Poteet v. County Commissioners.

• Decision Date: 29 June 1887
• Parties: Poteet v. County Commissioners.
• Court: West Virginia Supreme Court

30 W.Va. 58

Poteet

v.County Commissioners.

Supreme Court of Appeals of West Virginia.

Submitted June 18, 1887.

Decided June 29, 1887.

1. Mandamus.

The 15th section of chapter 5 of the Acts of 1881 provides, that the clerk of the County Court shall lay before said court at its next session after an election, wherein a vote has been taken on the relocation of a county-seat, the separate certificate of the precinct commissioners of the vote on this question at each precinct; and the law then provides:" The said court shall thereupon ascertain and declare the result of said vote and enter the same of record." Held:

Under this law any voter of the county has a right to appear and contest the validity of these returns and ask that the court go behind them and ascertain, what was the actual legal vote cast at such election for and against such re-location, and to demand, that the evidence, which he offers on this question be heard; and, if the court refuse to permit him to be heard, he has a right to demand of said court to settle and sign a bill of exceptions setting out the refusal of the court to permit him to be heard to introduce any evidence on the question before them. If the court refuse to settle and sign such bill of exceptions, the Circuit Court may by mandamus compel the County Court to do so and thus perfect the record, so that the action of said Court may be reviewed on a writ of certiorari by the Circuit Court. (pp. 70, 77.)

2. Bill of Exceptions.

The mode stated, in which a bill of exceptions should be settled, before it is signed. (pp. 89, 91, 94.)

3. Mandamus Return.

The return by a court to a mandamus nisi to show cause, why it should not be compelled to sign a bill of exceptions, that the bill did not state the facts truly, is conclusive. (pp. 89, 93.)

4. Mandamus.

Where a bill of exceptions is tendered, which does not fairly state the truth of the case, it is the duty of the court with the aid of the counsel to settle the bill, and when it is settled, to sign it; and if the court refuses to do this, mandamus will lie to compel it to do so. (p. 89.)

5. Mandamus.

When such mandamus is asked, it is not necessary generally to set out the bill of exceptions tendered and asked to be settled and signed. (p. 90.)

Statement of the case by Green, Judge:

J. E. Erwin and H. C. Poteet, voters, tax-payers and property-holders of the town of Barboursville, Cabell county, for themselves and all other voters, tax-payers and propertyholders of such town, who would join therein, on February 11, 1887, presented their petition to the judge of the Circuit Court of Cabell county praying a writ of mandamus against the commissioners of the County Court of said county, viz.: George W. Hackworth, president, and Thomas A. Bias and George W. Grobe, commissioners, requiring them to do justice to the petitioners in the premises stated in the petition and settle, sign and seal a certain bill of exceptions, a copy of which was filed with the petition, and make the same a part of the record in the case, matter and proceeding to ascertain and declare the true result of the election held in said county of Cabell on the 2d day of November, 1886, of the vote then taken upon the question of removal and relocation of the court-house and county-seat from the town of Barboursville to the city of Huntington in said county. The petition is very long, but I deem it necessary to state its contents only briefly or rather its material parts.

