Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1884-12-01
EFozs iAe Srasiay ReytsT.
THE FAYETTE CONTEST.
Commissioners Have No Power to
Go Behind the Returns.
So the Supreme Court HOlds---The Defend
ants Win the Celebrated Mingo lrOa
Works Case---0ther
Decisions.

The Supreme Court of Appeals yesterday
decided the Fayette County election case,
BY issuing the writ of prohibition, deciding
the commissioners had no power to go be-
hind the returns. Brazie and others VS..
Van Pelt and Others, upon writ OF error to
Judgment Of the Judge Of the Circuit
Court OF Fayette County entered in vaca
ion, discharging rule issued in vacation,
at the instance Of II. ". Brszie, who
claimed to be entitled to the certificate o.
election for prosecuting attorney, and the
other two plaintiffs, who respectively
. claimed the certificate OF election TO IN,
offices Of clerk Of the circuit court anu
county commissioner, and refusing 70 issue
writ Of prohibition to prevent the said
commissioner from going behind the re
turns TO hear evidence and eNc!Ud'
the votes Of those voters who, IL
the opinion Of said commissioner we're in
legal voters. The rule was issued on the
18th of October, returnable before the
Judge on the 3Oth Of October A writ Of
error VAS granted by Judge Of this court
on the lob dsy Of November to the said
Judgment OF the Circuit Judge. By con
sent the case was heard on oral arguments
by the court on the 22ud of November.
Goyernor-elect Wilson appeared for the
defendants, who were candidates for the
same Offices as the plaintiffs respectively.
and moved the court to dismiss the writ,
because:
LIST. The judge had no power in vacation
20 issue q wrgt OF prohibition.
md. Because this writ, can only issue
from supreme 10 an inferior court.
Sd Because the Commissioners have thu
right under the law TO go behind the
returns. Judge J. II. Brown appeared for
the plaintiffs in error.
The Court on yesterday, the 29th, Judge
Snyder announcing the opinion, held:
|. The Statute, sec. 8, ch. Is, Acts 1882
authorizing a Judge Of the Circuit Court in
vacation to issue a writ of prohibition is
Constitutional
Such Judge being thus authorized to issue
such writ in vacation, may issue rule for
such writ returnable before him and hear
the same in vacation, and a writ Of error
lies from his Judgment in vacation to this
Court.
ID. The writ of Prohibition lies from
Supreme Court not only to interior .jUticidt
tribunals, but TO inferior ministerial tribu
nails, possessing incidentally judicial powers
and known as guGSi judicial tribunals, aud
also in extreme cases to purely ministerial
bodies when they usurp and attempt TO
exercise judicial functions.
Cd. Such writ lies from the Circuit Court
% the County Commissioners assembled in
.pecial session to ascertain the result Of an
election under chap. lj5, acts OF 1852, to
prevent them from transcendiBg their
legitimate powers by examining witnesses
ard hearing evidence to determine
whether the precinct commissioners
have certified and returned the vote
of persons not entitled to vote with q view
TO rejecting such votes.
18th. Aside from the quasi judicial func-
tons necessarily incident TO their duties in
determining that the ballots, poll books and
certificates of the election returns laid be-
fore them are genuine, that they are IN tact
the returns and substantially In the form
prescribed BY the statute and to arrest and
have them put in prison if they are not So
The duties of said commissioners are purely
ministerial and their ludlcal fnncuonS are
limited TO the acts prescribed in the 2lst
section Of said statute.
9Th All the acts of said county commits
sioners must be based on the returns as GER
tilted TO them from the several voting
places Of the county. The 18th section OF
said statute has no application to their
duties as canvassers of the election; the
powers therein conferred apply alone to the
final judges OF election in case Of contested
elections. -,
The court reversed the Judgment of the
circuit Judge, and proceeding to render the
Judgment he ought to have rendered, made
The rule absolute, and ordered the writ OF
prohibition to issue to prevent the county
commissioners from going behind the returns.
All the judges concurred.