29 W. Va. 63 | W. Va. | 1886
The only question argued by the counsel for the defendant in error is: — Has this Court jurisdiction to review the judgment of the Circuit Court? He insists, that it has not, and urges the following reasons :-Ast, because it was discretionary with the Circuit Court either to award or refuse the certiorari, and when that court has a discretion, its judgment can not be reviewed; and 2d, because the order sought to be reviewed was not a final judgment, if it can be called a judgment at all, there having been but one party, the plaintiffs in error, before the court, when the order was rendered.
It was anciently held, that whatever rested in the discretion of the court could not be reviewed. This was applied to amendments of or the refusal to amend pleadings or the record in any part, — to the continuance or the refusal to continue common-law suits to another term&wkey;to the granting of
Many of the States have adopted the ancient, doctrine and followed the English cases and the above cited cases of the U. S. Supreme Court. In other States, while the anciendoctrine has professedly not been repudiated, it has in fact been substantially modified, and cases have been reviewed, which would not have been reviewed by the English courts or by the Supreme Court of the United States. (Powell v. Jopling, 2 Jones 400; Pendleton v. Pendleton, Id. 136; Campbell v. Barnhill, 1 Jones 557; Golloway v. McKeethan, 5 Ired. 112; Bradhurst v. Pearson, 10 Ired. 157; Green v. Cole, 13 Ired. 425; Caldwell v. Remington, 2 Whart. 132; Newlin v. Palmer, 11
Again in a number of States decisions have been rendered, which amount to a repudiation of the ancient doctrine, and from which the inference to be drawn is, that, wherever a subject of discretion is decided by the court below, the decision must bein accordance with sound judicial discretion, governed by established rules and principles, or at least it must not be palpably, in violation thereof; and, if it is, such decision though on a subject within the discretion, as it has been called, of the court below, will nevertheless be reviewed and reversed by the appellate court. (Vanblaricum v. Ward, 1 Blackf. 50; Goldsby v. Robertson, Id. 21; Jones v. Cooper, Id. 47; Fuller v. State, Id. 63; Davis v. Gray, 3 Litt. 451; Maxwell v. McIlroy, 2 Bibb 211; White v. Hart, 35 Ga. 269; Avery v. State, 26 Ga. 233; McDonald v. Railroad Co., 26 Ia. 124; Mansfield v. Wilkerson, Id, 482; Shumaker v. Howeler, 22 Wis. 43; Dobbins v. State, 14 Ohio St. 304; Hook v. Nanny, 4 H. & M. 157, note; Syme v. Montague, Id. 180; Milstead v. Redman, 3 Munf. 219; Higginbotham v. Chamberlaine, 4 Munf. 557; Jacobs v. Sale, Gilmer 123; Anthony v. Lawhorne, 1 Leigh 1; McAlexander v. Hairston, 10 Leigh 486; Power v. Tinnie, 4 Call 411; Shanks v. Fenwick, 2 Munf. 478; Keys v. McFatridge, 6 Munf. 18; Rohr v. Davis, 9. Leigh 30; Fisher v. Vanmeter, Id. 18; Slaughter v. Tutt, 12 Leigh 147; Brugh v. Shanks, 5 Leigh 598; Grayson's Case, 6 Gratt. 712; Wormley's Case, 8 Gratt. 712; Kates’s Case, 27 Gratt. 561; O'Neal's Case, Id. 582; Hewitt v. Comm, Id. 627; Blosser v. Harshbarger, 21 Gratt. 214; Brown v. Speyers, 20 Gratt. 308; Bank v. Mathews, 3 W. Va. 26; Ressett v. Gardner, Id. 531; Davis v. Walker, 7 W. Va. 447; Wilson v. Wheeling, 19 W. Va. 328: Tefft v. Marsh, 1 W. Va. 41; Hoover v. State, Id. 336; Ott v. McHenry, 2 W. Va. 72; Campbell v. Lynn, 7 W. Va. 665; Shrewsbury v. Miller, 10 W. Va. 115; Lucas v. Locke,
But when the subject, upon which the inferior court has acted, is within its absolute or pure discretion, its action can not be reversed. (Craig v. Sabrell, 9 Gratt. 132; Boggess v. Robinson, 5 W. Va., Syll. pt. 3, p. 402 and p. 413; Ex parte Yeager, 11 Gratt. 655; French v. Noel, 22 Gratt. 454; Hein v. Smith, 13 W. Va., Syll. pt. 1-p. 358). Such cases of pure discretion according to the views of the courts, who claim the right generally to review the decisions of inferior courts in reference to discretionary subjects, are comparatively few in number and relate to subjects, which, when not based on statute-law, are governed by no fixed rules and precedents and do not involve the essential rights of parties but pertain more to the convenient management of the business of the inferior court; or, when they do involve the substantial rights of parties, they are regulated by some statute, and by its terms or from the nature of the subject it .is obvious, that neither the legislature nor the constitution never intended the action of the inferior court in these particular matters to be reviewed, or from their peculiar character- they were not properly reviewable by an appellate court. With a few exceptions of this character the spirit, which pervades these decisions last above cited including the Virginia and West Virginia cases, is, that when a matter is to be decided by an inferior court, though it be called a subject of discretion, as the awarding of a new trial or the granting of a continuance, amendments of pleadings and many other matters, and this discretion is so exercised as to prejudice the substantial rights of a party, it may be reviewed at his instance by an appellate court and corrected by such court, when the inferior court has not exercised a sound judicial discretion in accordance with established rules and principles. This seems to me right.
