Brazie v. Fayette County Comm'rs.

• Decision Date: 22 November 1884
• Citation: 25 W.Va. 213
• Court: West Virginia Supreme Court
• Parties: Brazie et al. v. Fayette County Commissioners.

25 W.Va. 213

Brazie et al.

v.Fayette County Commissioners.

Supreme Court of Appeals of West Virginia.

Submitted November 22, 1884 Decided November 29, 1884.

1. The statutesec. 3, ch. 73, Acts 1882 authorizing a judge of the circuit court, in vacation, to issue a writ of prohibition, is constitutional. Such judge, being thus authorized to issue such writ in vacation, may issue a rule for such writ returnable before him and bear the same in vacation, and a writ of error lies from his judgment thus rendered in vacation to this Court.

2. The writ of prohibition lies from a superior court not only to in ferior judicial tribunals, but to inferior ministerial tribunals possessing incidentally judicial powers and known as quasi judicial tribunals, and also in extreme crises to purely ministerial bodies, when they usurp and attempt to exercise judicial functions.

3. Such writ lies from the circuit court to the county commissioners assembled in special session to ascertain the result of an election, under chapter 155, Acts of 1882, to prevent them from transcending their legitimate powers by examining witnesses and hearing evidence to determine whether the precinct-commissioners have certified and returned the votes of persons not entitled to vote with a view to rejecting such votes.

4. Aside from the quasi judicial functions necessarily incident to their duties in determining that the ballots, poll-books and certificates of the election returns laid before them are genuine, that they are in fact the returns and substantially in the form prescribed by the statute, and to correct or have them put in form if they arc not so, the duties of said commissioners are purely ministerial, and their judicial functions are limited to the acts prescribed in the twenty-first section of said statute.

5. The acts of said county commissioners must be based on the returns as certified to them from the several voting places of the county. The twenty-sixth section of said statute has no application to.their duties as canvasers of the election, the powers therein conferred apply alone to the final judges of elections in cases of contested elections.

The facts of the case are fully stated in the opinion of the Court.

J. H. &J. F. Brown for plaintiffs in error. E. W. Wilson for defendants in error. Snyder, Judge:

H. W. Brazie, A. W. Hamilton and John Kincaid presented their petition to the judge of the circuit court of Fayette county, in which they state, that at the general election for State and county officers held October 14, 1884, they were candidates and voted for as such tor county offices of said county, that is, said Brazie for the office of prosecuting attorney, Hamilton for clerk of the circuit court, and Kincaid tor county commissioner; that at said election M. Van Pelt, E. H. Easley and J. C. Montgomery were candidates and likewise voted for as such for said respective offices, that is, said Van Pelt for prosecuting attorney, Easley for clerk of the circuit court and Montgomery for county commissioner, but received a less number of votes for said respective offices than did petitioners as appears by the returns of said election certified by the commissioners conducting the same at the several voting places in said county; that, on October 20, 1884, tiie commissioners of the county court assembled at the courthouse of said county, and the clerk laid before them the ballots, poll-books and certificates returned to him by the commissioners at said several voting places, in order that they might ascertain and certify the result of said election in said county; that upon the demand of the respective candidates aforesaid the said commissioners proceeded to open the ballots of a number of voting places and recount the same, and having completed such recount as to a number of said voting places, they suspended such recount and on the motion of said Van Pelt, Kasley and Montgomery, proceeded to examine witnesses and hear evidence to prove that divers persons, at Wyan's and other voting places, not entitled to vote, had cast ballots for petitioners, to which action petitioners objected, but the said commissioners overruled said objection and, without notice of contest or opportunity to petitioners to defend their rights, proceeded to examine witnesses and hear evidence as to the right of persons to vote whose names were certified on said returns, and rejected six votes for petitioners so certified and returned by the commissioners at the voting place called Wyant's in said county; that said commissioners are still proceeding to examine witnesses and hear evidence outside of the returns for the purpose of proving that other persons who voted for petitioners were not entitled to vote, in order to exclude the votes of such persons in ascertaining the result of said election.

