Fowler v. Thompson
| Citation | 22 W.Va. 106 |
| Parties | FOWLER v. THOMPSON. |
| Decision Date | 07 July 1883 |
| Court | West Virginia Supreme Court |
Submitted Jan. 19, 1883.
SNYDER JUDGE, Absent.[a1]
1. The county courts of this State, as they existed on the 12th day of October, 1880, notwithstanding the adoption of the amendment of article VIII. of the Constitution continued in existence with the limited jurisdiction prescribed by the 24th section of said amendment, until the 1st day of January 1881, after which day the said county courts were no longer composed of a " president and two justices of the peace," but of the three commissioners mentioned in the 22d section of said amendment. (p. 119.)
2. That until the said 1st day of January, 1881, the said county courts could rightfully exercise the limited jurisdiction, prescribed by said 24th section of said amendment, at the regular terms of said courts, in accordance with the laws then in force. (p. 116.)
3. The limited jurisdiction remaining vested in said courts, after the adoption of said amendment, on the 12th day of October 1880, included " all matters of probate, the appointment and qualification of personal representatives, guardians curators and all committees, and the settlement of their accounts, and all matters relating to apprentices; also the superintendence and administration of the internal police and fiscal affairs of their counties, including the establishment and regulation of roads, ways, bridges, public landings ferries and mills, with authority to lay and disburse the county levies; to grant licenses, for the sale of intoxicating liquors, in certain cases, and in all cases of contest, to judge of the election, qualification and returns of their own members, and of all county and district officers. " (p. 119.)
4. Sections 30, 31, 32 and 33, of the acts of the Legislature, 1872-73 prescribing the time and manner in which the election of county and district officers might be contested, not being repugnant to the provisions of said amendment, continued in full force and effect, after the adoption thereof, (p. 116.)
5. The appellee having within the time and in the manner prescribed by law given to the applicant notice that he would contest his election to the office of prosecuting attorney for the county of S. and said appellant having in like manner given to said appellee the counter notice prescribed by law, both parties appeared before the county court of said county of S. at the November term thereof, 1880, and on their several motions the said notice of contest and counter notice were docketed in said court, and by operation of law continued; and no other term of said court being held until the 18th of January, 1881 when the county commissioners held their first term of said court, at which no proceedings in said contest were had; the said parties appeared at the March term thereof, 1881, and contestant moved the court to proceed with the trial thereof, which the court refused to do on the ground that at the said November term the county court had ceased to exist, and for that cause no contest was pending which could be tried at said March term, and the circuit court of said county, having upon a writ of certiorari reversed the said judgment of said court and remained the cause to be further proceeded in according to law. HELD:
That there was no error in the said judgment of said circuit court, and that the cause was rightfully remanded. (p. 119.)
6. In the case of a contested election of a county or district officer, or of any or all of the comissioners composing the county court, the proper mode of bringing the proceedings before the circuit court for review, is by writ of certiorari, upon the hearing of which the circuit court, if there be no error, will affirm the same, but if they be erroneous, will reverse the judgment and remand the cause to the county caurt for further proceedings. (p. 120.)
7. A case in which the doctrine in regard to the proceeding upon a writ of certiorari, in the case of a contested election--as laid down in Dryden v. Swinburne, 15 W.Va. p. 234, and in Swinburne v. Smith, Judge, & c., Ibid. p. 482--is approved and reaffirmed. (p. 120.)
WOODS, JUDGE, furnishes the following statement of the case:
At the general election on the 12th day of October, 1880, in Summers county, Elbert Fowler, William R. Thompson, and J. W. Malcom were candidates, and were voted for for the office of prosecuting attorney of said county. On the 19th day of October, 1880, the commissioners conducting said election at the court house of said county, made and delivered to said Thompson a certificate of the result of said election for the office aforesaid, whereby it appeared, that at said election for said office of prosecuting attorney, said Wm. R. Thompson received six hundred and seventy-three votes, said Elbert Fowler received six hundred and forty votes, and said J. W. Malcolm received three hundred and eighty seven votes. On the 28th day of October, 1880, the said Fowler prepared and caused to be served upon the said Thompson a notice, that for the causes therein stated, he would contest his said election, which notice afterwards on the same day was filed in the clerk's office of the county court of said county and the filing thereof, was by the clerk of said court endorsed thereon.
On the 5th day of November, 1880, the said Thompson prepared and caused to be served on the said Fowler, a counter notice, denying contestant's right, and alleging, that for the causes therein stated he would maintain his right to the said office, which last notice, was on that day returned to, and in like manner filed in said clerk's office, and endorsed by said clerk.
At the November term, 1880, of the county court of said county, the said Fowler appeared in said court, and on his motion the court entered an order docketing said notice of contest, and the said Thompson also appeared, and on his motion his said counter notice was in like manner filed and docketed, but no further proceedings were had thereon, at that term, and it does not appear that any other term of said court was held in said county during that year. On the 18th day of January, 1881, being the third Tuesday in that month, two of the commissioners elected under the twenty-second section of article eight of the constitutional amendment adopted on the 12th of October, 1880, held the first term of the county court of said county, after the adoption of said amendment, but no proceedings were then had upon said contested election, but the said county court at that term transacted other business within its jurisdiction, and among other things, it fixed upon, by an order entered upon its record, the times for holding the four regular terms thereof prescribed by said twenty-second section of article eight of said amendment; and thereby ordered that said regular terms of said county court should be held on the third Tuesday in January, March, July and November in each year until otherwise ordered.
At the March term of said county court, 1881, the said Fowler and Thompson again appeared, and upon the production of said notice of contest, and said counter notice and the said order made in regard thereto at said November term, and moved the court to proceed with the trial thereof, which motion was resisted by the said Thompson on the ground that there was no such cause in said court, that the same had never been docketed therein, and that the order made in said county court in regard thereto at said November term, was a nullity, as at that time there was no such body as the county court of Summers county composed of justices, that the same had been abolished by the adoption of said constitutional amendment, which motion to try said cause the court for the reason aforesaid, overruled, to which ruling of said court, the said Fowler excepted.
On the same day--after said county court had for the cause aforesaid refused to take up and hear said contested election,--the said Fowler, again produced and tendered in said court, his said notice of contest and all the papers accompanying the same, being the same papers referred to in his first bill of exceptions, together with the proof of the service and filing thereof, and moved the said court to docket his said notice of contest in said court, and proceed with the trial thereof, which last motion being resisted by the said Thompson, the court overruled and refused to docket or try the said contest, to which last ruling Fowler again excepted. A third bill of exceptions was taken by said Fowler to the judgment of said court overruling his motion to continue the trial of his said contest until the next term of said court, as one of the county commissioners was absent, and the two then present holding said court were divided in opinion as to what judgment should be rendered on his said several motions overruled as aforesaid.
The said Fowler on the 22d April, 1881, applied for and obtained from Hon. H. Holt, judge of the circuit court of Summers county, a writ of certiorari to the said judgment of said county court. Upon the hearing of said writ, the circuit court of Summers county reversed the said judgment of said county court with costs, and remanded the cause to the said county court for further proceedings therein to be had according to law.
From this judgment of said circuit court, the defendant Thompson obtained a writ of error to this Court.
James H. Ferguson for contestant.
E. W. Wilson for contestee:
I. There can be no statutory contest in this case, because there was no organized county court existing in which a contest could be instituted, within the time prescribed by § 32, ch 118, Acts 1872-3, to-wit: Within sixty days from the declaration of the result of the election--the time allowed...
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