Alderson v. Commissioners

• Decision Date: 24 June 1889
• Citation: 9 S.E. 863,32 W.Va. 454
• Parties: ALDERSON v. COMMISSIONERS.
• Court: West Virginia Supreme Court

9 S.E. 863

32 W.Va. 454

ALDERSON v. COMMISSIONERS.

Supreme Court of Appeals of West Virginia.

June 24, 1889

Submitted June 18, 1889.

Syllabus by the Court.

1. Upon a writ of certiorari used as an appellate proceeding to bring to the circuit court for review a judgment or order of an inferior tribunal, the circuit court should decide all matters of law and fact, including those on the merits fairly arising on the record, either affirming such judgment or order, or reversing or modifying it, and render such judgment as the inferior tribunal should have rendered, or remand it to that tribunal where further proceedings are necessary with distinct decision on the points involved in the latter event.

2. The circuit court, where such further proceedings outside the record before it are necessary, cannot retain and try the cause, but must remand to the inferior tribunal for such proceedings.

3. County commissioners, in canvassing returns of an election for congress on a recount, sign various exceptions for alleged errors taken by one of the candidates voted for, and the count is completed, and result declared. The party excepting obtains a certiorari to review the action of commissioners, and the circuit court reverses it, and remands the matter to them, with directions to again perform the work of canvassing the returns. Held, that commissioners are not functus officio, but are yet competent to canvass the returns in compliance with the order of the circuit court.

Error to circuit court, Kanawha county; F. A. GUTHRIE, Judge.

Petition of John D. Alderson for a writ of certiorari to review the action of J. S. Cunningham, W. B. Calderwood, and S. S. Staunton, commissioners of the county court of Kanawha county, upon a recounting of votes polled in the general election for representatives in United States congress. The writ was awarded, and the cause remanded to the county court. From that part of the order remanding the cause petitioner brings error.

J. W St. Clair, Brown & Jackson, and Okey Johnson, for plaintiff in error.

A Burlew and J. A. Hutchinson, for defendants in error.

BRANNON J.

John D Alderson presented his petition to the circuit court of Kanawha county, representing that at the election on the 6th of November, 1888, he had received a large number of votes in all the counties of the Third district of this State for representative in the Congress of the United States, and that James H. MacGinnis also received a large number of votes for the same position; that on the 12th of November, 1888, the commissioners of the county court of Kanawha county met to ascertain the result of said election in that county; that the certificates from the precincts showed that Alderson received 3,329 votes, and MacGinnis 4,658 votes; that he, Alderson, demanded a recount of the ballots cast, and that said commissioners made such recount, and the result of the recount was for Alderson 3,341 votes, for MacGinnis 4,638 votes, and that such recount would elect Alderson; that said commissioners refused to accept the result as shown by their recount, and decided that they would accept the result of the recount of all the precincts except Alum Creek, St. Albans, Charleston, Coalburg, and Lewiston, and as to them they would accept the returns as originally certified as to Alum Creek, St. Albans, and Charleston, and would reject all the ballots cast at Coalburg and Lewiston, and declared that in said county Alderson received 3,122 votes, and MacGinnis 4,468 votes; that said commissioners examined witnesses as to the conduct of the election, and the swearing in of the officers of election, and refused him leave to cross-examine them, or introduce other evidence on the subject, and that witnesses were examined tending to show that ballots had been tampered with and altered at Charleston and St. Albans, and he was refused leave to introduce evidence to the contrary; that he moved the commissioners to declare the result as shown by the recount, except Lewiston, Alum Creek, and Fields Creek precincts, and exclude them for certain causes in the record stated, and his motion was overruled; that he moved to declare, if Alum Creek should be counted, to take the result on the recount of it, and also the recount of Charleston, which motion the court overruled; that he moved the court to include the result on the recount at Coalburg and St. Albans, which motion the court overruled; that he moved the court to exclude all ballots at West End and Fields Creek precincts, which motion the court overruled. Said petition gives the number of votes at the various precincts for each candidate on the original returns and on the recount. It is not necessary here to give more of the contents of said petition or record, as this statement will show their nature. The writ of certiorari was awarded, and a judgment was rendered by the circuit court reversing the action of the county commissioners, and remanding the cause to them, with instructions that they meet in special session "for the purpose of doing and performing the business for which the commissioners of the said county court were convened at the court-house of said county of Kanawha, on the 12th day of November, 1888, in relation to the election of representative in the congress of the United States for the Third congressional district of this state, among other things." Alderson moved the court to retain and try the cause, and not remand it to the county court, but his motion was overruled. He obtained a writ of error, and complains that the court remanded, instead of retaining and trying, the cause.

The first question is, did the circuit court err in failing, as plaintiff contends in argument, to decide all the points of error arising on the record, and in sending the case back to the county commissioners without giving specific rulings or instructions to them on the points, so that the parties and commissioners might have the benefit of the decision of the circuit court as to them. There has been much difference of opinion as to the scope of the hearing of a writ of certiorari, as will be seen in the opinion in Dryden v. Swinburn, 15 W.Va. 234, and Dryden v Swinburne, 20 W.Va. 89; some courts holding that the writ touched only questions of jurisdiction, power, or authority of inferior courts, or the regularity of its proceedings; others holding that all questions of law arising on the record could be passed on. The evident leaning of the courts of late has been to widen the field of this valuable remedial writ. I do not elaborate this matter, as I regard it settled by former decisions of this court. In Dryden v. Swinburn, Judge GREEN, speaking for the court, says: "The cases above cited, while they all agree that a trial de novo cannot be had in a superior court in a case brought before it by certiorari, yet they by no means agree as to the judgment which may be rendered. They agree that, if no error is found in the proceedings in the inferior court, its judgment should be affirmed; but they differ on the judgment to be rendered, if the judgment of the inferior court is found erroneous,--some holding in such a case all that the superior court can do is to render a judgment reversing the judgment of the inferior court; and others holding it may go further, and render such judgment as the inferior court ought to have done; *** that is, they may modify the judgment of the inferior court, or reverse it in toto, and enter up a new judgment, or remand it to the inferior court for trial. This latter practice would certainly seem to be far the most convenient, especially where the inferior court is a court of record, but there are highly respectable authorities which deny the superior court the right, unless so authorized by statute, to do more than simply to reverse or annul the judgment of the inferior court; but the weight of authority is in favor of the power of the superior court, in a case brought before it by certiorari, to do more than simply to affirm or reverse the judgment of the inferior tribunal, and is in favor of the authority of the superior court to affirm the judgment below, or to reverse it, and remand it to the inferior court, or to modify its judgment, and, in short, to enter up such judgment as the court below ought to have done, as in cases brought up by writ of error." Judge GREEN then expresses it as his opinion that the court may, if it reverse, remand the cause to be further proceeded in, or enter such judgment as the court below ought to have entered, and that the record alone is to be the basis of judgment in either case. Point 7 of the syllabus in that case is: "In all cases of certiorari, when used as an appellate proceeding, the superior court has a right to affirm the judgment of the inferior court, or to set aside and annul it, and enter up such judgment as the inferior court ought to have done, or remand the cause to it, as in a case brought up on writ of error." In Dryden v. Swinburne, 20 W.Va. 89, it was decided that, "a case being brought before a circuit court by a writ of certiorari for review, it should review, not only jurisdictional questions and questions of irregularity in the proceedings of the inferior tribunal also, but all questions of law, and all actions alleged to be...