The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1888-12-07
ROFH VRT7S REFUSED.
Judge Boyd Decides Mr.. G. w.
Atkinson's Application
FOR A WRIT OF MANDHMUs,
And his Decision ends the Whole
Proceeding-Thc Difference be-
tween the Case here and
Tin Kanawha County.

In Part II OF the Circuit Court yester-
day Judge Boyd rendered his decision
in the matter Of the application Of G. W.
Atkinson for writs OF mandamus and
certiorari. Rather, the decision covers
only the manddmuS, which is refused;
but this necessarily carries with it the
failure Of the motion for writ Of
certioraT. Judge Boyd's opinion will be
found below. In it he points out the
difference which in his opinion exists
between the state of afEairs here and that
in Kanawha county. The order has not
been entered, but will be to-day, and the
proceedings in regard to.the recount Of
the votes for Congress will all be dis
missed.
The law is settled that courts cannot
supervise the action OF inferior tribunals
in those matters which are legislative or
executive and not judicial, t30th w. Va.
"A. 2Sth W. Va. 264. unless an act Of
the Legislature, not open 10 objection
on account OF its being in conflict with
the Constitution, specifically confers
such powers upon the court. II, how
ever, the inferior tribunal usurps powers
which were never conferred upon it, the
courts will interfere by the issuance OF d
writ Of prohibition if the proceedings
before the inferior tribunal are still
pending and undetermined, or by writ
Of certiOrari If the proceedings are
ended.
Instances OF the exercise OF these writs
are TO be found in the cases Of Bra2ie vs..
Commissioners, ETC., Us W. Va, 2l3.)
and Of Chenowith rs. Commissioners.
etc. t26 W. Va. 230.) In the ease Of
Brlzie vs.. Commissioners the Commits
sioners Of Fayette county met as u
board Of canvassers to ascertain the re-
suit OF the election. Instead of conlln-
ing themselves to the duty of counting
the votes and issuing certificates, they
proceeded to hear the evidence OF wit
nesses us to the right OF persons to vote.
The court restrained them by a writ OF
prohibition, holding that it would lie
even against purely ministerial bodies
when they usurp judicial functions,
In the case OF Chenowith VS.. Conn
missioners the Commissioners sitting as
cauvassiug board undertook to, and
did, recount the votes for the office oil
Sheriff three times, in plain violation Of
the law. They in doing SO were guilty
OF an abuse OF their powers, of viola
ton Of the law in tue exercise Of them.
There being no appeal or writ Of error
allowed by law, certiorari lay to correct
the error.
In the case at bar the Commission"
ers OF Ohio county are not usurping ju'
risdiCtion as in the Brazie case, and they
are not abusing their power and viola
ting the law as in the Chenowith case.
They are, so far as the papers before me
indicate, acting strictly within the letter
OF law.
II they have not counted certain votes
for the petitioner, George w. Atkinson,
which they should have counted, his
wrongs can be righted before the proper
tribunal appointed by law to hear and
determine contested elections.
Is the counting OF ballots by the
Board OF Canvassers a judicial act? This
| is the question to be decided. In Bra.
zie vs.. Commissioners the court says:
'"Whether the papers laid before them
tthe Oommissioners) by the clerk, and
purporting 10 be returns, are such
genuine and substantially authenticated
returns rs are required by law is the
only judicial power the Board OF Com
missicners possess. All their other
duties are purely ministerial"
This language is reiterated in the
Chenowith case, and in the Poteet case,
decided in 1887. These cases, therefore,
settle the question to my mind that the
counting OF ballots is not judicial, but
a purely ministerial act, and as such not
renewable.
The spirit and reason Of the law mp
pear TO me to initiate against the inter
probation sought to be placed upon the
statute by the counsel for the petitioners.
The judges ofthe courts are not In any
way better qualified to count ballots, to
tell whether or not name has been
erased orseratched from ballot, whether
name written or printed on ballot is
legible or not, than the members OF the
county court. They are not required or
supposed to be experts in penmanship or
mathematics. The effect and conse-
quGnce OF such a construction would be
deleterIous to the administration OF JUS
tice. Any order the jury orGoHrt might
make would not be binding upon the
(parties) candidates at election. The
petitioner could Immediately, II the re-
count OF the court did not result in CIV
ing him the certificate, proceed to con-
test the right OF his opponent 10 the Of
fee before the county court, sitting as a
court, and not as canvassing board.
His opponent could do likewise If the
result Of the proceeding in the certiordri
should be adverse to him,
In other words, two suits would be In.
stituted, when all matters could be de-
cided on one.
Moreover, every officer in the county
and State could institute such suits,
from twenty to thirty in number, for
State officers, Governor, Judges, Alton
ney General, etc. Such suits could be
instituted in every county In the State.
Judges might thus be compelled to issue
restraining orders in every county in
their circuits within few days after the
eleation, recount=the ballots in every
case, In every county, simply for the
purpose Of declaring who should be
plaintiff and who defendant In suits
about to be instituted. No regular
term OF the circuit court meets in the
counties oil Marshall, Hancock and
Brooke until March next.
Thecommissioners holding THE election
must be sworn and the certificate which
they seEd to the county court must al
lege the fact Of their having been sworn.
This presents u legal question for the
county courts to decide, whether or not
the votes east, in Q precinct where the
commissioners were not sworn, should
be counted. 1t Ia a judicial and not
q ministerial act, and the courts will sn-
pervise it.
Important Announcement.
The management OF the Bankrupt