Formerly these questions were doubtless matters of pure discretion and then properly not the subjects of review ; but they are no longer so, as the rules and principles governing them with the few exceptions, to which I have referred, have now become, so settled and fixed, that these subjects
The above cited cases show, that the State-courts have made different degrees of progress in ridding themselves of the fetters put upon the appellate courts by this ancient doctrine. In some States scarcely any progress has been made. In Massachusetts for instance the ancient doctrine has been generally followed. Yet even there it has sometimes been questioned. (Strong, Petitioner, 20 Pick. 384; Carpenter v. Bristol, 21 Pick. 258). The difficulty in ancient times Avas, that in all such cases, when the subject was said to be in the discretion of the court, the principles governing them were so unsettled, that they could not' have been regarded other than as matters of pure discretion. There was no controlling rule or principle; and of course there could be no error, when no rule or principle was violated. But now in most of the cases formerly called matters of discretion rules and principles have been laid down ; and in many cases these rules are definitely and firmly fixed. In such cases these subjects should no longer be called matters of discretion; and, to distinguish them from what were anciently so -called, they are now often called matters of sound judicial discretion, distinguishing them thus from matters, in which no rules or principles have been laid down to govern the discretion of the court, and which are now frequently spoken of as matters of pure discretion or matters belonging to the arbitrary discretion of the court. But, as I have said above, there are not many matters, which affect the substantial interests of parties, in regard to which rules and principles have not been laid down to govern the discretion of the court. In such cases the exercise of the discretion of the court must be a sound judicial exercise of such discretion, not an abuse of it; for it may be reviewed by an appellate court, and, if if has been obviously abused
“Upon consideration of the whole subject both as to principle, and what has been said and done by the courts in this country, we can come to no other conclusion, but that the rule, that matters of discretion are not subject to review and error, must be confined to cases, which are purely matters of discretion or in their result not injurious to the party complaining of them. But whenever in the exercise of dis* cretionary powers it manifestly appear, that the discretion has been perverted and abused, or that the decision is contrary to well established rules and principles and to the injury of the party, then it must be subject to review in the appellate court like any other decision that is in violation of law and principle.”
Whatever may be the law elsewhere, this correctly states the law in Virginia and West Virginia, as wall appear on an examination of the numerous decisions in these States above referred to; and many other cases might be cited in both States, which are based on the law thus laid down by Powders, and which are in direct opposition to many of the decisions of the Supreme Court of the U. S. as well as many decisions in other States. We could not, if we were so disposed, change the law, as we have above stated it; for it may' be regarded as settled by a long train of decisions both in Virginia and in West Virginia. But, as I have said it seems to me clear, that these Virginia and West Virginia decisions are based on correct views, which must ultimately be universally adopted. The progress of law can not be arrested by holding on to the ancient doctrine, which has become entirely unsuited to the law, as it now is throughout the United States.
The counsel for the defendant insists, that the writ of certiorari is not a writ of right at common-jaw (except at the suit of the sovereign) and cites to sustain the position 2 Bac. Abr. Art. “ Certiorari/” Haine v. Campion, 4 Halst. 22; Duggen v. McGruder, Walker (Miss.) 122, (12 Am. Dec.
