The Wheeling daily intelligencer. [volume] (Wheeling, W. Va.) 1865-1903, 1889-03-13

i 3Uth lPESt Virginia, 10, luU'
. This being so, 1t is plain that the per
0 son thus placed in tho Office before the
. decision OF the contest would be there
Q without any legal right, he would be
, mere intruder because he had never
: been elected and was never legally en-,
+ titled to the office. II Is not overlooked
that under some constitutions and sys-
4 TENS OF government it may occur and Is
! contemplated that q person may, during
contest, exercise the functions OF an
office to which he has not been elected,
and which he had no legal right to hold.
j This Is Conspicuously so in the cases OF
members Of the Legislature and the
lower house Of Congress. In these
cases such result is unavoidable, be-
cause the very body In which such per-
son sits is the tribunal appointed to de-
termine the contest, But such Is not
the case in respect 10 the Governor
and other executive officers ot
this State, Our constitution provides
that the terms OF all officers,
except the executive officers, shall COM
mence on January !, but in order that
the Governor and other executive Off
GERS may not be called upon to exercise
the duties OF their respective offices until
any contest In respect thereto may be
determined, the constitution wisely post
pones the commencement OF their terms
until March 4, Itmay also be conceded,
that by the provision OF The constitution
belorG quoted, which provides for the
opening OF, publishing and declaring the
result OF the election, II was intended
that this declaration OF the result should
precede the contest, and thus give to the
person having the highest number OF
votes as shown by tho certificates and
returns the prina tdcis title TO the office
and the right to the eadvantageouspos
Of contestee In the subsequent contest.
But while this may have been contem-
plated by the trainers OF the Constitu'
tion, 1t Is just as plain that they also
contemplated that the Legislature woald,
as 1t was clearly their duty to do, pro.
vide by law for the maturity and trial OF
a contest for any and all OF said offices
before the time fixed for the commence
ment Of the term, ltis scarcely possible
TO believe that II was contemplated by
those who made and adopted our Con-
stitution that We should ever have the
anomaly OF a person disCharging the
high and responsible duties OF the Chief
Executive office OF the State who had
never been elected or otherwise desig-
mated by law to perform the duties Of
that office. The careful and guarded
provisions OF the Constitution itself rs
well us its general policy forbid any such
construction, unless there is no escape
from 1t.
The joint assembly Of the two houses,
finding itself In thisserious dilemma pro.
duCed not by question rs to tho intent
and purpose OF the organic law, but by
a defective statute or the omission OF the
Legislature, whether resulting from in.
adVertence or other cause, 1t Is inmate.
rial for me to inquire, to provide in
proper and practicable manner and in
accordance with the express power con.
ferred upon 1t by the Constitution, for
tue trial and determination OF a contes.
ted election for the Office OF Governor
before the commencement OF the term
OF office, decided, as we must assume 1t
believed 1t had the right to do, TO refer
the certificates and returns for said Office
to joint committee on the contest, ap-
pointed in the manner prescribed by
law, and to suspend the publishing and
declaration OF the result until said
contest be decided. This decision and
action Of the joint assembly, to say the
least Of 1t, does not appear to be unrea.
sonable or unjust to any one under the
peculiar and embarrassing circumstances
Of the situation before US. But for the
purposes OF the case now before us, 1t Is
necessary for us to determine whether
this action OF the joint assembly was
right or wrong. The rGal questions for
US to declare are:
First-Did that assembly or any con-
stituent part OF the Legislature have
Jurisdiction OF the subject-that Is,
whether or not II had the constitutional
right to determine the question:
seCond-Ifso, had it any discretion as
to how It should determine It or tho
manner in which or the time within
which 1t should finally decide?
II these two inquiries are solved In the
affirmative then, so far as this proceed.
ing by mandamps is concerned, 1t had
the same legal power 10 decide wrong
that IL had TO decide right. For II Is a
principle OF law too well settled 10 justi-
| ~ the citation OF precedent, that while
mandamus may be invoked to compel
the decision OF discretionary question,
1t cannot be used to dictate or control
that decision even when directed to the
officer or tribunal having the power to
determine tho question; much less will
the court in aC0llatGral proceeding, such
as the one before US, undertake TO review
or correct such a decision, however or.
roneous II may be or however unj and
unreasonable,
!. That either the Speaker Of the
House or the joint assembly land for
present purposes 1t is immaterial which,
has Jurisdiction TO open aud publish tho
returns OF the election and declare the
result, there can be no denial because
the right to do so Is conferred by tho
constitution in express terms. The
language employed Is, "The Speaker Of
tho House OF Delegates shall open and
publish the returns In the presence, v
&c. "rhe person having the highest
number Of votes shall be declared duly
el eCted."
9. The important inquiry is, whether
or not this authority, which Is given the
right 10 open and publish the returns
and declare the result hos any discretion.
ary powerI that is, whether or not the
power conferred Is merely mechanical or
purely ministerial, involving no act in
; which there is any legal right 10 exer'
cisC discretion or make any choice as to
the conclusion which must DO reached.
II Is hardly possible to conceive Of
public office, tho duties Of which do not
: require o. the officer filling II tho exer.
; else Of discretion, II some instances
judicial officers perform ministerial acts
and on the other hand purely minister.
ial officers exercise discretionary or quasi
judicial functions. Almost every pub.
|, iic officer, whether judicial or minister.
| iIl, must In the discharge OF Ills duties
act in both capacities, Some Of his acts
will necessarily be ministerial while
othep from the same necessity must DO
judicial or discretionary. Whom o min.
istcrlal officer eXorolbea discretionary
, powers such acts arc generally denomi.
+ mated quasi judicial acts.
, In Henderson W. Smith, Goth West
!, Virginia, 800, this court decided that, a
notary public, III making and certifying
/ the Acknowledgment aud privy exam.
| - ,.,a.s,s,, A. I.,l