Dr fden v. Swinburne.

• Decision Date: 08 July 1882
• Citation: 20 W.Va. 89
• Parties: Dr fden v. Swinburne.
• Court: West Virginia Supreme Court

20 W.Va. 89

Dr fden

v.Swinburne.

Supreme Court of Appeals of West Virginia.

Submitted Janm ry 14, 1882.

Decided July 8, 1882.

*(Sxwder, Judge, Absent.)

1. A case being brought b tfore a circuit court by a writ of certiorari

for review, it should review not only jurisdictional questions

and questions of irr(gularity in tlie proceedings of the inferior tribunal also but all questions of law and all actions alleged to be based on erroneous principles or taken in the absence of all evidence to justify such action, (p. 107.)

2. It is therefore the duty of the inferior tribunal to make a part of

its record, if asked by any party, all the facts necessary to enable the court to see, upon what principles of law it has based its action, or whether there was any evidence to justify its action. And all the rulings and decisions of all law questions in the case and all the facts necessary to the proper understanding of all such rulings and decisions of such inferior tribunal; and if it refuses to do so, the circuit court may by mandamus compel it to perform this duty. (p. 110.)

3. This duty of the inferior tribunal is conveniently performed by signing, sealing and making a part of its record bills of exceptions in the usual manner; and though not required by the statute to perform this duty by signing bills of exceptions, yet if it does so, such bills of exceptions will be regarded by the appellate court as parts of the record, as in other appellate proceedings, (p. 113.)

4. In a contest about an office before the county court or other inferior tribunal, the decision of such tribunal may be reviewed by the circuit court by a writ of certiorari; and the decision of the circuit court may be reviewed by the Supreme Court of Appeals by writ of error. Sec. 15 W. Va. 234 and 483. (p. 105.)

5. The law requires, that an alien should be naturalized in a court of record, and his admission to citizenship must be a judgment of such court; and therefore if it is claimed in any case, that an alien has been naturalized in a certain court, and it be shown, that if naturalized at all, he was naturalized in that court, and the records of such court are produced, and an examination of them shows, that no entry was made on the records of such court naturalizing such alien, it can not be proven by parol evidence, that lie was admitted to citizenship in such court, but that by inadvertence or for any other reason there was no entry made of it; nor can the citizenship of an alien under such circumstances be presumed by proof of his having held real estate or of his having voted or held office, or by other circumstances, (p. 121.)

6. By section 2172 of the Revised Statues of the United States if a father be naturalized, while the son is under the age of twentyone years, and while the son is residing in the United States, the son will be considered a citizen of the United States;* but if at the time of the naturalization of the father the son is over twenty-one years of age, such son cannot be considered a citizen though the father was naturalized prior to the first day of December, 1873, when said Revised Statutes of the United States went into operation, (p. 128.)

7. No court has any power or authority in naturalizing an alien to declare in its order, 1 hat such alien shall be held to be a citizen from a time precedir. g the making of the order; and if it makes such declaration its ict is unauthorized and void, so far as this declaration is concer led and he is a citizen only from the time when such order was made. (p. 134.)

8. Chapter 7 section 5 of;he Code of West Virginia declares, that any person holding offlce or expecting to hold any office, who sells the same or lets it to farm or contracts to do so, as well as the person, who buy i the same or takes it to farm or contracts to do so, shall be thereby disabled from holding such office. The true meaning of this section is, that the parties are disabled from holding the ter: n of office, the whole or any part of which was thus sold or coi itracted to be sold, whether this term. of office be an existing me or a future term of office not then in existence; but it is (nly the term of office, for which the contract is made, that tl ese parties are disabled from holding; and neither of said partii s is rendered ineligible to hold such office at any future time, u iless the contract is to sell or farm a future term of office in whol 3 or in part, and then.he is rendered ineligible to this office only: or the term included in the contract, (p 136.)

9. If an alien and a citis en eligible to office are candidates for the same., and the alien] eceives a majority of the votes cast at the election, though sue. i alien be declared ineligible to the office upon a contest betwe sn them, the citizen, who receives a minority of the votes cast, cannot be declared entitled to the office; but it must be held to be vacant, (p. 137.)

