Goff v. Judge
| Citation | 32 W.Va. 393 |
| Parties | Goff v. Wilson.*(Green. Judge, absent) |
| Decision Date | 12 March 1889 |
| Court | Supreme Court of West Virginia |
Elections Governor--Mandamus.
When neither the speaker of the house of delegates nor the joint assembly of both houses of the legislature convened under section 3 of article VII of the constitution of this state for the purpose of opening and publishing the returns of the election for the office of governor does in fact open and publish the returns in respeet to said office or declare any person elected to that office, this Court can not by mandamus adjudge the person, who appears from the returns certified to the speaker of the house to have received the highest number of votes for that office, to be the governor and compel the person, who was the governor during the preceding term to deliver the office and its insignia to him.
W. P. Hubbard, J. A. Hutchinson and A. Burlew for petitioner.
J. W. St. Clair, E. W. Wilson in pro per. and Attorney-General Alfred Caldwell for respondent.
Snyder, President:
On March 7, 1889, Nathan Goff presented his petition to this Court, then in session, in which the petitioner avers in substance as follows: that at the general election held in this State on November 6, 1888, he was voted for and elected by the qualified voters to the office of Governor of the state for the term commencing on March 4, 1889; that the commissioners of the respective county courts ascertained the result of said election in their several counties in respect to the office of governor in the manner prescribed by law and made out and signed certificates, which they transmitted in due form of law to the Seeretary of State, in sealed envelopes directed to the speaker of the house of delegates; that the Secretary of State delivered said certificates to the speaker of the house as required by law; that said certificates contained the result of said election for the auditor and other executive officers as well as for governor, and all of said county certificates were inclosed in one envelope; that the speaker of the house in the presence of a majority of each house assembled in the house of delegates for that purpose opened the envelopes containing all the said certificates and returns, and as to the aforesaid officers, other than governor, published the same, and as to the office of governor the said certificates and returns, after they had been opened as aforesaid, were delivered to a committee of the legislature appointed under the statute relating to contests for governor to report upon the same; that the said certificates and returns with respect to the office of governor showed, that for said office petitioner received at said election 78, 714 votes, A. B. Fleming received 78, 604 votes, and all other persons together received for said office less than 5, 000 votes, thereby showing that petitioner had re-' ceived a plurality of all the votes cast for said office at said election; that said A. B. Fleming had caused a notice of contest for the office of governor to be given to petitioner, and he in turn had a counter-notice given to said Fleming, both of which notices had been served and were on January 17, 1889, presented to the legislature and printed at large upon the journal of the house of delegates, which notices as well as the journals of the senate and house of delegates, so far as the same show the action had with respect to ascertaining the result of said election and in the matter of said contest for the office of governor, are made parts of the petition; that on March 4, 1889, petitioner took the oath of office of governor in the manner prescribed by law, and on the afternoon of that day he went to the governor's office in the state capitol, where he found E. W. Wilson, who had been elected governor at the election held in 1884, and had held said office for four years ending on said 4th day of March, 1889, and still had in his possession the property and insignia of said office, and demanded of him the possession of said office and the property and insignia of, belonging, and pertaining thereto, but the said Wilson refused to surrender and deliver such possession to petitioner, and held and still holds and detains the said office, property, and insignia against the right and demand of petitioner and do clares, that he will continue to do so.
Petitioner insists that he was elected to the office of governor; that neither the speaker of the house, the two houses of the Legislature, nor either of them, did or would declare him elected, but wholly failed and refused to do so, or to declare any one elected to said office; and that such failure to make such declaration can not affect his right to said office. Petitioner therefore prays for the writ of 'mandamus against said E. W. Wilson, to require him to show cause why ho should not be compelled to surrender to petitioner said office, and all the property and insignia belonging thereto etc.
Upon the presentation of said petition the defendant, E. W. Wilson, appeared in court, and waived process, and demurred to and moved to quash said petition, which it was agreed by the parties should be treated as an alternative writ; and it was further agreed that the case should be heard upon said petition, demurrer, and motion to quash without further pleadings, and determined upon its merits, without regard to merely technical objections or questions. The case was afterwards fully argued and submitted to the court.
It appears from the journal of the house of delegates, which is made a part of the aforesaid petition, that the 39b
following resolutions were adopted by the joint vote of the two houses of the legislature assembled in the house of delegates forthe purpose of complying with section 3 of article VII of the constitution of this state, relative to the turns of the election for state officers, held November 6, 1888:
It further appears, that a joint committee of the two houses was appointed to examine and report upon the contest between Fleming and Goff for the office of governor, and all the returns and papers relating thereto were referred to said committee. It further appears upon said journal that on January 4, 1889, an order was made by the Circuit Court of Kanawha county superseding the certificate of the commissioners of the County Court of Kanawha county ascertaining the result of the election for the office of governor, held on November 6, 1888, in said county. Other facts appearing upon said journal may be hereinafter referred to, so far as they may be found material to the matters under consideration.
It is conceded, and it is unquestionably true, that, that if the petitioner is entitled to the office of governor, he may obtain it by mandamus. Den) v. Judges, 3 Hen. & M. 1; Conlin v. Aldrich, 98 Mass. 557; Harwood v. Marshall, 9 Md, 83; Bridges v. Shallcross, 6 W. Va. 562. The second and third sections of article VII of our constitution are as follows:
The first section of the same article provides, that the terms of said officers "shall be four years and shall commence on the 4th day of March next after their election," and by section 7 of article IV of the same constitution it was provided that "the general elections of state and county officers and of members of the legislature' shall be held on the second Tuesday of October until otherwise provided by law." The time fixed for the commencement of the sessions of the legislature is the second Wednesday of January every two years.
Under the aforesaid provision of the constitution in respect to contesting the election for the office of governor the legislature at its session in 1873 passed an act providing that, if the election of governor, treasurer, auditor etc. be contested, the contestant must give notice...
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Goff v. Wilson
......Chapter 6, Code. In this condition of the law the legislature, when it assembled in January last, and found that there was a contest pending between Gen. Goff and Judge Fleming for the office of governor, were confronted with this very grave and serious question: Was it their duty to declare either of the claimants elected to the office of governor Until after the contest could be decided? If they, or the speaker of the house, should at the commencement of the ......