“The proposition asserted in the foregoing decision, that certiorari is not except upon the application of the king or the people a writ of right, .is abundantly sustained by the -authorities both at common law and under the practice in the United States. It is everywhere styled a discretionary writ. By this we do not understand, that the court or judge has the right to grant or refuse the writ capriciously; but that all the circumstances disclosed to the court are to be -taken into consideration, and writ is to be refused or, if im-iprovidently granted-is to be quashed, unless substantial justice and equity will be promoted by the exercise of the supervisory authority of the superior tribunal (Bannister v. Allen, 1 Black 414; Erwin v. Erwin, 3 Dev. 528; Bridge Co. v. Magoun, 8 Greenl. 293; Drown v. Stimpson, 2 Mass. 445; Less v. Childe, 17 Mass. 352; Hun v. Grimes, 2 N. H. 210; Marc v. Baker, 2 Cow. 396; People v. Supervisors, 15 Wend 198; Trustees of School v. School-Directors, 10 Chicago L. N. 380; Flournoy v. Payne, 28 Ark. 87; Railroad Co. v. County Comm'rs, 112 Mass. 206; Keys v. Marine Co., 47 Cal. 252; People v. Andrews, 52 N. Y. 445; Waldridge v. Waldridge, 46 Vt. 617; Knapp v. Hill, 32 Wis. 467; 18 Albany L. J. 142). The discretion of the court is to be exercised as in other cases not from outside rumor nor from the representations of parties made out of court but from the petition and return or such other 'matters, as under- fije, practice of the. particular State -are .proper and compefeW, fpr judicial
There can be no question, but that, while the writ of cer-tiorari is discretionary in the sense above explained and not a writ of right, still the discretion to be exercised is clearly not a pure and arbitrary discretion but one regulated by precedent and established principles; and therefore, whatever may be the law elsewhere, in Virginia and West Virginia a decision would be reversed, which awarded the writ of certiorari, when according to precedents and principles laid down as governing in such cases no writ should have been awarded; and on the other hand if a writ had properly been awarded and was afterwards improperly quashed as improvidently awarded, the appellate court would reverse such decision ; and we will presently see, that the decision would be reversed also, if the court had improperly refused to grant such writ of certiorari, when the applicant had a right to have it awarded in accordance with precedents and principles laid down as regulating the issuing of such writ, and he had no other redress except such review and reversal of such decision. The authority to review a certiorari case, when the case has been heard, both parties being before the court below, is unquestionable, though the writ be a discretionary writ in the sense we have explained. Under the numerous authorities both-in Virginia and this State, which I have cited, there could be no hesitancy on the part of this Court to review a case of certiorari decided in the court below. Such a cáse is undistinguishable from the numerous cases, which the Virginia and West Virginia Court of Appeals have reviewed, when the error complained of was the refusal to award a, new trial or grant, a continuance to the plaintiff in error, whereby he was improperly forced to try the case, when he was unprepared. These are obviously matters within the discretion of the court.below in the same
All of these cases were brought before us by writ of error, that having been decided in the first case to be the only proper way under our statute-law, though they could not have been brought before us in that way but for the statute. But in no case has a doubt as-to our right to review such-cases, because the writ of certiorari was not a writ of right but a discretionary writ, been suggested until the suggestion now made in argument by the counsel for the defendant. The numerous cases both in-this State and in Virginia, which we have cited, show beyond question, that, whatever doubts may have been raised in other States or elsewhere as to the right to review' a certiorari case, because it was discretionary with the court below to give the writ, there never could have been any question of the sort raised in this State or in Virginia. Though our jurisdiction in such cases was-disputed in Board, &c., v. Hopkins, 19 W. Va. 84, it was on entirely different grounds, which were applicable to that particular case. But if our general right to review cases of certiorari, where no special objection could be raised to our jurisdiction, had been questionable, it was settled beyond all possible dispute by the amendment to our constitution, which took effect on October 12,1882. Article VIII, section 3, provides, that this Court shall have appellate jurisdiction “in cases of quo warranto, habeas corpus, mandamus and certiorari(Warth’s Am. Code 23; Board v. Hopkins, 19 W. Va. 84; Fowler v. Thompson, 22 W. Va. 106.)
But it is insisted, that, though this Court may have jurisdiction by writ of error to review certiorari cases, there are
In the case of Etheridge v. Hall, 7 Porter 56, Goldthwaite,, Judge, says: — “It is said by Chancellor Walworth in the case of Ex parte Negus, 10 Wend. 34, that a writ of error would-not lie on the denial of mandamus or prohibition ; and it is only by virtue of a statute, that the judgment rendered on such writs can be reviewed for error in the English, courts ; and that it is yet an open question in these courts,, whether the same rule does not prevail as to writs of habeas-eorpus.” In New York it has been held, that a writ of error' will lie on the refusal to grant a writ of habeas corpus-(Yates v. The People, 6 Johns. 402). Whatever may be the rule adopted by the English courts on this subject, we feel-warranted by the decision last cited in deciding, that there-is no reasonable distinction between the judgment of the court refusing to grant a writ and the one rendered on it;: for the right of the citizen may be as much prejudiced by refusing to render him the means of attaining justice as by an incorrect judgment.
