Spirit of Jefferson. [volume] (Charles Town, Va. [W. Va.]) 1844-1948, 1869-01-12
The State en rel @. E. Stubs vs.. The
Board Of Supervisors, and E. W.
Andrews,

| the following curtalleu report OF the argu"
ment made in this interesting case, by John
w Kennedy, Esq, counsel for Major An
drews -
Mr.- Kennedy opened by -alIuding -tazthe
extreme desire manifested by the Hon Chas
James Faulkner and Mr.. Blackburn Counsel
for the relator) to press the court to an i'm
mediate decision of this, and the other man
damus case-Chase VS.. Entler-at the very
opening of the present session. 1t did not
come with good grace from these distin-
rguished counsel to urge the court, as they
had done, to issue peren,ptory mardamus
in Chase vs. Entler without giving the Su-
! pervisors time to meet, after the case had
| been docketed, and make a return to the
Rule. That case had been decided without
the Supervisors having had time to meet and
prepare their answer, Notwithstanding the
| urgent prayer of the counsel for one of the
| defendants in this case for only six days de-
lay, within which time the Board would meet
| by law, when both Gases could be heard to-
gether. Nor would he soon forget the lan-
gu, ge of His Honor n refusing these pray
ers. ''If the Board did not feel sufficient in.
terest in these cases 10 have call meeting,
ne would not ueiuy the matter Que day to
suit their convenience"
This was not The policy of these learned
precisely simiar-Kenne VS.. The Board Of
Registration-when u mandamus was prayed
for to compel the BOard to register the name
of ciIlzeu entitled To vote, whOse name had
been illegally and maliciously stricken from
the list of registered voters.
Mr.. K. said he was the petitioner in that
case and urged this court, term after term,
for two long years, to grant peremtory
mandamus; and although the Board had
never made any return to the MandanIus
Nisi, and the bill was by law taken pro con-
fesso, these same counsel who are now SO
anxious for speedy decision used all their
learning, and influence with the court, to
defeat the right of a citizen, entitled to vote
under the constitution and laws, to exercise
the right of suffrage. Considering the antece-
dents of one of the learned counsel-Mr.
Faulkner.-this demand for immediate action
did not come we'll from him.
Nor did the decision of your Honor in my
case tally with that of your Honor rendered
a week since in Chase vs. Enter.
In Kennedy VS.. the Registrars your Honor
decided that, inasnuch as the Legislature by
act had made the action of the Board of Regis
tration final, this court could not compel them
by mandamus, or any other process, to change
their decision, and dismissed the petition.
In the cases at Bar. the constitution and
the act of assembly had made the Supervisors
"Mc judges Of the election, qualification and
returns OF their own members, and of all
county and township oficers;" and, ir the case
OF Chase vs.. Eutler, after the Board had
actually decided that Entler was elected, and
issued to him certificate of the fact, your
Honor has ordered peremptory mandamus,
requiring them to reUeTSe their decision, and
give the certificate to has opponent, Mr. Chase.
One thing is certain, if the court was right
in Kennedy VS.. the Board of Registration, it
was wrong in Chase vs. Entler, and vice versa.
The case VS.. Andrews has the same marked
features. The Supervisors have, in the exer-
else of their discretion, declared that he was
elected, and granted him certificate oc the
fact. And your Honor is asked to follow
your decision in Chase vs.. Entler, and COM
mand the Supervisors to reverse their deci-
sion, and give Mr.. Stubbs the certificate.
MIR. K. felt much reluctance in arguing
this case after the decision made in that case
by your Honor rs that decision was predica-
ted upon the idea that the Court of Appeals
in the case of Cunningham Us. iSgures-2d
West Va. Rept's-had decided that the Su-
pervisors were an inferior tribunal, and as
such this court could supervise and control
their proceedings, and believing that that case
decided no such thing, he felt bound, in duty
to his client, to present his views upon that
point, considering IL Still open.
He did not understand that decision as
court and counsel had done. If he believed
the Court of Appeals had decided any such
thing, he, out of respect for them, would not
argue this branch Of the case.
Cunningham VS.. Squires was case of pc.
tition to the Court OF Appeals for writ of
Prohibition to Circuit Court to prohibit that
court from reviewing by ceriiordrt the pro-
ceedngs of Board of Supervisors.
Judge Brown was the only judge who de-
| livered an opinion in that case. He took the
ground, as reason for refusing the writ,
that the Supervisors were an inferior tribu-
nal and, being such, certiordTi would lie to
the Circuit Court to supervise and control
! their proceedings. In this result udge Will
| liam i. Harrison concurred; but expressed
no opinion further. Judge L. w. Harrison
dissented. These judges comprised the court.
Clearly Judge I. w. Harrison was of the
opinion, as be was for issuing the writ that
| the Supervisors we're not an inferior tribunal.
| But is it as clear that Judge William A
thought it was
May he not have concurred in the result
because he did not choose to say to Circuit
| court, in advance of any action by that court,
that it should not, If in its opinion it had
| Jurisdiction over the Board OF Supervisors by
certiorart, supervise and control the proceed
ings of that Board 1t was time enough to
FAY SO after the case had been heard in the
Court below, and it had come to the court of
Appeals upon Writ of Error, or Supersedeas.
Then, and then only, was it either necessary
or proper for the Court of Appeals to decide
whether the Court below had jurisdiction by
certiordri over the proceedings of the Super
visors. Whether the Board of Supervisors
was such in nfertor tribunal as the Circuit Court
could supervise or control their proceedings
was not, in his opinion, decided by the court
in that case. They simply refused to issue