Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1890-01-17
AGAINsr TECHNIcALITIEs.
The Broad Principles on which the Com
..tt.a. arfaa

The Broad Principles on Mnich tho SoH-
mittee acted.
The cAss as il came before the commit
tee is stated as follows: Preliminary to
the consideration Of the case on its merits.
counsel for contesiee appeared before the
committee and made a motion TO quash
the original notice and the additional or
supplemental notice Of contest given by
contestant 10 contestee in this case, and
also to qussh specifications Nos. "a and
2s Of said supplemental notice; and fur
ther moved to suppress all the depOsitions
taken by contestant after the 2lst day OF
March. 1Ss9. The contestant, by his
counsel, mo sed to qussh all Of the return
notices given by oOntestee to contestant
and each specification thereof. These re-
spective motions were severally argued by
counsel for contestant and contestee.
The grounds assigned, by counsel tor
contestee, IN support of their motion to
a lash said notices OF contest areas 1t ap-
piles to the first of said pOtices-that, II
all the allegations in said notice were
proven to be true. the result of the elec-
tion would not be changed in favor OF con-
testsnt, nor would il render said election
so vague and uncertain ss TO make it i'm
possible TO determine what that result was.
Applying the strictest and most technical
rules of pleading, this contention of coun-
sci can not be sustained, and we therefore
overrule said motion as it applies 10 said
first or original notice. 1t was argued In
support OF the motion to quash the second
or supplemental notice OF contest, that the
same ought TO be quashed because it was
served after the 18th day of March, 1889,
which would be the end of the time fixed
by the statute to take dispositions in cases
of gubernatorial contests. This brings us
to consideration of the question, whether
or not the Joint Assembly had the power
of authority to pass the resolution adopted
by that body on the 7th day OF February,
1889, extending the time for taking depo-
sition in this case?
THE ASSEMBLY WAS COMPETENT.
The report theu discusses this question
at length, and quotes the constitution and
law of the State bearing on its construction,
as expressed as follows: Following these
authorities, we are forced to conclude that
the act of the West Virginia legislature
limiting the time for sking dispositions IN
this case is directory, not mandatory; and
If we looA to the record of the Joint AS
sembly with reference 10 its action in dis
posipe of the election returns from the va
rious counties in the State, as to
the Office of Governor, we are reminded
that very large proportion of the time
fixed by statute for taking proof in this
case had expired before it was Determined
by that body whether or not trial OF this
case was necessary. Certain 1t is that, oy |
the terms of the resolution adopted by the
Joiut Assembly, on the 7th day of Febru-
ary. 1889. the time for taking dispositions
was extended until the 10th day Of May, |
1889. The Joint Assembly being the court
with exclusive jurisdiction to try the case, |
the contestant was authorized to assume
that il would consider his proofs taken
under its own order. In our view, justice
reouires this be done. 1t seems to US,
howeyer. that contestee ought not to be
uermitted to take advantage OF this POSI-
ton, ev.n were it tenable; since ne nim-
self occopie6 the entire time, as EXTENDED
by the legislature, and some days there,
after, in taking his evidence IN this case.
TECHNICAL ALLEGATIONS oUAsHED.
The succeeding chapters OF the report
are devoted to discussion Of the law OF
contested elections, and statement OF the
principles which governed the msJority OF
the committee in arriving at their conclu'
siops. The brosd principle of even Justice
3 laid down, to the effect that when the
statutes governing such cases were OF suen
character as to allow the committee the
exercise of judicial discretion, no vote
should be cast out on technicslity, unless
injury TO one or the other of the candi-
dates had resulted from the technical vlo-
lation of the law. A great number OF
technical specifications were presented IN
Gen. Goff's return notice. As matter OF
selfpressIvation, Judge Fleming wss COM
pslled TO include similar specifications IN
his answering notice. Several Of these
al. ctsd the votes of whole precincts. Ihey |
were ss a rule based on the charge that the
votiug places bad been changed without
proper notice; and on this charge votes IN
at least a dozen different counties were
brought in question. In sustaining a mo-
ton to quash one of these specifications,
the committee says:
1T is alleged in said specification that
the election in said precinct was not heid