Submitted
November 28, 1888.
Syllabus
by the Court.
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.
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 election
certified 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 pur suant 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 F.
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:
"OATH
OF COMMISSIONERS.
"
State of West Virginia, County of Kanawha--sct.:
We, F. G. McConihay, James Coleman, and Louie Kinsolving,
do solemnly swear that we will support the
Constitution of the United States, and the constitution of
this state, and that in the election about to be held we
will faithfully and impartially discharge the duties of our
appointment to the best of our skill and judgment. So help
us God.
"F
G. McCONIHAY,
JAMES
COLEMAN,
L. E.
KINSOLVING,
Commissioners.
"Sworn
to and subscribed before me this 6th day of Nov., 1888.
"___,
In and
for Kanawha county."
Then,
as a part of Exhibit A, follows the oath of the two clerks,
signed by them, with the following jurat attached thereto:
"Sworn
to and subscribed before me this 6th day of November, 1888.
"F.
G. McCONIHAY,
In and
for Kanawha county."
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: "As all external
jurisdiction, whether ecclesiastical or civil, is derived
from the crown, and the administration of justice is
committed to a great variety of courts, hence it hath been
the care of the crown that these courts keep within the
limits and bounds of their several jurisdictions prescribed
them by the laws and statutes of the realm; and for this
purpose the writ of prohibition was framed, which issues out
of the superior courts of common law to restrain the inferior
courts, whether such courts be temporal, ecclesiastical,
maritime, military, etc., upon a suggestion that the
cognizance of the matter belongs, not to such courts and, in
case they exceed their jurisdiction, the
officer who executes the sentence, and in some cases the
judges that give it, are in such superior courts punishable,
sometimes at the suit of the king, sometimes at the suit of
the party, sometimes at the suit of both, according to the
nature of the case. The object...
