The daily dispatch. [volume] (Richmond [Va.]) 1850-1884, 1870-11-07

APPLICATION FOR 4 WRIT OF PRORIBE
1ION DENIED.

4
the judges presently decided adversely {
the petition for writ of prohibition to Pre-
vent municipal election in Richmond O.
Tuesday next, November 9Th. The opinio
| OF the court was delivered by Judge Joyne:
We append full report:
This case depends upon the question
whether county or corporation court ha
jurisdiction and authority to decide In tn
case Of contested election that there ha
| been no valid election, and thereby to Great
vacuum, to be filled In the manner uro
vided by law. 1t county or corporation
| court has such Jurisdiction and authorit,
| in any case Of contested election the peti
| tioners have no right to a writ of pro
hibition. We cannot inquire whether tn,
| corporation court Of Richmond had OF
had not such jurisdiction in the par
! ticular case. That would be to convcr
a writ of prohibition, which proceed
upon an excess Of Jurisdiction, into wrl
Of error, which proceeds upon an error ir
the exercise Of jurisdiction. 1t has accord
ingly been contended on the part of the pc
| titioncrS that the authority conferred upor
the county and corporation courts to deter
mine contested elections, applies only to
been voted for for the office in question
bound either to allow the person who has
already received a certificate Of election
from the commissioners to retain it or tC
give it to another person who was voted fol
at the election, and that it cannot in any
case whatever decide that there has beer
no election, SO as thereby to create Il va
cancy.
The authority of county and corporation
courts to determine cases Of contested eIec.
tions, is conferred by section 69 of the
"act to provide for general election" ap-
proved May II, 1870 (sess. acts p. 81. This
section is transcript in all essential par.
ticulars, except only the clause comprised
in the last four lines Of the 9th and 10th sec.
tions Of the general election law of 1852
(sess. acts PIP. 62,6) which were reGnactcd in
the 9th and 6Sth sections Of the general
election law of 1858 (sess. acts PIP. 29-30.)
The complaint must be filed within ten
days after the election. 1t is to be heard at
the next term of the court, which sits every
month, unless good cause be shown for a
continuance. The case is to be determined
by the court without jury. AS soon as
the complaint is filed, the parties may pro-
ceed to take dispositions, and the case is to
be heard upon the dispositions and upon oral
testimony, if any. And the decision of the
court is declared to be final. 1t was obviously
the purpose Of the Legislature in this Sec
tion to provide as cheap and expeditions Il
remedy as the case would admit of, and to
close all such controversies in the shortest
practicable time.
In the absence Of such provision as this
section supplies, it would have been ncces-
sary TO resort to the writ of quo erarrantot to
ouSt an officer alleged to have been unduly
elected. That writ could only be obtained
from the Circuit Court, which sits but
twice Il year (eXccpt ill few towns having
Hastings Courts with Circuit Court pow
ers), and its judgment would not be final.
but subject to review upon IL writ Of error.
In many cases, especially in the case Of an-
nu;if officers, it would have been in the pow
CT of candidate fortunate enough or deX-
trouS enough 70 secure the certificate OF
the commissioners, by the help Ola little man.
agcment, TO wear out the term of office in
litigation. And it would often he impoSsi-
bic, with the utmost diligence, to bring 4
litigation, fairly conducted, TO an end until
the term had run ont, or so nearly so that
what was left of it would not be worth con-
tending'for or worth having. This Obvious
policy Of the statute must he borne in m:nd
in putin" 4 construction upon it.
The opening clause of the siXty-ninth
section provides that the 'retu:ns of cleo
tions shall be subject to the inquiry, de-
termination, and Judgment of the court.
From this it is argued that the authority of
the court is limited 30 an examination of
the returns. The complaint of the fifteen
voters, however. may be of can uniue
election or false return" it is provided
that the court, in judging of said elections,
shall proceed upon tie merits thereof, and
Dispositions may be taken to ''suStdin or
iuU1Lid0te said election"
We are not called upon in this case to de-
fine the scope of investigation and inquiry
authorised by these proceedings; but it
seems to be very clear that it is not re-
stricted to Il mere examination of the re-
turns, and moreover, that it may be such
as to "invalidate the election in other
words, such as to show that there has been
no legal or valid election. The election
which is contested may be invaldated for
the reason that the entire election was ille-
gal and void. If the inquiry may take that
scope, does it not follow that the judgment
Of the court may respond to the inquiry ]:
Why authorize the court to inquire into
what it cannot determine?
But it is contended that the latter part Of
the section, and especially the last clause,
limits the jurisdiction of the court to cases
Of contest between competing candidates.
This part of the section speaks Of the party
" whose election is contested" and directs
that the court shall proceed at the
next term to "determlne said contests"
The first OF these expressions obviously re-
iers to the proceeding authorized by the
first clause, for no other contest is provided
for. So, too, "the said contest" which the
court is to determine are those instituted
by the complaint Of the fifteen voters, for
no other is spoken OF or provided for in the
previous part of the section. Each party"
is to be allowed to take dcpositons, which
is said to contemplate an array of one COM
petitor against another. But the section
feated candidate party. The complaint is
that Of the voters not his complaint. The
officer whose election is contested is to have
notice of the complaint of the fifteen
voters by service of copy. There is no
provision for any intervention by the de-
feated candidate, or for the filing or service
of his claims or allegations. And what
reason can be assigned for restricting the
right of the voters to complain OF an undue
election-to cases in which there were COM
petng candidates, or more than one person
voted for!
Then comes the last clause, which is so
much relied upon, and which is in other
words: When the contest is divided a
certificate of election should be issued to the
party in whose favor the contest is decided
In the manner prescribed by law, unless Il
certificate shall have been previously issued
to such persons"
AS have said before, this claim is not in
the act of 1852, sections and 10, or in the
act of 1863, sections 6S and s, which are the
prototypes of the other part OF this section.
What has been said already seems to bc
sufficient to establish that there is nothing
in the other part of this section to coninc
the jurisdiction of the courts to cases OF
contest between competitors. In the case
of West VS.. Ferguson ct ais, 16 Grattan,
270, it was held by the court that the juris-
1.nfso oc hn h.. .Irf