483; Reg v. Powell, L. R. 8 Q. B. 407; Underwood’s case, 3 Cow. 59.) But it seems to me if such jurisdictional facts do not appear on the face of the record of a court of special or limited jurisdiction, its judgment will be a nullity, though such juris
Some courts hold, that, while the recital or the record of these jurisdictional facts is necessary to give to the court of limited jurisdiction the right to hear and determine the ca.se, yet these recitals are hold to be prima facie and are open to contradiction. As this question does not arise in this case, I shall express no opinion, whether if the record of the special term of the county court had shown on its face the proper posting of the proper notice and every jurisdictional fact, it would in all courts and cases be regarded as absolutely true, or whether it would be regarded only as prima facie true and open to contradiction by parol proof. The quotation we have made from the opinion of Lord Denman in Reg. v. Bolton, 1 Ad. & El. N. S. 72 (41 Eng. C. L. R.) would indicate, that in some eases he thought these recitals of jurisdictional facts on the judgment of an inferior court ought to be regarded as absolutely true, and in others only as prima faciei rue and open to contradiction, and it does ■ strike me that there is much force in his reasoning.
The law, as we have stated it above, will, when applied to the record in this case, show clearly, that the judgment rendered by the couuty court of Tucker county at its special session on January 8,1885, in this case was rendered, when the court at that session had no jurisdiction to hear and de
It follows that the circuit court upon the appeal to it did not err in reversing and annulling the judgment of the said county court whereby it declared that said George A. Mayer at said election was duly and legally elected to said office and is legally entitled to enter into and perform the duties thereof for said term and that the appellant John J. Adams recover of the appellee Mayer hife costs. And the said circuit court likewise committed no error in remanding the said cause to the county court of Tucker for further proceedings without any instructions. For the entire action taken in this case by the county court of Tucker at the special session being illegal and null, the case had not really been finally decided by said county court and the circuit court of Tucker had no authority as an appellate court to decide any of the numerous questions, which had been raised in the case till after the final decision of the case by the county court of Tucker. For the same reason this Court will confine itself to a simple affirmance of the judgment of the circuit court of Tucker rendered on May 14, 1885, and a decree in favor of the appellee, Mayer, against the appellant Adams for his costs in this Court expended and thirty dollars damages.
AFFIRMED.