Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1888-12-07
DENIED.
A DECISION HANDED DOWN BY JUDGE
BOYD, YESTERDAY,
In The MaHdanas Proceedings Instituted BY The
Republicans Against the Board Of OOmnis-
s~iOnsrs-Gist Of the Opinion.

In Part Two of the Circuit Court, yester'
day, Judge Boyd delivered sn opinion de-
pying the writ of mandsmus asked for by
the Republicans to compel the Board Ct
Commissioners to sign a bill Of exceptions,
and inferentially denied at the came time,
although not in so many words, the sppli-
cation for q writ of ceTtiOrsri. An order,
embodying the conclusions reached by the
Court, was accordingly prepared by
sci for the Board and for Mr.. Pendleton, and
submitted t the scrutiny of the gentlemen
on the other side. The order will, in all
probability, he entered this morning.
The next proceeding, it is presumed,
will he the removal, by the Republicans,
of the matter to the Supreme Curt Of
Appeals.
The decision Of the Court created q coed
deal Of interest about the city, it being in
direct opposition to the decision Of the
Supreme Court, as announced in the Char
leston telegram pahl:shed in the REGISTER
of yesterday. In concluding his remarks,
Judge Boyd read extracts from the Gear
lesion kilograms, and said that from all
the information he was able to obtain, 1t
was bis opinion tee points at issue before
tbs rsspsetiye tribunals were not identical.
In delivering his opinion, Judge Boyd
said the Law was well settled that Courts
could not supervise the actions of Inferior
tribunals in those matters which are legis-
lative or executive, and not Judicial, IN
less an ac. of the LegislE Azure, not Opsn to
objection on account OF its being III con-
fict with tbs Constitution, specifically
coufers sucn powers upon the Court. II,
however, ths Inferior tribunal usurps
powers which were never conferred upon
il, the Courts will interfere by the issu-
snce of q writ of Prohibition, if the p o.
ce:diugs before the inferior tribunal are
still pending aud undetermined, or by a
writ of certiOrari if the proceedings ale
ended. This view of the case wa upheld
by the cit alton OF authorities in West Viz
ginia practice.
Proceeding, he sid
'In the case at bar, the Commissioners
Of OHIO county are not usurping jurisdic-
ton, nor sbusjDg their power and violating
the law. They ara, so far as the pagers
before me indicate, acting strictly within
the letter of the law. If they have rot
counted certain votes for the petitioner,
Geo. W. Atkinson, which they should have
counted, his wrongs can be rightei Before
the proper tribunal, appointed By law 10
hear and determine contested elections.
"'Is the counting of ballots by the Bard
of Commissioners a Judicial act" That
is the question to be decided. In Brazie V.
Commissioners, tie Court says: Whether
the papers laid before them the Commits
sioners) by the Clerk, and purportipg to
be returns, are such genuine aud substan-
TALLY authenticated returns as are re-
quiIei by law is the Only judicial powers
the Board of Commissioners possess. All
their other duties s!e purely ministerial.
This language is reiterated in the CheCo-
with case, ard in the Poteet case, decided
in 1887. Thtsa cases, therefore, settle the
question, to my mind, that the counting
Of ballots IS not a judicial but q purely
ministerial act, ard ss such not review
able.
1.-The spirit aud reason Of the law ap-
pears to NE to initiate against the intecpo-
sition sought to Re placed upon the statute
by the counsel for the petitioner. The
Judges of the Courts are not in any way
better qualified TO cluut ballots, 10 tell
whether or not a name has been erased or
scratched from a ballot-whether a name
written or printed on a ballot IS lsgible, or
nCt-than the members OF the County
Court. TheS are not required or supposed
to be experts i'll p~enmanship or ma;hemat-
ic9. The effect and consequences of such
construction would be deletelious TO the
administration cf justice.
ANY error that the judges or Court
might make would Eot be binding upon
the candidates at the election. The petit
toner could Immediately, if the recount by
the Court did not result in giving hin the
certificate, proceed to contest tie right OF
his opponent 10 the Office, before the
County Court, sitting as a Court, and not
as a Cauvassing Rosrd. HIS opponent
could DO likewise, if the result of the pro-
ceediugs on TIE cetiOrari should he adverse
to him. In other words, two suits would
be instituted, when matters could BIS Geci.
ded in one
Moreover, every officer in the county
ard State could institute such suits-trom
twenty TO thirty in num6er-f0r State
Governor, JudgeP, Attorney Gen.
eral, etc, etc. Such suits could b in
in every county in the State.
might thus Re compelled to issue
restraining orders in every county in their
Circuits within a few days after the cleo
ticn, 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 tie Circuit Court
meets in the counties Of Brooke or Han
Geek until March next, presenting, if such
a cour:e would be permissible, endless
complications"