The daily gazette., 1882-06-21
|VHF MANDAMUs CASE
,,ou DELIVERED BY JUDGE
|oPINloS WooTTEN. el4taA
LraA11rY OF THE WRIT OF ERROR

LEGALITY OF THE WRIT Of = EkF0h E9
,.,,n Assumed by the Demecratic
~ Co,nsel fully sustalned-An A"'0r0ss"S
Judicial Paper
~. oniniOns of Chancellor salisbury and
~ ~ 1Pnstice Comegys delivered ~ she
ulsl ". If Errors and Appeals In the manda7
our. .'.e y, recently decided in favor OF the
bus case, ss,s having been made public, the
enosl~h has nrocured the opinion OF Judge
llst.h .I1n fnr n nnblic information, a synopsis
oOese sgDh Il oiven below. The learned judge,
yn'I" ~ ha nbseryed, sustains the legality OF
WIZ .,, ~ If error sued ont in the case aa well
,%s, @ nositions taken by Mr.. GruDo in
OI usnnent of the case. ~
,lua W u"ty Wootten begins with the following
a"sse suuse IN support Of the legality Of the
mOus writ of error !; :
,nr .,,'t IL nh tbe superior Court in and for sus-
y, ! county, and the Jurisdiction OF this
~ sVI nv wit Of error) is one Of the many
u.s a0,,ons mi presented to us for consideration,
ls'S'OI sy nil, disUOse Of it first. To determine
avs.tIou " We need not look beyond the
Nv qS,t al this court. We have one in the
~ lhs Union church VS.. Sanders,
~.,oD ia, The case was fully and
y DusUr srr,,ed before Chancellor Johns, Chief
ssse 81 Harrington and Justices Milligan
u HonstOu, at the June term, 1855.
.nasllor Johns said In delivering
nniniops of the Court "The, Court has
me- 10 this conclusion upon what
considers as reasonable con-
.ruetiou of the clause in the
eond section of the sixth article of the
Institution, which provides that this court
Al have jurisdiction to issue writs of error
he Superior Court, and TO determine
Islly all matters in error In the judgments
E NJ proceedings of said Superior Court and
ich for this purpose places the judgments
n proceedings of that court upon original
d On other than the common law grounds,
"a extends the Jurisdiction of this court by
N of error to judgments or decisions In
n proceedings in the Superior Court of
a character" This decision In my judg-
mi settles, and ought to settle finally, the
estOn of Jurisdiction In the case now
fore us. 1t has been often and well said
at It matters not so much what the law is,
10 have 1t fixed and settled on some prin-
e .5f sa'l - (
Ihis question being thus disposed of, It
ZONES necessary to notice some others
heb were dwelt upon in the argument.
Ough may not perhaps consider them
Twill sufficient number Of them,
sever, to settle the case before US. a
Judge WOotten then proceeded TO recite
statement set forth in the application of
Irs for the writ of mandamus the sworn
Wer Of Knight and Kennedy that the
hifcate Of election was given to johnson
ause he and not Ferris, had the highest
nber Of the ldgfssl votes /; and the pro
lngs in the court below, at Georgetown
ch granted the mandamus. He then
his proceeding and action of the court
Ow Is not in accord with my experience
more than thirty-fouT years on the bench
70 the law and rules of practice govern
proceedings in cases of mahdamus, and
Fefer to adhere to the old maxim stare
ps When we depart from it, we shall
find ourselves on sea of uncertainty
confusion, without any settled rules of
on practice for our guidance.
heeourt below in my judgment was not
horzed to investigate, or inquire into the
ss as to whether the one or the
f OF the candidates was elected.
vas not their province to do more than
ascertain whether the election officers
acted in the performance Of the duty i'm
ID upon them By the law which very clearly
Hes their duty If they had acted and
tcised their discretion In the performance
their duty, whether the discretionary
Ser invested in them was properly or un-
erly exercised was not subject matter
review by the Superior Court, or any
it 1t had no Jurisdiction to review
reverse the action of the election
eeis and to dictate to them what they
paddu, or to whom they should give GER
taes Of election. The court below, In
Judgment, transcended Its juris-
lOh and authority when it
lertook to determine in any wise other
U by the official acts of the election
cers whether the one or the other of
candidates was elected. In so doing 1t
umed the duties and functions of the
tuoh 10, officers. This is what the law, In
otate, IN reference to the writ of man
mus 5, mas been held TO be by our courts in
Dre than one case.
y ne case OF Almond VS.. Levy Court of
en says : :. -. 55
na u eieaf 10 my mind that the proceedings
we court below are erroneous for the
Mt oi proper parties. The peremptory
ralallius was awarded against Knight, the
gen ss,alilg " ollleeF, and Kennedy, one of the
ses ssS VI llle election, commanding them to
on au n perform the duties which 1t devolved
IOH pis pa Nfee OF the election officers, and to
sinn nltfce, the other judge of election, in
~ s, 81 signing and delivering the certifi-
po.a ~, " nhen 1t does not appear from the
O'G u eiat Fierce expressed a willingness to
csrs 149 ! cettiileate of the election of Ferris,
o,p,, W me representation of the petitioner
sl ~,,3 80 that if Pierce should refuse to
lntas,, a,su .ne other two in obeying the per-
H. Hi T. lhandamus the Court could not
\ n Si,t 1Iul within its Jurisdiction and visit
6on sn s punishment for contempt of court.
|.re ,Sa Sa . Act is TO be performed by two or
= '4eWtlt ps,l must be directed to all, though
ns,ia porIloa of the number have refused
1Eh Will;, 49, VI hub1 anu b1AC ObHtlE
me,om. lhls opinion is sustained by
ES,ious En, authorities.
hi i' AN aslae from all these considerations ]
ID tSa S' "a law which provides for and regu.
kQblv' a,n Tleetion for inspectors is unmis.
A es,o eear e, and conclusive and settles
fTba ,S Without any sort of doubt.
hotad d'auguagee of the statutes is here
aTba eo,, eeoO,n,eiudlng with this paragraph 4
Dd the iio,n,ec'or, or other presiding officer
butt al fFIngeS ths = shall, upon aseertainlng tht
ertl6catessu sue u election, make and sign thre,
be trsnS. S,s eiiereof, and shall cause the sam,
the is,enliIted without delay to wit On,
e Peacap csapeaessoff,,elect, " one to the Clerk o
huntf of w VI The county and one to th,
copeJ... tne county. Such certificates shal
uBls 10 t,sas h. se. and ths election shall not b
Noxl Nav lqsge y then proceeds
haticauhy ! dal5 Understand this statute, 1t EN-
hsptrtoSs u,eciares y, that elections for CHOOSING
eton Of tba Paa.i y, not be contested, but th
aFo = tut election oHsoa.. -