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

; fore them, 1t seems to me 10 be equally
reasonable and proper the joint
assembly Of the two Houses OF the Leg
islRlure when the certificates Of the re-
turns OF an election for Governor OF
other executive officer are opened and
published by 1t, or by the Speaker, in
It's presence, should determine whether
or not these certificates are genuine, and
in fact the legal returns or certificates OF
the election,
II tits the right and duty Of that body
to do so, then OF necessity that right in,
wolves the exercise OF q discretion aud
choice OF decision. Itinyolves the pow
eT to decide wrong as fully as it does to
decide right, and In neither case can Its
decisions be controlled or reviewed by
maudamus.
The House journal, which is made q
part OF the petition In this case, shows
that in the returns from Wood county
there was no certificate Of the vote for
Auditor, and In the returns from Web
ster county there was none as to the vote
for Attorney General,
II the returns had been published
without supplying these omissions the
result would have been different from
that which it was ultimately declared to
be. 1t does not seem that the right OF
the Joint assembly to supply this omis.
sion by supplementing the returns laid
before 1t was or could be with propriety
questioned by any ono. In respect TO
the returns for the office Of Governor,
the said journal shows that the certificate
for the county OF Kanawha had been
superseded by an order oil the Circuit
Court OF that county upon q writ OF Ger.
tiOrlri To set aside said certificate aud re.
turn and that saidorder was still in force.
1t cannot be denied that said court had
jurisdiction TO mako said order, and In
proper case to set aside or correct said
certificates, for this court has expressly
decided that II had such Jurisdiction.
ChenOlViih ", Commissioners 20l, West Iir-
ginid, $50; Anderson Us. Commissioners, 32d
lHest Hirginia, s; S. E, Rep 274.
That the defect was In this certificate
or the returns it purpoFted to give We
have no means OF determining, but in
the absence Of anything showing the
contrary, even II this court should in.
quire into any question in respect TO
said returns, which is not conceded, II
would be mere assumption to hold that
the joint assembly had not the legal
right to question or reject, at leRst, that
certificate; and II that had been done,
enough appears upon said journal to
make 1t probable that Fleming and not
GoiE would have had n majority OF the
votes cast in the State and would, there.
fore, probably have been declared
elected Governor. 1t seems to Inc,
therefore, that the Joint assembly,
sitting for the purpose Of opening aud
publishing the returns or hearing OPEN
cd and published returns Of the election
for GoYernoran other executive officers,
acted in quasi judicial capacity, at least
In respect TO determining the genuine
ness OF the certificates, aud that it was
not bound TO publish the returns or de.
clare the result until 1t had before 1t all
the genuine returns or exhausted all the
means In It's powerto to obtain them with
out being able to do 30. And 1t having
a quasi judicial or discretionary author.
ity in respect to these matters, and not
having finally refused to exercise that
authority, this court cannot by manda-
mus, il 1t could do go in
any proceeding, take Jurisdiction
either for tho purpose OF determining
those matters for itself or determining
tho result OF the election. It Is, how.
ever, insisted that the demurrer to tho
petition admits that the petitioner had
received the highest number Of votes for
the Office Of Governor, aud that, there.
fore, nothing was loft undono or could
have been dono by the Joint assembly to
entitle him 10 the office, except the pure.
ly ministerial act Of declaring him elect.
cd; and inasmuCh as that must be the
inevitable result OF what had been done,
or what Is admitted by the demurrer
here, this court will treat that minis.
terial act as having been done and ad.
judged the office to the petitioner.
] do not think the admission goes 10
tho extent claimed. Tho petition sim.
ply AYERS that tho certificate and return
made out by the county commissioners,
80 opened and published, In iaCt showed
that the petitioner had tho highest mum.
Der Of votes for the Office Of Governor.
Now US matter OF fact, other parts OF
the petition and the journal OF the
House, which Is made part OF 1t, show
that only u part Of the certificates for
Governor had been opened and that
none OF them had been approved as cor.
rect or published. We must take all
the allegations Of the petition together,
and when We do 80, find that II Is i'm.
possible that the certificates and returns
SO opened and published In fact showed
that the petitioner had received 1874
votes. ] think, therefore, there Is no
foundation for this contention.
] have thus far considered the import.
ant questions presented, without refer.
ence 10 the fundamental principles lying
at the basis Of our republican system OF
government, and which were so learned.
ly and ably discussed by counsel. Ac.
Cording to these principles the case must
also be determined against the claim OF
the petitioner. The Constitution de.
clares the legislative, executive and Judi.
cial departments shall be separate and
distinct 80 that neither shall exercise the
powers properly belonging 10 either OF
the others; nor shall any person exer.
ClbG tlt puWelh VI llOlC Luun UHC VI
them at the same time, except that "jus.
tiCes OF the peace shall be eligible 10 the
Legislature" ."-Ar. 8.
Other portions Of the Constitution, us
wo have seen, not only provide that the
legislative department. Of the govern.
ment shall open and publish the returns
OF the election for Governor and declare
the result, but confer upon that depart.
ment the exclusive right to determine
contested elections for That Office. II was
admitted In tho argument In this case
that the Legislature must first act Upon
the returns Of the election for Cover.
nor, or at least that body, or some Oon.
stituent portion Of II, Is the only au.
thority by which tho returns can be
opened and published; but II is denied
by the counsel for the petitioner that
II TINT body refuses 10 declare the re.
suit OF the election, such refusal
will prevent tho person having the
Highest number Of votes from qualify.
| Ing lnd exerClsing the duties Of tho office,
ana as q OorralUfy OF this proposition,
they insist that the Judiciary depart.
ment has the power In CasO the leIisla.
tive department falls 10 discharge It's
whole duty by declaring the result Of the
election, 10 declare that result or 10 do
what is tho same In effect, adludgO the
/ Al d