Loomis v. Jackson
| Decision Date | 07 January 1873 |
| Citation | 6 W.Va. 613 |
| Parties | LOOMIS v. JACKSON. GEORGE LOOMIS, CONTESTANT, v. JAMES M. JACKSON, RESPONDENT. |
| Court | West Virginia Supreme Court |
1. Under the provisions of the Code of W.Va., chapter 6, section 13 the special court there authorized, has a limited jurisdiction. But such jurisdiction necessarily draws to it the right to hear and determine all questions touching the regularity and legality of the acts of the officers or persons conducting the election, and making and certifying the returns thereof. It may re-examine all or such parts of the election returns in said circuit as it may deem necessary, and correct errors found therein according to law and the truth. In the exercise of such jurisdiction, such court recognizes the presumption that all officers and other persons engaged in conducting elections, or in making returns and certifying the results thereof acted in accordance with the law, until the contrary shall be specifically alleged and fully proved.
2. What questions were raised by a motion to quash the petition notices, etc., of Contestant.
3. It is the intention of section 11, chapter 6 of the Code of W.Va., that every contested election provided for therein should be commenced and ended within a comparatively short space of time; and that it was not intended to permit an incumbent to hold his office much beyond the limit of its constitutional term, and thus enable him to carry on a protracted and dilatory contest with the person certified to have been elected to that office.
4. A party who desires to contest the election of a judge of a circuit court, is required, by the 11th section of chapter 6 of the Code, to give notice, with specifications, to the party whose right is contested within sixty days next after the election. The return notice of respondent must be given to the contestant within thirty days after the service of his notice upon respondent; and all the depositions taken must be concluded within forty days after the service of the return notice.
5. By section 4 of chapter 6 of the Code, it is expressly declared that: " In contests respecting seats in the legislature if new facts be discovered by either party after he has given notice as aforesaid, he may give additional notice or notices to his adversary with specifications as above prescribed."
In a judicial contest, the contestant in order to ascertain and collect the facts of the case, may postpone the service of his notice of contest until the sixtieth day after the election, and in like manner and for a similar reason the respondent may delay the service of the return notice until the thirtieth day thereafter.
6. As new facts or the clue to the discovery of them may for the first time be disclosed by the return notice itself new notices with additional specifications of new facts discovered after the service of the original notice and specifications, and after the expiration of the sixty days, may be given by the contestant, within the forty days allotted for taking depositions, subject always to the limitations necessarily implied in sections 5 and 8 of chapter 6, requiring that reasonable notice of the taking of depositions shall be given to the adverse party.
7. But in every such instance, it must appear by the proper averments that the facts relied on to authorize the giving of the additional notice or notices, are new facts, and were discovered after the service of the original notice, and that they are such as the party could not have learned at that time by the exercise of due diligence, and that they are also material and relevant to the main question in controversy.
8. The petition, in a contest for the office of judge, should be addressed to the special court, and not to the governor, as the one filed in this case. It ought not to contain any prayer for relief beyond what the court is authorized to afford, which is confined to the duty of certifying to the governor which of the parties to the contest had been elected to the office of judge, or that no legal election therefor had been held in the circuit.
9. To invoke the authority vested in the governor by section 13, chapter 6, it is necessary that the contestant should file with the governor a petition, with copies of his grounds of contest, notice and specifications.
Such petition must remain in the governor's office; without it he could have no evidence upon which to justify his official action.
10. What principles of law apply to cases of election contests.
11. Many provisions of the law, in regard to the manner of holding and conducting the election and counting the votes, and certifying the result, must be held to be directory only, and intended to point out to inexperienced and ignorant persons, who sometimes act as election officers, a plain, easy and direct way by which they are to attain the great end of their creation, viz: To ascertain the true result of their election. When the true result of a legal election has been ascertained, or can be ascertained by the officers charged with the performance of this duty, no irregularity, mistake or even fraud committed by any of the officers conducting the election, or by any other person, can be permitted to defeat the fair expression of the popular will as expressed in said election.
12. The People v. Cook, 8 N.Y. 67, and Cooley's Constitutional Limitations 75, 617, cited and approved.
13. What irregularities are held to be immaterial.
It is affirmed that no irregularity or even misconduct on the part of the election officers, or other persons, will vitiate an otherwise legal election, unless the result thereof has been thereby changed, or rendered so uncertain as to make it impossible to ascertain the true result. A different rule would make the manner of performing a public duty more important than the duty itself.
14. The allegata et probata must agree. Therefore a contestant, either in his petition or notice of the grounds of contest and specifications, must by direct averments substantially show what was the result of the election as declared by the returning officers, in what manner and to what extent that result will be effected by the errors & c., complained of in the specifications.
And unless it further appears upon the face of the petition, notice and specifications that the result of said election will be so changed by proof of said allegations, as to overcome the majority of the person who has been declared duly elected, or to show that it is impossible to ascertain the true result, it will be the duty of the court, on motion, to quash the same. The petition in this case not containing such averments, the question did not arise upon the petition.
15. By the provisions of chapter 3, Code of West Virginia, it was the intention of the legislature to create a judicial tribunal in conferring upon the boards of supervisors the power to call and examine witnesses, to compel the production of papers, to open, inspect, examine and count the ballots, and to make all orders deemed necessary to enable them to discharge these duties; and that their determinations upon that subject should be entitled to the force and validity of a judgment, until impeached on the grounds of mistake, corruption or fraud, precisely averred and clearly proved.
The intention was to avoid the necessity of resorting to contested elections of judges and state officers except in cases of mistake, corruption or fraud, by providing the people with a tribunal essentially and peculiarly their own, always accessible to them.
16. The legislature did not intend that a legal election should be set aside upon the ground of illegal votes received, or legal votes rejected, or any ambiguity in the ballots as to the designation of the person voted for or of the office intended.
17. All errors, irregularities and illegalities committed at the election, or existing at the time the election returns are examined by the boards of supervisors, must, in the absence of averments and proofs to the contrary, be taken and held to have been corrected by such boards, and excluded from their certificates of the correct result. From this it follows that any specification which alleges errors, irregularities, illegalities or malconduct on the part of the officers, or other persons, conducting the elections, committed before the action of the board of supervisors was had thereon, must be held insufficient, unless it is further alleged that such errors were carried into and formed a part of the result of the election as certified by the boards of supervisors.
18. Fraud is never to be presumed, it must be particularly alleged, especially when the act charged as a fraud may be innocent. In pleading a fraud, the pleader must by apt words allege in his pleading every act, fact and intent which necessarily enter into, and constitute that particular fraud; and these essentials must be alleged with such precision and certainty as to exclude every construction, except the fraudulent and wrongful purpose complained of; and if, from the face of the pleading, it is doubtful whether the allegations do in fact amount to that particular fraud or not, it is not well pleaded.
19. The rights of voters and the duties of persons conducting and certifying elections, considered and stated.
20. A constitutional convention, lawfully convened, does not derive its powers from the legislature; but from the people. The powers of such a convention are in the nature of sovereign powers.
The legislature can neither limit nor restrict the exercise of their powers.
The legality of the election for officers held on the 22nd day of August 1872, after the ratification of the new constitution and schedule, is not to be called in question by any court...
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