In the case of The State v. Commissioners of Taledega, 3 Porter 416, there was a denial of a mandamus, and on writ of error the case was reviewed without objection. But ini
“If the judgment of the Circuit Court is to be considered as final on the subject matter of the petition, there can be no doubt of the authority of this court to reverse its determination; and we can arrive at no other con-' elusion. We are daily in the practice of reversing judgments rendered on motion to quash ordinary writs of attachments, which are certainly not more final in their character, than is the one we are considering. We conclude then, that the judgment rendered in this case is such a final judgment, as to give this court jurisdiction on a writ of error; and this judgment must be reversed and the cause remanded with directions to the Circuit Court to proceed in the cause and issue the writ prayed for, unless sufficient cause-be shown by the defendant against it.”
In Mayo v. Clark, 2 Call. 276, it, was decided, that, when-' a District Court refused to grant a supersedeas to the County Court, the Court of Appeals will award a supersedeas to-said order of the District Court. The Court of Appeals iu that case very properly declined to award a mandamus to the District Court commanding it to award a supersedeas to the judgment of the County Court. In that case there was no party before the District Court but the plaintiff, and the judgment of the District Court was not technically a final judgment; but it was practically a final judgment, as the-judgment- of the County Court would necessarily remain in. force, if no supersedeas was granted by the District Court;, for it alone was authorized .to grant such supersedeas. And this granting of a supersedeas was discretionary with the District Court in precisely the same sense, in which the-awarding of a writ of certiorari was discretionary with the Circuit Court in this case. -There is in my judgment no difference in principle between the case before us and Mayo v. Clark.
There are other decisions precisely like the above. Thus in Williams v. Bruffy, 12 Otto 248, it was decided, that in a case, in which the Supreme Court of the United States had jurisdiction to review a case decided by the Court of Appeals of Virginia because of the character of the case when
“By the law of Virginia the application is made to the .Supreme Court of Appeals for a writ of supersedeas. The court looks into the record of the case and only allows the writ, when of the opinion, that the decision complained of .ought to be reviewed. Its action upon the record is in effect a determination, whether or not it presents a sufficient question for the consideration of the court. If it deem the judgment of the court below plainly right and reject the application on that ground, and its order of rejection so state, no further application for the writ can be presented. The judgment of the court below is thenceforth irreversible. So in .effect its refusal of the writ on the ground is equivalent to an affirmance of the judgment, for the reason that the record .discloses no error.”
This decision and reasoning appear to me to cover exactly the case before us, so far as the jurisdiction of this Court to review the order of the Circuit Court made February 10,1885, is concerned. If that order had been based on the failure of the plaintiff, to notify the County Court of Wetzel, that they intended to apply to the Circuit Court of Wetzel for this writ of certiorari the case might have been different, as after the making of such order the Circuit. Court of Wetzel might :still have granted a writ of certiorari on the presentation by
The counsel for the defendant in his argument in this case admits, that the plaintiffs in error have no redress left, and insists, that this judgment of the County Court complained of is now forever irreversible. If the decision and reasoning of the Supreme Court of the United States is sound, for that very reason we should take jurisdiction and decide the writ of error, which we have awarded, and not dismiss it as-improvidently awarded.
There have been recent decisions by our Court obviously based on the reasoning of the Supreme Court of the United. States above quoted. In Brazie v. Commissioners, 25 W. Va. 213, this Court entertained a writ of error to an order of a judge in vacation refusing to award a writ of prohibition to' restrain the County Court of Fayette county from proceeding in a certain manner to ascertain and certify the result of’ an election for county-officers. The jurisdiction of this Court' to hear and determine the writ of error appears to have been conceded, though there was a protracted controversy on the merits. Chenowith v. Commissioners, 26 W. Va. 230, was a case altogether similar', to the case before us. It is a writ
There is a case in 11 Gratt. whieh in principle sustains the position, that this Court has jurisdiction in such a case as the one before us. I refer to Morris, ex parte, 11 Gratt. 292, in which it was decided, that, “ if a Circuit Court refuse to issue a mandamus in a proper case, the party may apply to the Supreme Court of Appeals for a supersedeas .or writ of error and have the action of the Circuit Court reviewed and corrected.” Judge Lee delivering the opinion of the court said on page 294:
“I think, there can be no question as to the power of this court to review the action of the Circuit Court in refusing to award a mandamus upon an appeal from or writ of error or supersedeas to the order refusing the same. The order is final, and in a case involving a civil right, not a matter of controversy merely pecuniary, and the case is thus within the general terms of the law providing the appellate jurisdiction. * * * * The review of an order refusing a mandamus is in entire conformity with the long settled previous practice of this court in similar cases. In Mayo v. Clark, 2 Call 276, a District Court had refused to grant a superser deas to an order of a County Court concerning a road. The*82 Oourt of Appeals refused to grant a mandamus to compel the District Oourt to grant a supersedeas; but did grant a supersedeas to the order of the District Oourt refusing it. * * * Several other cases may be found in which the court of appeals has allowed wits of supersedeas to orders of inferior courts refusing to grant writs of mandamus. (Dawson v. Thurston, 2 H. & M. 132; Dew v. Judges of Sweet Springs District Court, 3 H. & M. 1; Manns v. Givens, 7 Leigh 689.)”
