Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1889-03-12

Attorney General Caldwell, on behalf Of
the defendant, Governor Wilson, made and
elaborate the following points among
others:
L. The question for decision is whether
[ this Court can reverse and snnul the deter
limitations Of the Legislature in it's con
sirucliou of the Sd section Of Art. VII OF
our Constitution.
TIE Legislature has decided that the
proper construction Of the section required
them 20 postpone the declaration Of The re-
/ ,tH OF the election fer Governor until the
determination Of the pending contest.
We contend that such is the correct in
/ terpretation of the Constitution.
The 6rst sentence Of the section imposes
duties upon the Speaker Of the House OF
DELEGATES. who shall" says the section,
Immediately after the organization Of the
House and before proceeding to business,
opsn and publish the same " meaning the
returns from the several counties, in the
presence Of a msiority Of each House of the
Legislature, which shall for that purpose,
assemble in the Hall of the House Of Del
sgates The duties are specific, and they
sra 10 be performed by particular officer
and before the Joint assembly Of the two
Houses.
Very different is the language Of the
next section, which reads as follows:
"The person having the highest number
of votes for either of said offices, meaning
Governor, Auditor, Treasurer &c shall
be- declared duly elected thereto; but II
TWO or more have an equal and the highest
number Of votes for the same Office. the
Legislature shall, by Joint vote, choose
one of such persons for said Office.
The last sentence carefully refrsins tiOm
stating who Is to make the declaration Of
the election, !, is puposely silent upon
/ this question. because 10 was not intended
to compel such declaration by the Legisla-
ture alone IN an eases. When the people
ratified this Constitution the statute law
provided for the settlement of contests as
/ to the offices of Auditor, Treasurer, Super
intendent OF Free Schools and Attorney
General by the determination Of a special
Court. while ina the case Of q contest for the
office OF Governor the Legislature, then as
now, by Joint vote determined the result.
Now while the Legislature makes the de-
cleraiiOu of result 40 once, where there Is
no contest. ID there ia q contest % TO any
of said or ces other than Governor the de-
claration may bs authorized by the law
making power 70 De made by some other
tribunal OF person.
1.-THE Constitution intended that in ali
cases the declaration was 20 be made as
soon ss the Speaker had opened and pub
Hshed the returns, il would not have
placed the subject OF the declaration in 4
separate sentence, and IL would have
named the Speaker IS the person to per
form that duty, as carefully as It epjoined
other duties upon him by the first sen
tencs Of the section.
lit had heen intended that the Lseisls
ture was TO make he declaration in all
cases without deciding who bad the high
est number Of legal roteS, 10 would have
stated, no least, nat tire Legislature was
topsriorm that duty. But read in the
light Of OF existing legislation at the time
of the adoption of the Constitution, We
must conclude that the tribunal or person
who should make the declaration was not
pointed out, because each declaration
might in the case of "a contest for Auditor,
for instance, be made, not By the Legisla-
ture, but by any persons the Legislature
might see it TO authorizs, or by the trial
Court in the determination Of contest If
tire law makers so willed.
We insist, therefore, that where con-
test is Pc ding the intent Of the COnstitu-
ton is that the declaration as to the person
receiving the highest number of votes is
o1ly to be made after the determination 10
the contest case.
. When the Constitution speaks OF the
highest number of votes, ID means legal
votes, and the question who has the high
est number Of legal votes when there is a
contest. can only be solved ia the trial OF
such coatest Stale vs.. johnson, II Ark,
1l: ex usrte Smith, 8 S. c., 1876; Gsvan
VS.. Jacksoc, 30 Ark, 553; Cooley on Con.
lin, 7s7 ct seq. McCmry on Elections,
3i7l
3. The sole power to determine who is
Governor is in the legislature, State vs.
Baxter. % Ark 131; Royce vs. Goodwin,
% Mich. 1856; State vs. NARROW 10 Ohio
st. ia: Cooley on Con. Linn. 7S2.
4. The election of a State officer in our
State is not complete until the result is de-
ciared. Such declaration is an absolutely
Indispensable requirement Of the COnstitu-
ton. Paine on Elections, 625; Peoples
vs. North, - \. y. l24; People vs. Girls
ssy, 81 y. Y. 6l6.
5. All matters relating to the conduct Of
elections, returns, canvassing votes, de-
claring result, etc, involve the exercise of
the political power. Collins vs.. Knoblock,
20 La An, DOB; Rogers Va. johns, IL
Texas, 800.
Where provisions Of doubtful interpreta-
ton. contained in the Constitution, in
relation 10 the exercise Of the political
power Of government, have been construed
hv the Legislature. the Courts viii follow
the construction of the Legislature. Peo-
pie vs.. Supervisors Of Ia Sale county, 100
Ills, 49,
Section 9 Of Art VII Of cur Constitution
is addressed TO the political department OF
the State Government, j. g: the Legis
lature, and not TO the judicial 1t
relates to the exercise Of political power.
m the meaning Of the second sen
tsuce of the section is doubtful,
IL has been construed by TIE
department OF the Government to which it
is addressed, and this court, if it allows
TIE prayer Of the petitioner, will, 1t is re-
specially contended, be taking upon itself,
indirectly, the functions Of iH coordinate
department Of government and reversing
the determination of its political depart
nent in the construction Of the COastitu-
ton in the exercise of powers and perform
aDcs Of duties purely political.
There is no necessity that the petit
TONER should he placed in possession Of
the powers, &c, Of Governor before the
determination of the contest. The office
is now filled by Governor Wilson, who
holds until his successor is duly declared
elected snd qualified. The public inter
esls 90 not suier Constitution Of ". Va,
sec. of Art. "; Code of W. Va, sec. ,,
ca. z; Lawhorne exparte, IS Graft, 50;
City of Wheeling vs. Black, % W. Va,
276
Gov. Wilson'S Argument.
In his argument Governor Wilson said
''I have no personal interest in this case.
| II had. I would not he here. / regard 1t
my duty to tske the PCS ton I have II
] this Court ehnul1 decide nlRiust me l shall