Writ of error and suversedeas to a judgment of the circuit court of the county oi Kanawha, rendered on the 19th day of December, 1879, in a contested election case, wherein John Dryden was plaii ttiff, and Thomas Swinburne wras defendant, allowed upon the petition of said Dryden.

Hon. Joseph Smith, judge of the'seventh judicial circuit, rendered the judgment complained of.

Green, Judge, furnishes the following statement of the case:

This case is a confer Tor the office of clerk of the circuit court of Kanawha.: The contest was first heard in the county court of Kanawha at the November term, 1878; and the court dismissed the cas 3, "which was instituted by John Dryden to contest the righ; of John Swinburne to hold this office, the dismissal being based on the ground, that the court had no jurisdiction to hear the case and decide the controversy. The cause was then taken by certiorari to the circuit court of Kanawha county. It reversed the county court and proceeded to try the case ale nova and decided upon the evidence adduced before it, that Swinburne was an alien at the date of his election and could not hold the office. The case was then brought to this Court by a writ of error and supersedeas; and the judgment of the circuit court, so far as it reversed the county court, was sustained; but so far as it undertook to hear the case de nova and decide the same, it was reversed, and it was directed to remand the case to the county court of Kanawha for trial. These matters are all set out at large in the opinion rendered by this Court, in Dryden v. Swinburne, 15 W. Va. 234, to which reference is made for a full detail oi the case and all the proceedings in it prior to its being remanded to the county court for trial. After it was remanded to the county court, it was again tried on its merits, and it was decided, that Swinburne was legally entitled to hold the office. This decision was rendered on the 12th day of September, 1879. The judge of the circuit court of Kanawha awarded a writ of error and supersedeas to this judgment. This court then awarded a writ of prohibition forbidding said circuit court to proceed further in this case on the writ of error, upon the ground that the granting of a writ of error and supersedeas in this case by the circuit court was an act done without authority, and that it could accmire jurisdiction in the case only by a writ of certiorari. These proceedings are set out at length in the case of Swinburne v. Smith, Judge, c, 15 West Ya. 483.

The circuit court of Kanawha then awarded a writ of certorari to bring into this Court the record in the proceedings in this case based on a notice to contest this election. The proceedings on this certorari was commenced on Nov. 29th, 1879, when John Dryden presented his petition in said circuit court verified by affidavits praying for a writ of certiorari to bring into this Court the record of this case; and a rule wTas awarded him against Thomas Swinburne to show cause why this wTrit of certiorari should not be issued.

This petition alleged, that there was error in the judgment of the circuit court rendered on. Sept. 12th, 1879, which deci- cled, that at the time of the election, and when he received his certificate of election a 3 the clerk of the circuit court of Kanawha, Thomas Swinburne was and still is a citizen of the United States of Amei ica and of the state of West Virginia, and entitled to vote n said state, and was eligible to be elected to and hold f lis office, and that he was duly elected to said office and was entitled to hold the same. As errors in said judgment this petition alleges, that it was clearly proven in the trial, tl at Swinburne at the time of the election was an alien and i leligible to hold this office; and that the record showed, the evidence, that he wras such alien, was decisive, and then was in the trial of the case no contrary or conflicting evidence, as clearly appears on the face of the record; Swinbu me appeared to this rule and moved to quash the same, wdiic i motion the court overruled; and thereupon Swinburne filed his answer to the rule supported by his affidavit, and i; was by Dryden replied to generally.

This answer denies 1 he allegations of the petition and asserts, that he was at th 3 time of the election a citizen of this state, as the record in 1 he case and the judgment of said court shows, and was duly e ected to said office and legally entitled to hold the same; and it further asserts, that Dryden was not elected to this offic e, but that he was and still is disqualified from holding this)ffice or being elected thereto, as the record would show; and therefore as the writ of certiorari is not a matter of right b it purely a matter of discretion and can only be properly a varded to promote justice and right, he prays, that it may r ot be awarded. But the court awarded the writ as prayed for upon Dryden executing a bond with good security in 1 he penalty of two hundred dollars before the clerk of said circuit court conditioned to pay all damages, costs and fees,...