These cases cited differed from the one then before the Virginia Oourt of Appeals in this, that in the case before the court the Circuit Oourt as in our case refused the writ and dismissed the petition, when it was presented, while in the other cases it refused the writ after a rule to show cause had been issued and returned. But it is obvious, that the Oourt of Appeals considered, that this made no difference, £ind that the cases were substantially the same.
It seems to me therefore, that the able counsel for the defendants in error in Chenowith v. Commissioners, 26 W. Va. 230, while contesting the case, wherever a contest could be made, very properly conceded the jurisdiction of this Oourt in that case, which was a case like the one now before us. Upon these Virginia cases Judge Lee says: — “There can be no question of the power of the court to review the action of the Circuit Oourt in refusing to award the writ.” The Virginia cases are binding authority upon us and independent of our own decisions settle our right to take jurisdiction in this case. There is also another decision rendered by this Oourt, which, if we had no other authority, would justify us in holding, that this order of the Circuit Court refusing to grant a writ of certiorari and dismissing the plaintiff’s petition was in effect a final judgment, from which a writ of error lies to this Oourt. I refer to the decision in Henen v. Railroad Co., 17 W. Va. 881, in whichit was decided, that the order of a Circuit Oourt removing a case at law to the Circuit Oourt of the United States is reviewable by the Supreme Oourt of Appeals of this State by writ of error. In rendering that decision we followed the decisions of the Courts of Appeals of several States. (Askesby v. Villas, 24 Wis. 165; Stat. ex rel. v. Judge, &c., 23 La. Ann. 27 (8 Am. Rep. 583);
There is really less difficulty connected with the taking of jurisdiction by this Court in such a case as this one now bo fore us, than there was in the assumption of jurisdiction by the Court of Appeals of Virginia in like cases, because we have changed our law and. no longer require the judgment of the Circuit Court to be final in order to authorize the Supreme Court, to review it, but only require it to settle the principles of the case. While I think, the judgment, which we are called on to review, might well be treated as in effect final, as such judgments have often been, yet, it seems to me, it clearly settles the principles of the case; for it is admitted, that if the judgment stands, the judgment and action of the County Court will be irreversible and final. The principles of the case therefore are clearly as well settled by •the order of the Circuit Court appealed from, as if the order had been made after the return of the County Court of Wet-zel to a writ of certiorari, and the order had been in affirmance of the judgment of the County Court; for the ordei actually made is in effect such an affirmance. There is under our law no place for the exercise of ingenuity in settling, whether this judgment or order of the Circuit Court is technically a final judgment. The counsel for the defendant in •error has devoted most of his argument to endeavoring to show, that this order of the Circuit Courtis not technically a final judgment, and he insists it is no judgment, or at any rate not a judgment which can be reversed. To sustain this he refers to State v. Wood, 1 Zab. 682. This simply decides, that “A writ of error will not lie to Supreme Court for refusing to allow a certiorari?'' The reason given for this decision is simply that “the refusal to allow a writ of certiorari is a matter of discretion.” This case simply shows, that iíew Jersey is one of the States, in which the decisions* which are called discretionary, can not be reviewed. We have seen that West Virginia is a State, in which these discretionary decisions can be reviewed. The same case is reported at greater length in 3 Zab. 560. The syllabus is: “A writ of error will not lie to reverse the decision of an inferior court refusing to allow a certiorari, such allowance not be
The case of Allen v. Tyler, 3 Vroom 501, is also relied on by the defendant.. This decision was a refusal to award a writ of error to a decision of a court denying the application of the defendant to be discharged from arrest in a civil suit on contract, when arrest was founded on affidavits, that the debt had been fraudulently contracted, because this was not a final order or judgment. I suppose this decision was right but it seems-to me to throw no light on what should be our decision in this case. The case of Scott v. Burton, 6 Texas 322 (55 Am. Dec. 782) is also relied on by the defendant. The syllabus of the case is: “ The form of the final judgment is immaterial; but in substance it must show intrinsically and distinctly .and not inferentially, that the matters in the record have been determined in. favor of one of the litigants, or that the rights of the parties, have been adjudicated. Therefore a judgment, that a defendant recover his- costs, without an order, that the plaintiff take nothing by his suit, or some order equivalent, thereto,.is not a final judgment and an appeal from such judgment must, be dismissed at the cost of the appellant.” In the case before us the court in its order dismissed the- plaintiff’s' petition. This-was certainly the equivalent of, “'an order, that the plaintiff take nothing by his suit,” and clearly distinguishes the case before us from thé Texas case. This case is relied on, as-
