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

ont supplying these omissions the result
wo0ld have been different from that which
il WAS ultimately declared 10 be. 1t does
nOt seem that the right Of the Joint aseem-
/ bly, to supply this omission by supplement-
| ing the returns laid before it was or could
/ be with propriety questioned by any one
Ia respect to the returns for the Office of
/ Governor, the said Journal shows that the
| certificate for the county of Kanawhs had
been superseded by an order OF the Circuit
COurt of that county upon writ of GER
t0riq to set aside said certificate and re-
/ turn and that said order was still in force.
1t cannot be denied that said court had
/ Jurisdiction 70 make said order and in
/ proper case TO set aside or correct said GER
tiicates for this Court has expressly de-
cided that i. had such jurisdiction. Chen
owith vs.. Commissioners, % ". Va go;
/ Anderson Va Commissioners, - W. Va s.;
S. Z Rep pa
What the defect was in this certificate or
the returns 10 purI orted TO give We have no
means Of determining, but in the absence
OF anything showing the contrary, even if
/ this Court should inquire into any
question IN respect to saiG returns which
Is not conceded, it would be mere aesump-
ton to hold that the joint assembly bad
not the legal right TO question or reject, az
least, that certificate, and if that had been
done, enough appears upon said journal 20
make it probable that Fleming and rot
GOf would have had majority of the
| votes cast IN the State, aud would there
/ fore, probably have been declared elected
Governor.
The Legislature Acted Within Its Powers.
1t seems to me, therefore, that the Joint
+ assembly sitting for ,he purpose of open
ing and Publishing, or hearing opened and
/ pGolished, the retJ rms Of the election for
/ Governor and other executive officers.
acted in q quasi judicial capacity, at least
+ iu respect 20 determining the genui1eness
Of the certificates and that 1t WIS not
bound 20 publish the returns or decla,e
the result until il had before It all the
genuine returns or exhausted all the means
In it's power to obtain them without being
able TO do SO. Aud it having q quasi
/ Judicial or discretionary authority
IN respect TO these matters. and
not having fually refu ed to
exercise that authority, this court cannot
by mandamus if il could do so in any pro
cseding, take jurisdiction either for The
purpose determining those matters for
tself or determining the result OF the
election.
1t Is, however, insisted that the demurrer
TO the petition admits that the petitioner
mad received the highest numb T OF oies
for the Office Of Governor aud thet thera-
fore nothing was LETT uudone or could
have been done by the Joint assembly to
entitle him to The Office except the purely
ministerial act of ac. of declaring him
elected; and inasmuch IS thaj must be the
inevitable result Of what sd been done
or what is admitted ny the demurrer here
this Court will treat that ministerial act
as having been done, and adjudged TIE
Office to tha petitioner.
do no. think the admission goes 10 the
extent claimed. The petition simply AYERS
that the certificate aud return made out by
the County Commissioners, 20 opened ard
published, in fact showed that the pet-
tioner had the highss, number Of votes for
the Office of Governor Now, ~ a matter
of fact, other parts of The petition end the
Journal OF the House, which i3 made par,
of it, snow .hat only part OF certificates
/ for Governor had been opened and thai
none Of them had bsen approved as correct
/ or published. We must take all the allega-
tions of the petition together and when We
do SO lind tnat 10 is impossible that the
certificates aud returns 80 opened and pub
lished in fact showed tina. petitioner had re-
ceived 73, IA votes l think, therefore,
/ there is no foundation for this contention.
Decided on Fundamental Principles.
[ have thus FAR considered the important
questious presented without reference to
| the fundamental principles, lying at the
basis of Our Republican system OF govern
ment. and which were so lesrnedly and
ably discussed by counsel According to
| these principles the case must also be de-
termiued against the claim Of the petition
/ er.
The Consultation declares ''the L2gisa-
/ tive. Executive and Judicial departments
shall be seperate and distinct, so that
neither shall exercise the powers properly
belonging 20 either of the others; nor shall
guv person exercise the powers of more
than one Of them at the same time, except
that Justices OF the peace shall be eligible
/ to the Legislature. Arts.
Other portions Of the Constitution, as
we have seen, not only provide tbst The
/ Legislative department OF the government
/ shall open and publish the returns OF th9
election for Governor and declare the re-
suit. but confer on that department the
exclusive right 70 determine contested
elections for tnat office.
II was admitted in the argument in this
case that the Legislature must first act
u0on the returns of the election for Gov
I ernor. or at lesst that body, or some con-
stituent part OF II, is the only authority by
which the returns can be opened
and published; bat it is de-
MED bv the counsel for the
petitioner that if that body refuses TO de-
clare the result Of the election, such re-
fusal will prevent the person having the
highest number of votes from qualifying
ard exercising the duties of that Office, and
az a corralary of this proposition, they IN
sist that the judiciary department has the
power in case the legislative department
/ fails to discharge its whole duty by dec.sr-
| ing the result of the election, TO declare
that result or to do what is the same in
effect. adiudge the person receiving the
highest number of votes for the office OF
Governor to be in fact the Governor.
The Cour; Cannot Interfere.
1t is claimed that this right or power in
/ the Court is the result Of absolute neces-
sity; for otherwise the sacred rights of the
psople are at the mercy of the legislature,
/ however corrupt and partisan may be iis
actions. This was a proper matter for the
confederation of the trainers OF the c0nsu-
tu,ion. aud cf the people when they adopt
ed it. but when the people in their sover-
eign capacity declared in their constitution
that this power should be vested in the
legislative department of the government.
and that the judiciary should not exercise
aay of the powers belonging to that
deDsrtment. the question WAS settled and
the Courts have no power TO interfere or
suastion its wisdom. For the grounds and
reasons why the Courts cannot and will nos
und rake to determine questions such as
the one here presented, l refer TO the eI-
baustive discussion of the subject in the
following decisions: State V. Baxter, =
Ark, l29; Baxter V. Brooks, % Ark, 49,
Greer V. Shsckeliogd, Const. *. Is. u,
6l2. Batemsn =. MsCGowsn, MstC Ky
533: state Y. Marlowe, 10 Ohio St., ia;
Boyce V: Goodwin. - Mich, 1876; State V.
Mason. n No, 1S9 State V. Lewis, 5l
Conn, 11S; State Y. Harmon, 81 Ohio 81
$50; Collins Y. KnOblock, p La. An, 265;
Roger V. Johns, 42 Tex, 339; People V.
Supervisors, 100 ILL.,, 495; Attorney Gen
ersl V. Bsrstow. Wis, 567; ex parte
Smith, s S. c, 495; Peopley. North, Y n