On November S, 1886, at a special session of said County Court the petitioners appeared and objected to returns of the election, which the officers of election at the several precincts had made to the clerk of said court, and which had by him been laid before said court, as false, and to the vote on this question as an undue election, and claimed, that a true return of the vote cast would show, that less than three fifths of the votes cast were cast for such re-location of the county-seat, and that illegal votes were fraudulently received in favor of such re-location, and assigned numerous other reasons for throwing out and not counting the votes professed to be cast at certain precincts. And on motion of the petitioners the said court after due examination and after hearing all the evidence offered by all parties rejected the vote cast at the Huntington precinct, which alone would have been sufficient to prevent at that election the re-loca tion of the county-seat at Huntington. But before the result of the vote on this question was declared, and while the court was receiving other evidence in reference to the vote at other precincts, the said court was stopped from all other proceedings in the matter by a writ of prohibition issued by the judge of the Circuit Court of said county. The petition then alleges, that at a regular term of said County Court held on January 10, 1887, the said court without the knowledge of the petitioners made an order declaring the result of the election in favor of re-location, and that the county-seat of said county was thenceforth located at the city of Huntington, there being, as said court in its order declared, 1, 944 votes for re-location and 832 against re-location. The petition also alleges, that the order was hastily and improvidently entered and was false and fraudulent. The petition states at length many facts to prove the fraudulent conduct of the commissioners in making this false entry. The only one I deem it necessary to mention is substantially as follows: On the morning of the 10th of January, 1887, the first day of the term, the president of the court told one of the petitioners, that the case would not be taken up till the arrival of the petitioners' counsel, who was expected to arrive and did arrive by that evening's train. Yet in violation of this promise without the knowledge of petitioners and in their absence the court had this order prepared by the counsel of those, who favor the re-location of the county-seat, and had it entered and without signing it adjourned to the 14th of January, though asked to suspend the decision and declaration of the result of said election till the arrival of said evening train.

The petition then alleges, that the court met on the 14th of January, 1887, and before the orders of the first day were read or signed, the petitioners appeared, by their counsel, and asked to correct the same by entering the motion to reconsider this entry and judgment in this election, of which notice had been given on the first day of the court; but the court refused, and the orders of the first day were signed, as they had been written up by the clerk, without being read. The motion to reconsider was then again made by the petitioners' counsel, who asked that it be entered on the order- book nunc pro tunc; but the court refused, the motion being resisted by the counsel, who had prepared the order asked to be reconsidered; and petitioners' counsel excepted. Petitioners' counsel then moved to set aside this order sustaining his motion by the affidavit of one of the petitioners, his own affidavit and the testimony of a witness in open court. At the request of the court this motion was reduced to writing, and the grounds, on which it was based, set forth in writing. But the court after a lengthy argument refused to enter this order or to reconsider the subject, or to consider the affidavits or evidence of the witness, who testified in open court.

To this action of the court the petitioners' counsel excepted and prepared a bill of exceptions setting out the rulings of the court on his motions, and the grounds on which said motions were based with the affidavits and evidence taken before the court to sustain said motions. This bill of exceptions the court refused to sign as well as any other bill of exceptions or to make any of these matters a matter of record, refusing at the same time to assign any reason for this refusal. The court also refused, when asked by petitioners' counsel, to point out any errors or supposed errors or omissions in the bill of exceptions prepared and tendered by the petitioners' counsel in order that, if any existed, the bill of exceptions might be amended. The said court also refused to enter on the record the petitioners' motion so made on January 14, 1887. The court would do nothing except on the 15th of January, 1887, make an order prepared by the opposing counsel simply and incorrectly stating, that J. II. Brown stated to the court, that he desired for your petitioners and others to move the court to reconsider its action of January 10th, 1887, which motion being objected to was overruled by the court, to which action the petitioners' counsel tendered a bill of exceptions, which the court refused to sign.

This bill of exceptions sets out more that twenty reasons, why the petitioners' motion to reconsider and set aside what was done on the 10th of January, 1887, should be sustained. But, while it set out, that the petitioners were prepared to prove the truth of the facts, which constituted these reasons, and offered then to do so, their truth was avouched only by the affidavits of one of the petitioners and of his counsel and by the oral testimony of one witness before the court. I deem it unnecessary to set out all the facts, which, this bill of exceptions alleges, the petitioners offered to prove in order to sustain their motion, or all the facts stated in the said affidavits. I will content myself with stating the following, viz.: The grossest frauds and irregularities were perpetrated at the election at Huntington, so far as the vote on the re-location of the county-seat was concerned; the polls were kept open till dark, and fifty eight votes were cast after sunset, all for the re-location of the county-seat at Huntington: forty five other illegal votes, all in favor of such re-location, were received at that precinct, the names of the thirty of the persons casting these votes being given, fifteen of whom were...