In the investigation, which I have made, 1 have come across several cases apparently opposed to the case of ex parte Morris, 11 Gratt. 292, above cited. These cases hold, that the refusal to allow a writ of mandamus can not be reversed. It was so held in State v. Cappeller, 37 Ohio St. 121; but the reason given is', that after the refusal of mandam%t,s by the inferior court the proper remedy is to apply for the writ to the Supreme Court of Appeals. When this can be done, the refusal of the writ by the inferior court would not either inform or in effect be a final decree, nor would it settle the principles of the case. It would then be like the refusal, of an inferior court to award an injunction, which for a like reason could not be appealed from in this State. See McDaniel v. Ballard, 4 W. Va. 196. So it has been held in Missouri that a refusal of the court to award a mandamus can not be reviewed. See Shreor v. Livingston Co., 9 Mo. 195; Ex parte Shagg, 19 Mo. 399. But in these cases the court assigns no reasons for its conclusion, and the opinions are very brief amounting to little more than an announcement of their conclusion. These cases can have very little weight or influence out of Missouri, where they are binding authority. So in New York the same has been held in two cases for special reasons. See 13 Wend. 130 and People ex rel. v. Insurance Co. But in these cases the court regards the proceeding as not the regular and proper proceedings in a mandamus case, and that the plaintiff had waived rights even in the last case, as it was presented ; and it was held, that under the circumstances the application for the alternative writ of mandamus as addressed to the discretion of the court, and the decision was therefore not reviewable. None of these cases, it seems to me, can properly influence our decision in this case, because of the diversity of our law’ from the law elsewhere. I conclude therefore, that we clearly have jurisdiction to decide this case and ought not to dismiss the writ of error as improvidently awarded.
The case of Hamilton v. Michels, 7 Ohio St. 79, is referred to as showing what constitutes a county and the object of its creation, that it is a local sub-division of a State created by the sovereign power of the State, of its own will, without the solicitation, consent or concurrent action of the people who Inhabit it, but superimposed on them by a sovereign and paramount authority; that it is created almost exclusively with a view to the policy of the State at large, for the purpose of political organization and civil administration in matters of finance, of education, of provision for the poor, of military organization, of the means of travel and transport,
This language is as broad and comprehensive, as it can well be, and in terms applies to all counties. I can see no reason, whv it. should not apply to Wetzel as well as to any other county. The fact, that in the act of 1816, which established Wetzel county, instead of simply saying, that the county-seat should be at New Martinsville the act said the permanent county-seat should be there, it seems to me, can have no effect upon the meaning of this 15th sec. of ch. 39 of the amended code of W. Ya. The truth would seem to be, that this declaration of the legislature of Virginia in 1846, that New Martinsville should be the permanent county-seat of Wetzel, never did have anjr meaning or effect. The ordinary mode of fixing a county-seat in an act upon organizing a county would have fixed the seat of the county then as permanently, as the organizing of Wetzel county did. In neither case could the county-seat be changed except by or under the authority of an act of the legislature, and by such an act or under such authority it could be just as well changed, when the legislature, which formed the county, declared that a designated place should be the permanent
The second assignment of error is, that the County Court of Wetzel county did not ascertain, that the petition had been signed by the requisite number of legal voters in the manner prescribed by law, that is, by allowing one vote for every six persons in the county as shown by the last census. There is, it seems to me, nothing in this assignment of error. The number of- voters required to sign this petition is by 15th sec. of ch. 39 of Warth’s Amended Code, p. 255, fixed at one-fifth at least of all the legal voters of the county, to be estimated by allowing one vote for every six persons in the county as shown by the last census. There were according to the petition presented to the Circuit Court asking
The third assignment of error is, that the clerk of the County Court of Wetzel did not make out and certify in the manner prescribed by law and deliver to the sheriff to be posted copies of said order of election but delivered instead printed copies, no part of which, not even the signature of the said clerk, was in writing, and such copies and no other were posted by the sheriff. The 15th sec. of ch. 39 of Amended Code, page 255-6 of Warth’s Amended Code, provides: “The clerk of said court shall upon the adjournment of the court make out and certify as many copies of the order (the one requiring a vote to be taken on the re-location of the county-seat) as there are voting places in the county and deliver the same to the sheriff thereof, whose duty it shall be to post one of said copies or cause it to be done at each of said places of voting at least forty days before the day of such election.” The usual mode, in which this provision of the law is executed, is for the clerk to make out a copy of this order and certify the same as a copy, and then for the sheriff to cause to be posted a printed copy of this certified copy of this order including the certificate of the clerk at the foot of it at least forty days before the day of such election. From the statements in the petition for a certiorari to the Circuit Court of Wetzel I presume, that this was the mode, in which this
There'was one ground, upon which the petition to the Oir-Ocuit Court for a writ of certiorari was based, which was not assigned as a ground of error in the petition to this Court for a writ of error, and which appears to have been abandoned by the counsel for the plaintiff. I.t was, “that said petition to the County Court was not presented to or the order of election made by said County Court at a regular sesl sion duly named and appointed. The law (15 sec. of ch. 39 of the Amended Code) provides, that said petition shall be presented, and order made, “at a regular session of the County Court of such county.” It does not require such session to be named or appointed for such purpose.
