Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1889-03-13

the tribunal appointed 20 determine the
contest
But such is rot the case in respect 10 the
+ Governor and other executive officers of the
state. Our Constitution provides that tie
terms of all officers except the executive
I officers shall commence On Janusry l. but
ma order that the Governor and other exec
/ uuve officers may not he called upon to ex-
srcise ine duties of their respective offices
until any contest in respect thereto may
oe determined, the Constitution wisely
postp1nes the commencement of their
terms until March 4th. Itmay also be coz
csded that by thepIovision Of the Consutu-
uou before quotei, whicn provides for the
opening or, publishing and declaring the
returns o. the election, 1t was intended
that this declaration Of the result shOuld
precece the contest, and thus give 10 the
person having the highest number of votes
as shown by the certificates and returns
right 20 the advantageous position of con.
testse In the subsequent contest.
The Legislature Did Right.
But while this may have been coatsm-
plated rY the trainers of the Constitution,
10 is just as plain inst they also contem-
+ plated that the Legislature would, as 1t
was clearly its duty TO do, provide by law
Tor the maturity and trial OF q contest for
auy and all of said offices before the time
fixed for the commencement OF the term.
ltis scarcely possible 20 believe that il
was contemplated by these who made and
adopted our Constitution that We should
ever have the anomaly of person dis
charging the high and responsible duties
0t che Cnie. Executive office of the State,
who bad never been elected or otherwise
designated 10y law to perform the duties of
that ofi Tue csreful and guarded pro-
visions OF the Constitution itself as we'll AS
. It's general policy for.id any such con-
strucuOD. uDi5s there is 10 escape from r..
The Joint assembly OF tee two houses
finding itself i1 yhis serious dilemma,
Produced no. By a question as to the III
I tent snd purpose Of the organic law, but
by q defective stsu.e OF the omission OF
che Legislature, whether rasultiHg from
inadyeg5enc- OF o-har cause it IS lmmaterael
for toa Colst 20 irqCire, 10 provide IN o
I proper and practicable manner, snd ia ac-
cordance with the express power conferred
upon 70 by tue Consultation, Tor the Gill
and determination Of q contested election
I for the office cf 70 Governor, before the com
msros nent of the .erm OF office decided
as We must assume it believed.
To had the result TO refer The GER
+ tiicstes and returns for said office 60 a Joint
committee on the contest appointed IN the
manner prescribed hy law, and 20 scspend
+ the publishing and dedication OF the re-
suits until said contest be decided This
decision and action of the Joint assembly
20 say the least of ll does not appear TO be
euber urreleouahle OF unjust 20 any one
uode- the peculiar and embarrassing cir
cumstsuca7 1f the situation before us.
Two Important Inquiries.
But for the purposes Of the case now he
+ fore us, il IS uurece slry fer us 10 deter
niue whether this action OF the joint SIS
-em0iy was right OF wrong. The real
questions tor us 20 decide are.
Frst-DId that assembly, or any col-
stiluent part OF the Legislature, have jur-
i-dicti0n of the subject? Thatls, whether
it had the constitutional tight 20 deter
mine tde question; and, secont-If so, had
ic any discretion as 20 how it should de-
tsrmine it. OF th, nanEer in which, OF the
time vithin which 10 should finally de-
eide?
Ii these two inquiries are solved IN the
Affirmative then so lar ga this proceeding
b7 nandamu5 is concerned, 1t had the
same legal power 10 decide wrong that IT
had 20 decide right. For IL is a principle
of law too we'll sattied 10 justify the clta-
tiou of precedent, that while mandamus
nav be invoked to compel the decision Of
a discretionary question it cannot be Ussd
20 dictate ur control that deIson even
when directed 90 the officer or tribunal
having the power TO determine the quss-
tion much less viii the C0ur, in q c0lia.er-
' al proceeding, such as the one before us,
undertake 10 review or correct such decis-
ION. however erroneous II may be OK how
+ ever upiust and unreasonable.
That either the Speaker Of the House or
the Joint assembly ,aDd for present pur-
noses 10 Is imuaterial which has lurisdic-
tion 10 Cpen and publish the returns Of the
election and declare the result there csn
bs no denial: because the right TO do So is
conferred hy the Constitution IN express
terms. The language employed ie, The
+ Speaker o. the House OF Delegate SAsii
open end publish the returns In the pres
erce. Sc. ''Thc person having the hlga-
est number of votes shall be declared duly
elected ~
Legislatures judicial Power.
The important inquiry is whether
NJ no. the authority, which is given the
right TO omen aod publish the returns and
declare the re-ult. has any Discretionary
noger. that Is. whether or not the power
conferred is merely mechanical or purely
ministerial, involving nos act IN which mere
ia any legal right % exercise discretion OF
make arv choice az 20 the conclusion Whlch
must De reached.
ID is hardly possible 70 conceive OF q puo-
lie Office the duties of which do not require
nj the officer filing 10 the exercise
of discretion. In some instances
iriicisl officers perform ministerial
acts. and on the other hand purely minis
tsrisl officers exercise Discretionary OF
ou.si judicial functions Almost every
hubble officer whether Judicial or MINIS
isrial must IN the discharge oI his duties
,c+ i'm both capacities, some OF MS acts Will
,e,assarilv be minister ial while others
f,oro ,be same necessity must be- judicial
mr. discretionary. When q ministerial OH
cor exercises discretionary powers such
scts are generally denominsted qussi Judi
Tn Henderson v. Smith, % W Va, 829'
tbis Court decide that q notary pubic IN
t,ting and certifying the acknowledge
rrent and privy examination Of a MARIE
,.,on,an 10 q deed acted IN a quasi judicial
cs,,rity. And in Brazie v Commission
e.s ~ W Va 213, we decided that the
c,1rty commissioners Of q county court
,ybap essembled 40 sDec a. s,sslca, to as
c,rtsin the result Of an election eXercisS d
o1a.i iulicial functions IN determining
fbat the ballots, p0ll-bOoks and certificates
~ The election returns Ia q before them,
ers Genuine. that they are in fact the Ee'
+rrrs and substantially IN The form pre-
scribed 10y the statute.
m ia true we held 10 tnat case that pro
bibition would be to prohibit the commits
eiopers from usurping and attempting to
s,ercisa judicial functions not conferred
rnon them by the law, but the opinion
ciesrlv shows that the court could not IL
terfere either by prohibition or its correls-
tive writ. mandamus, with the judicial
discretion OF the CcIiiulocluhSio iA Ae'PNN'
to anv Of the discretionary powers confer
red on them by the statute.
If the County Cour. Commissioners,
which is conceded to be a ministerial body,
car when sitting As s canyassing board to
ascertain the result OF an election, exercise
discretion ia determining the genuineness
oft the certificates of the returns laid before
them il seems TO be equally reasonable
and proper that the joint assembly OF the