Chenowith v. Comm'rs Of Randolph County.

• Decision Date: 03 July 1885
• Citation: 26 W.Va. 230
• Court: West Virginia Supreme Court
• Parties: Chenowith v. Commissioners of Randolph County.

26 W.Va. 230

Chenowith

v.Commissioners of Randolph County.

Supreme Court of Appeals of West Virginia.

Submitted June 13, 1885.

Decided July 3, 1885.

1. The writ of certiorari lies in this State from a circuit court or a

judge thereof in vacation to the county court commissioners convened in special session to ascertain the result of an election, (p. 232.)

2. The said county court commissioners, after they have opened the

sealed packages of ballots returned by the district commissioners, re-counted them upon the demand of opposing candidates for the same office and then again sealed up the ballots, can not under the provisions of sec. 21, chap. 155 Acts 1882 upon a subsequent demand of either of said candidates re-open the sealed packages and re-count the ballots a second time. (p. 234.)

The opinion of the Court contains a statement of the facts of the case.

L.D. Strader for plaintiff in error.

B. L. Butcher and J. J. Davis for defendant in error.

Snyder, Judge:

This is a writ of error to an order of the judge of the circuit court of Randolph county refusing a writ of certiorari upon the petition of the plaintiff in error, Z. T. Chenowith The allegations of the petition on which this court founds its decision are in effect as follows:

The petitioner and Warwick Hutton were opposing candidates for the office of Sheriff of Randolph county and voted for as such at all the voting precincts in said county at the general election held October 14, 1884; when the commissioners of the county court convened in special session, October 20, 1884, to ascertain the result of said election in said county, it was found that the poll-books and certificates of the several districts showed that said Hutton had a majority of three votes over those cast tor petitioner; thereupon petitioner demanded of said court that they recount the ballots cast in seven of said districts and then the said Hutton demanded a re-count of the ballots cast at the two remaining districts; the court did open and recount the ballots of all the districts, and on the same day the court again sealed up the ballots of the several districts along with the original envelopes'in other envelopes which were properly endorsed by the clerk of the court; it was found as the result of the re-count that petitioner had 849 votes and the said Hutton 846; on the next day, October 21, 1884, the said Hutton demanded of the court that it should again open and re-count the ballots of three of the districts and that petitioner objected, but the court overruled his objection and re-opened and re-counted the ballots of said districts and the result of this re-count, by including certain votes for Hutton which were objected to by petitioner, was 848 for Hutton and the same number for petitioner, thus producing a tie vote between them; then on the following days, to-wit, on October 22 and 23, 1884, petitioner demanded that the ballots of certain districts should be re-counted a third time and while proceeding with such re-count the court discovered that two ballots which had been voted for Hutton had been taken from one of the envelopes and two ballots for petitioner substituted therefor; upon this discovery the Court refused to consider said third re-count, and adopted as the true result the said second re-count which gave each of the candidates the same number of votes; the court then elected said Hutton to the office of sheriff and gave him a certificate of his election to said office. The prayer is that the proceedings of said county court may be supervised by writ of certiorari.

The statute, under which the county court is required to proceed in determining, the result of an election, is in substance as follows: The Commissioners of the county court, shall convene in special session on the fifth day after the election and the ballots, poll-books and certificate shall be placed before them for examination. "They may, if deemed necessary, require the attendance of any of the commissioners or canvassers, or other officers or persons present at the election, to answer questions under oath respecting the same and may make such other orders as shall seem proper to procure correct returns and ascertain the true result of said election in their county. * * * * They shall, upon the demand of any candidate voted for at such election, open and examine any one or more of the sealed packages of ballots and re-count the same, but in such case they shall seal up the same again, along with the original envelope, in another envelope, and the clerk of the court shall write his name across the seal," &c. When they have declared the result of the election they shall deposit the sealed packages of ballots with their clerk to be preserved by him for one year if there is no contest and if there be a contest until the same is decided and then they shall be destroyed. Sec. 21, ch. 155, Acts 1882, p. 498.

The next succeeding section of said Act provides, that the said courts, "under the regulations prescribed in the next preceding section, shall carefully and impartially ascertain the result of the election in their county, and in each district thereof, and make and sign as many certificates thereof as may be necessary, in the following form," &c.: (here the form is given.)

The 24th section authorizes the courts, when there is a tie vote between two candidates, to elect one of them.

It is contended by the defendant in error, that the circuit court had no jurisdiction to award the writ of certiorari prayed for, and that, therefore, its refusal to do so was proper and should be affirmed by this Court.

It is very true that according to the common law the writ of certiorari issued only from a superior court to one of inferior jurisdiction, commanding the latter to certify to the former the record or proceedings in a particular case. 4 Minor's Inst. 300.

The general rule is, that upon such writ the superior court will only inquire into errors and defects which go to the jurisdiction of the inferior court. But if the inferior tribunal proceeds in a summary manner and not according to the course of the common law, and there is no remedy by appeal or writ of error, then the superior court will consider other than jurisdictional questions. Poe v. Machine Works, 24 W. Ya. 517; Dryden v. Swinhurn, 20 Id. 89.

By our statute this remedy is in express terms extended to proceedings before a county court, council of a city, town or village, justice or other inferior tribunal after judgment or final order in any case, except where the circuit court has authority to review such judgment or order on motion, or on appeal, writ of error or in some manner other than upon certiorari Sec. 2, chap. 153 Acts 1882, p. 488.

The third section of said statute directs that the...