McWhorter v. Dorr et al.
| Decision Date | 25 April 1905 |
| Citation | 57 W.Va. 608 |
| Court | West Virginia Supreme Court |
| Parties | McWhorter v. Dorr et al. |
The writ of prohibition does not lie from this Court to prevent a member of a special tribunal constituted under the authority of section 15, of chapter 0, of the Code, from acting inthe hearing and determination of an election contest before such tribunal, upon petition filed by a party to such contest, recusing such member, (p. 610.)
A special tribunal constituted under authority of section 15, of chapter 6, of the Code, is a subordinate legislative tribunal and not a part of the judicial department of the State, (p. 613.)
Petition by J. C. McWhorter for a writ of prohibition to C. P. Dorr,.judge, and J. B. Morrison..
Refused.
W. W. Brannon, W. G. Bennett, and L. If. Kelly, for petitioner.
Alex. Dulin, for respondents.
This is a petition in prohibition by J. C. McWhorter, recusing C. P. Dorr, a member of a special tribunal constituted by authority of section 15, of chapter 6, of the Code, to hear and determine a contest as to the election of a Judge of the Twelfth Judicial Circuit of West Virginia, (which election was held on the 8th clay of November, 1904), and praying for a writ of prohibition against Dorr, preventing him from acting as a member of such tribunal. The petition alleges in effect that J. C. McWhorter and J. B. Morrison were opposing candidates for judge of said circuit at said election; that McWhorter received a majority of the votes cast in said circuit; that within the time prescribed by law Morrison gave notice of contest; that within the time prescribed by law McWhorter gave a return notice; that Morrison filed before the Governor a petition; that a special tribunal under section 15 of chapter 6 of the Code, was constituted by the selection of Hon. C. P. Dorr by Morrison, Hon. C. W. Dailey by McWhorter, and Hon. T. P. Jacobs by the Governor; that the time and place of meeting were appointed; that said tribunal has not acted in the hearing and determination of such contest; that petitioner appeared before said tribunal and objected to Dorr acting as a member thereof upon the ground that Dorr was attorney for Morrison in said contest, and that he had been attorney and counsel for Morrison in the preparation of the notice of contest; and on the ground that Dorr was a partisan of Morrison; and that Dorr as a member of such tribunal, would be obliged to joass upon evidence involving his actions and relations with Morrison preceding and subsequent to said election, and upon other grounds fully set out in the petition, all of which grounds are relied on here.
This Court has original jurisdiction in cases of prohibition. The writ goes against a judicial tribunal and against judicial action. W. & W. Railway Co. v. The Pinnacle Coal Co., 44 W. Va. 574. The writ lies to restrain a judge of a court from proceeding in a cause in which he is disqualified by reason of interest..Forest Coal Co. v. Doolittle, Judge, etal, 54 W. Va. 210.
The first question presented is, whether or not a special tribunal constituted under section 15 of chapter 6 of the Code, is a court, and part of the judicial department of the State. If it is not, prohibition does not lie. It is contended by petitioner that such special tribunal is an inferior judicial tribunal within the meaning of section 1 of art. 8 of the Constitution, which provides that: "The judicial power of the State shall be vested in a Supreme Court of Appeals, in circuit courts and the Judges thereof, in such inferior tribunals as are herein authorized and in Justices of the peace."
Section 11 of article 4 of the Constitution provides: "The Legislature shall prescribe the manner of conducting and making returns of elections and of determining contested elections; and shall pass such laws as may be necessary and proper to prevent intimidation, disorder or violence at the polls, and corruption or fraud in voting, counting the votes, ascertaining or declaring the result, or fraud in any manner upon the ballot."
Under this section, the Legislature has power to confer upon the courts, or upon quasi judicial tribunals, or upon inferior legislative tribunals, or may itself retain jurisdiction to bear and determine election contests. Where jurisdiction to hear and determine election contests has been conferred upon the courts or other permanent tribunals of the State, all rights of appeal from or review of the action of such courts or permanent tribunals, existing at common law or conferred by statute as to other matters determined by such courts or permanent tribunals, follow and apply to election contests determined by them. Such is the force and effect of our decisions. See Cunningham v. Squires, 2 W. Va. 422, allowing certiorari from the decision of the board of supervisors under the old Constitution; the cases of Dry den v. Swinbum, 15 W. Ya. 234, and Swinbum v. Smith, Judge, etc., 15 W. Ya. 483, allowing certiorari from the decision of the county court under the new Constitution; and State ex rel Thompson et al, v. McCallister, Mayor, 38 W. Ya. 485, allowing certiorari from action of a municipal council under section 2 of chapter 110 of the Code.
Where the jurisdiction to hear and determine an election contest has been conferred upon the legislative branch of the Government, the courts have no power to review its action. Goff v. Wilson, 32 W. Ya. 393. and cases there cited. Many others might be cited. These cases, however, aid us but little in determining the characrer and nature of the special tribunal authorized by section 15 of chapter' 6 of the Code.
Mr. Paine in Ms work on elections, section 793, says:
There is abundant authority holding that primarily, elections belong to the political branch of the Government and are beyond the control of the judicial power, except when authorized by Constitution or by statute. 15 Cyc. 394; Cold- well v. Barrett, 73 Ga. 604; Dickey v. Reed, 78 111. 261; Clarke v. Rogers, 81 Ky. 43; State v. Second Judicial Dist. Ct., 13 La. Ann. 89; Williamson v. Lane, 52 Texas. 335.
"In the absence of special statutory authority, the courts are without jurisdiction retione materiae to entertain cases of contested elections." 1.5 Cyc. 394, note66, and Const. Co. v. Police Jury, 44 La. Ann. 863; State v. Police Jury, 41 La. Ann. 846; State v. Judges Civil Dist. Ct., 40 La. Ann. 598; Fowler v. Gable, 3 Pa. Dist. 23.
"It has been held that where a specific mode of contesting elections has been provided by statute that mode alone can be resorted to; and that where a mode of contest has been provided in a city charter for contesting the election of city officers, before a statutory tribunal, it excludes any other remedy and takes from the courts all supervisory power over such contest." 15 Cyc. 395, and the many authorities cited in notes 74 and 75.
The language of section 15 of chapter 6 of the Code, authorizing the special tribunal in question, is as follows: ...
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