The only other assignment of error is, that the commissioners of the election did not make out, sign and return separate certificates of the result of this election at any of the precincts of the county. The statute (ch. 39, § 15 of Am. Code) provides, “That the commissioners of election of each place of voting shall make out and sign a separate certificate of the result of said vote and deliver the same to the clerk of the County Court, and said clerk shall lay the same before the County Court at its next session thereafter.” This, the petition to the Circuit Court of Wetzel for a certiorari says, the commissioners of election at every voting place utterly failed to do. The Circuit Court bearing in mind, that a writ of certiorari is a discretionary writ and not a writ of right, arid that it should be refused, unless substantial justice and
I must confess, that, when I first read this record, I was of that opinion; and I was confirmed in it, when after examining the other grounds of error in the proceedings of the Oounty Court alleged by the plaintiff, I found them to be frivolous, and the petition for a writ of certiorari so worded as to be well calculated to mislead the court. It is probably true, that these commissioners did not wholly neglect to certify the result of the vote on the re-location of the county-seat at each of their several places of voting, but that they included the statement of this result in the same certificate with their statement of the result of the voting for the various officers, who were elected at the same election. The petition does not state this, but it does not say the contrary, nor does it say anything to induce us to think the contrary. The Circuit Court in view of the character of this petition doubtless assumed, that this was the fact; and regarding this as a substantial compliance with the law, it refused to award a writ of certiorari. The Gircuit Court doubtless regarded the failure to make out a statement of the result at each precinct of the vote on the re-location of the county-seat in a separate certificate as not a failure to perform their duty substantially, provided a statement was made and certified by them in the certificate of the result of the voting at each precinct for different officers then voted for. This, it seemed to me at first, was true; but a more careful examination of our statute-law has caused me to change my opinion on this point.
The voting on the re-location of a county-seat and the election of a large number of State and county officers under
The mode in reference to the election of officers is to be found in ch. 3, secs. 20 and 21, and is as-follows: The commissioners at each precinct make out at the close of the Yoting and sign two certificates, the form of which is given,, stating how many votes at that precinct were given for each candidate for each office. The ballots are all sealed up by the commissoners, who or one of whom within four days-thereafter deliver the ballots-so sealed up, one set of poll-books- and one of their certificates to the clerk of the County Court and the other certificate and set of poll-books to the clerk of the Circuit Court. On the 5th day after the election the commissioners of the County Court meet in special session at the-court-house, and these clerks lay before them the bailots, poll-books and certificates which have been left with them by the different commissioners at the different precincts, and they may require the attendance before them of these precinct commissioners of election or any other person present at the election at any precinct and examine them on oath and make all proper orders necessary to procure correct returns and ascertain the true result of such election. And they may upon the demand of any candidate open and examine any of the sealed packages of ballots and re-count the same, after which they must re-seal them up in another en-Yelope. When they have made their certificate as to each of the"officers elected in a prescribed form, they are required to deposit the sealed packages of ballots in the County Court clerk’s office, and he is required to carefully preserv e them and the poll-books for one year, and, if there be no contest for any office, they are then to be destroyed without opening the sealed packages ; and if there be such contest they are to be destroyed at the close of the contest.