The petitioners, therefore, pray that a writ of prohibition to restrain and prohibit said commissioners ot the county court from transcending their lawful authority and from going behind said returns and examining witnesses as to the right of persons to vote whose names are certified thereon with a view to reject the votes ot such persons to the prejudice of petitioners, and to prohibit said Van Pelt, Kasley and Montgomery from procuring said commissioners to proceed in said illegal manner; and that a rule may be awarded against them to show cause why said writ shall not issue, &c, The said petition is duly sworn to, and on October, 27, 1884, the said judge awarded the rule as prayed for therein, returnable before him, in vacation, October 30, 1884. On the said day the parties appeared before said judge and on motion of the defendants, which was argued and heard, the judge discharged said rule and refused to issue the writ, and thereupon the petitioners applied to this Court for a writ of error, which was granted.

The parties appeared before this Court by consent, and as a preliminary matter the defendants in error, by their counsel, moved the dismissal of this writ ot error for the want ot jurisdiction in this Court to entertain it, for the following reasons: Because, First. The judge of the circuit court had no authority to issue the rule in vacation;

Second. If he had such authonty, the rule should have been made returnable to and heard by the circuit court of said county, the judge thereof having no uthority to hear it in vacation; and

Third. The commissioners of the county court, when assembled in special session for the sole purpose of ascertaining the result of an election held in their county, are not a court or such inferior tribunal against which a writ of prohibition will lie from a circuit court.

1. The writ of prohibition is as old as the common law. In England formerly it was used by the king as one of his high prerogative writs, and it was thereafter generally exercised only by the court of king's bench until 1873, when that court was merged in the high court of justice. Like other common law writs and remedies, it is regarded as generally applicable in this country, except in so far as it has been modified by positive statutory enactment. Our constitution provides that

" The circuit court shall have supervision and control of all proceedings before justices and other inferior tribunals, by mandamus, prohibition and certiorari." Sec. 12, art. VIII.

This provision does not warrant proceedings by prohibition in every case ot supervision, but the meaning is that, where a state of facts exist which would warrant a writ of prohibition at common law, such remedy may be resorted to by the courts of this State. Whether or not this is an enlargement of the common law remedy by this writ, it is unnecessary to decide in this case. It is certain that it is no limitation or restriction of that remedy. By the common law, as I understand, this writ was at first exercised alone by the king, and subsequently by the high court of the king's bench, which seems to have been always open and followed the king's person wherever he went. 3 Bla. Com. 41.

In this country this writ, like the other extraordinary writs of mandamus and habeas coiyus, has been frequently issued by the judges of courts in vacation and the power to do this is deduced from the common law practice, independent of any statutory enactment. State v. Stackhousc, 14 S. c. 417; Connecticut Railroad Railroad v. County Commissioners, 127 Mass. 50.

Our constitution declares that: The judicial power of the State shall be vested in a Supreme Court of Appeals, in circuit courts, and the judges thereof" &c. Sec. 1, art. VIII. This plainly gives judicial power to the judges as well as the courts, and leaves it to the legislature to say, in all cases where there are no absolute prohibitions in the constitution, what portions of this judicial power shall be conferred upon the courts and what upon the judges thereof. The first provision of the constitution above quoted which provides that:" The circuit court shall have supervision," &c, is not intended as a limitation upon this general power given to the the courts and the judges thereof, but as a limitation upon the power of the legislature to deprive the courts and judges of the supervision and control of inferior tribunals. If the words " circuit court" as used in said twelfth section, are construed to deprive the legislature of the power to confer upon the judges of said courts jurisdiction over any of the matters therein mentioned, then the judges could not be authorized to grant injunction or award either writs of mandamus or habeas corpus. Such a construction would not only be unauthorized by the canons of construction, but it would be contrary to the universal practice in such cases and greatly impair the efficiency of the judiciary and embarrass the administration of justice.

The legislature in the exercise of its powers has expressly authorized a judge of the circuit court to issue a rule in vacation Acts 1882, ch. 153, sec. 1, and it has likewise authorized...