Fleming v. Comm'rs
Decision Date | 28 November 1888 |
Citation | 8 S.E. 267,31 W.Va. 608 |
Court | West Virginia Supreme Court |
Parties | Fleming v. Commissioners. |
The writ of prohibition lies from a superior court, not only to inferior judicial tribunals properly and technically denominated such, but also to inferior ministerial tribunals, possessing incidentally judicial powers, such as are known in the law as quasi judicial tribunals, and even, in extreme cases, to purely ministerial bodies, when they attempt to usurp judicial functions.
The supreme court of appeals has concurrent original jurisdiction with the circuit courts in all cases of habeas corpus, mandamus, and prohibition.
By a rule adopted by the supreme court of appeals in this state, it will not take such original jurisdiction, unless special reasons appear therefor; but, when such reasons are made to appear, it will, without hesitation, exercise its jurisdiction.
Prohibition lies only in case of the unlawful exercise of judicial functions. Acts of a mere ministerial, administrative, or executive character do not fall within its province.
While many of the acts of the commissioners, while sitting as a board of canvassers, after an election, are merely ministerial, they are not all so; and where such tribunal, clothed by the statute with both ministerial and judicial powers, is merely exercising its ministerial functions, to its action in such matters prohibition will not lie; but when it is exercising its judicial functions, and is proceeding in excess of its judicial powers, or is usurping judicial powers which do not belong to it, to such action a writ of prohibition will lie.
Mere errors and irregularities of such commissioners, while proceeding within their jurisdiction, are not subject to prohibition.
Where commissioners were assembled, under our statute, in special session, after an election, to canvass the votes cast, and the question was presented to them whether the precinct commissioners, canvassers, and clerks at a certain voting place were sworn, such question was a judicial one, within their jurisdiction, and, whether on the evidence before them they decided rightly or wrongly, could not be the basis for an application for a writ of prohibition.
(Syllabus by the Court.)
Application for a writ of prohibition.
Petition by A. B. Fleming for a writ to issue prohibiting the commissioners of the county court of Kanawha county from counting the votes cast at Lewiston precinct, in an election for governor of the state.
J. W. St. Clair and Brown & Jackson, for petitioner, J. A. Hutchinson, S. C. Burdett, and Abr. Burlew, for respondents.
Johnson, P. On the 28th day of November, 1888, A. B. Fleming tendered to the court the following petition: "Your petitioner, A. B. Fleming, respectfully states that he is of the age of forty-nine years, and is a citizen and resident of the county of Marion and state of West Virginia, and has been a citizen and resident of said county continuously for more than ten years last past. That on Tuesday, the 6th day of November, 1888, pursuant to law, a general election by the people was held throughout the state of West Virginia, for the purpose of electing, among other officers, a governor of said state. That at said general election, held as aforesaid, your petitioner was a candidate for election by the people to the said office of governor, and was then and there the nominee for said office of that political organization known as the 'Democratic Party, 'and as such candidate received in every county of the state a large number of votes for said office of governor. That at said general election one Nathan Goff was a candidate for election by the people to said office of governor, and was then and there the nominee for said office of that political organization known as the 'Republican Party, ' and as such candidate received in every county of this state a large number of votes for said office of governor; and that, by reason of the fact that a recount is being had in three of the counties of this state, it does not yet appear who has been elected to said office of governor, but from the known strength of said political parties in this state, and from the returns already certified in the various counties of the state, enough appears to make it certain that either your petitioner or the said Nathan Goff has been elected to the said office of governor, but that, as between your petitioner and the said Goff, the plurality will be very small, and cannot be ascertained until the said recount now being had in said three counties is completed. That among other counties in the state said general election was held in the county of Kanawha. That among the voting precincts established pursuant to law in said Kanawha county was one at Lewiston. That the commissioners of election duly appointed for said Lewiston voting precinct at said general election were F. G. McConihay, James Coleman, and L. E. Kinsolving. That said commissioners of electioncertified that at said Lewiston voting precinct, at said general election, the number of votes cast for the said Goff and your petitioner, respectively, for said office of governor, were as follows: For said Goff, ninety votes, and for your petitioner, seventy-nine votes. That afterwards, when the commissioners of the county court of said Kanawha county met pursuant to law, in special session, to ascertain the result of said election held in said county, your petitioner demanded of said commissioners a recount of the ballots cast in said county at said election, and said commissioners proceeded to make such recount, and are now engaged in making the same. That the poll-books of said Lewiston precinct, as returned by said commissioners of election, failed to show that the said commissioners of election were sworn for the discharge of their duties in the manner prescribed by law, and that the only evidence in said poll-books relating to such oath, or attempted oath, on their part, is set forth in a certified copy thereof, hereto attached and made part hereof, marked 'Exhibit A, ' and as a matter of fact your petitioner avers that all of said commissioners were not sworn for the discharge of their said duties, as required by law, to-wit, neither the said E. G. McConihay nor the said James Coleman were so sworn. And your petitioner thereupon demanded of the said commissioners of the county court that they should reject all the votes cast at said Lewiston precinct, but the said commissioners, without having any evidence to show that either the said McConihay or the said Coleman were sworn as required by law, other than that contained as aforesaid in said poll-books, decided that they would count the votes cast at said Lewiston precinct, and refused to reject the same. Your petitioner shows that for the said commissioners to count the votes of said Lewiston precinct, as they have decided they will do, is a plain and palpable violation of the statute of the state, and a gross usurpation of power, and a violation of the rights of your petitioner, and to his manifest prejudice and injury. Your petitioner, therefore, prays this honorable court that a writ of prohibition issue, prohibiting the said commissioners of the county court of Kanawha county from proceeding to count the votes cast at said Lewiston precinct as aforesaid. And as in duty bound he will ever pray, " etc.
The petition was signed and sworn to. Exhibit A, referred to in the petition, and made part thereof, is as follows:
Then, as a part of Exhibit A, follows the oath of the two clerks, signed by them, with the following jurat attached thereto:
The commissioners of the county court of Kanawha county appeared in court to said petition, and demurrer thereto, in which demurrer the petitioner joined. It is insisted by the demurrant that prohibition will in no case lie to interfere with the commissioners of a county assembled in special session, under the statute, to ascertain the result of an election held in the county. In 8 Bac. Abr. 206, under the head "Prohibition, " it is said: ...
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