The question is, whether this provision, that the certificate of the result of the vote on the re-location of the county-seat made out and signed by the commissioners at each precinct or voting place shall be a separate certificate and not be inserted in the certificate as to the result of the vote for each officer, is mandatory or simply discretionary. It is obvious, that these certificates might be tampered with and altered, after they had been signed by the commissioners at the different precincts, and, to prevent this, the legislature has made several provisions, which, so far as the 'certificates of the commissioners at the several voting places are concerned, will render it difficult to alter them, after they are signed, and, if any alteration be made, easy to detect the fraud and prevent it from being successful. In the first place in the election of officers the certificate is made out in duplicate, one of which is delivered to the clerk of the County Court-, and the other to the clerk of the Circuit Court, who each keep them but for a few days, when they present them to the commissioners of the County Court, who are to meet-in five days (Sundays excepted) to determine the result of the election. The difficulty of successfully altering these certificates is much increased by the fact, that they are in
The legislature has made less provisions to prevent the alteration of the certificate of the precinct commissioners of the result of the voting on the re-location of a county-seat; but this renders it the more incumbent on the courts to see,
In this case the law does not require the number of votes cast for and against the re-location of the county-seat to be written out in words by the commissioners in their certificates, nor does it require duplicate certificates to be made out and one delivered to the clerk of the County Court and one to the clerk of the Circuit Court. Almost the only precaution against a fraudulent alteration of the certificate is that, requiring the precinct commissioners to deliver their certificates of the result of such vote within four days after the election (Sundays excepted) to the clerk of the County Court in pierson, and requiring him to keep it in his custody and care till the next session of the County Court, when he shall produce it before the court, who shall ascertain and declare the result of the vote and enter it of record. It will be seen at once, that the liability to a fraudulent alteration of the certificate of the precinct commissioners on this question would be much increased, if it should not remain all the time in the custody of the clerk'of the County Court from the time it may be delivered to him, till the time it be laid by him before the County Court at its next session. If then the precinct commissioners were allowed to insert the result of the vote on the re-location of the county-seat in the certificate of the result of the vote on the election of officers and make out no separate certificate, this certificate would under the law be delivered by the clerk to the County Court on the fifth day after the election (Sundays excepted) and would remain in their charge, till they had declared the result of the vote on the election of all the officers voted for, which in some cases might be more than a week, and then this certificate would be returned to the clerk of the County Court. It is obvious, that there wnuld be much more probability of a fraudulent alteration while it was thus out of the hands of the clerk than while in bis care and custody.
But it may be said, that, if the certificate of the precinct commissioners in this case were not made out separately, but the result of the vote was inserted in the certificate of the result of the vote for officers in the manner required by law
Again it may be said, that the ascertainment of the true result of the vote on re-location, to be made by the County Court at its next session, would prevent any injury resulting from such attempted fraud more effectually, for the reason that the investigation of this question by the County Court in reference to the election of officers had been made five days after the election. If this were so, I do not see how it can effect the question under investigation; but it does not seem to me to be so. It is true in ascertaining the result of the vote on the re-location of the county-seat the County Court could exercise all the powers of any other court in making any investigation with possibly the exception of opening the sealed ballots, which the statute-law seems to forbid, except in case of contested election, though it may be too literal a construction of the law to say, that they could not be opened by the County Court in detérmining the question, whether the county-seat had been by the vote of the qualified voters relocated. But be this as it may, the opening of them by the County Court at its next session, perhaps 60 days after the election, and after they may have been once before oi>ened by the County Court five days after the election on the demand of some candidate, would certainly be a far less efficient mode of detecting such a fraud, than it was, when they were first opened. For the very lapse of time itself ■would greatly increase the danger of fraud; and as the County Court could in their special session five days after election summon witnesses and examine them on oath, I
I am for these reasons of opinion, that we can not regard the law requiring a separate certificate of the precinct commissioners of the result of the voting at their precinct on the re-location of the county-seat as directory, but must regard it as mandatory. Of course, if they had failed to make out any certificate, they would probably have violated the law in a most important matter, and the County Court could not decide, that the county-seat was re-located at such an election. As it was expressly alleged in the petition to the Circuit Court for a writ of certiorari to bring before that court the proceedings of the County Court, in which said court declared, that the county-seat of said county was removed, that the commissioners of election at the several precincts did not make out, sign and return separate certificates of the result of the election on this question, as required by law, and as this petition was sworn to, in this preliminary stage it must be treated as true. The Circuit Court ought therefore to have awarded the writ of certiorari prayed for in the petition; and after the return of the County Court to this writ and proper investigation have decided the case.
For these reasons the order of the circuit court of Wetzel; made Feby. 17th, 1885, must be reversed, set aside and annulled; and this Court proceeding to render such judgment, as should have been rendered, doth remand this cause to the Circuit Court of Wetzel with, directions to award the writ of certiorari prayed for by the plaintiffs in their petition, and further to proceed with this case according to the principles laid down in this opinion, and further according to the principles governing courts of common-law. No costs are awarded the plaintiffs in this case, as, when the order complained of was entered by the Circuit Court, no persons.other than, the plaintiffs were before that court.
Eeveesed. Remanded.