Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-02-10
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/ the very crown ana glory OF IopuoIiO"h
/ institutions. and the only guarantee Of
their stability and perpetuity. The OBJ
/ iect Of the judicial tribunal engaged IN
deciding upon 4 contested election, Is
not So much to determine the private
rights of the parties as TO decide for the
people whom they have elected in that
particular election, according To the
very right Of the case, and the prlncl-
ule Of Justice. Hence we find that at
common law. amendments to the notice
are permitted only to further the ends
of justice, and TO promote true ana
impartial decision according TO the evil
dence.
Mr.. Paine. i'm his work on elections,
Section $40. thus defines this common
law right Of amendment: "When petl-
ton is defective in form or substance
il may be amended. if the application be
made at the earliest possible opportuni-
ty. Such an amendment is allowed at
common law, by virtue of the power
which a court of record possesses TO al
low amendments in furtherance OF pub
lie Justice. When there is u charge of
fraud buy no averment showing how the
NlIIAu MOulu dlfNb Allf iNNttANT Wv 49,
may be remedied by amendment. The
Inquiry involved in a contested election
case is one which deeply concerns the
public. The question is broader than
the mere claim of an individual To the
office i'm controversy. 1t is whether the
popular will has been or is about To be
defeated or thwarted by mistake or
fraud. If, therefore, the statement ol
the grounds of contest lacks clearneSs
and distinctneSS of allegation, alwa Us
desirable in judicial proceedings, 10 is
not, on that account, percmtOrily DIS
missed; an opportunity TO amend should
be afforded, 10 the end that the points
lin controversy may be developed, and
the merits of the case determined. 1t
may become the duty OF the Court, In
the progress of the investigation, TO pro-
tect the parties from surprise; aud
should material proof be offered, which
reasonable diligence should not have an
ticipated, an opportunity should be az
iorded to meet 10. The public interests
imperatiyely require that the ultimate
determination of the contest should in
every instance, if possible, reach the
very right of the case
To the same effect see the recent
recent work of Mr.. McCreary on cleo
tionS, Section ll9, see also same author
Section 3OS.
These principles have received the
sanction Of this Court in the case OF
Halstead vs.. RAIDER, 27 w. Va, SO6-So9.
This case (lIalStead vs.. RAIDER, cites
with appreciation KueaSS' ease, Brightly
Lead case, on elections. page 33s.
Upon turning 10 that case. reported IN
Second Parsons 553. (Phila.) we find a
very clear recognition of the principle
that amendments are reducible TO no
certain rule, but that each case must
be left 20 the sound discretion OF the
Court. aud that the best principles seem
to- be- that an amendment should, or
should not be permitted 10 bee made as
would best tend To the furtherance ol
justice"
In the exercise of this sound discre-
ton the Court should always have in
view the yiudication of the ballot, and
the calculation of truth.
Applying these principles 90 tins caSe
the question IS, did the County Court
wisely exercise It's discretion rs a Judi
cial tribunal in refusing TO permit the
respondent 10 amend his petition by
striking therefrom the names of two
voters whose right to vote he had i'm
peached and who, as appears by the
record and the finding OF the County
Court had voted for opponent? 1t
seems TO me too plain for any elabora-
tion, that, keeping in view the main
duty. which was To decide the contest
upon its merits, aud the very right OF
the case, the County Court properly re
fused % permit the conteStce TO with
draw from the arbitrament OF the Court
"a proper decision As To the right of
Davis and Anderson TO vote, and a
proper determination aS to which can
didate received their suffrage. ! am
Of opinion, therefore. that the County
Court exercised It's discretion upon
sound principles, and In accordance
with tie rules of the common law, aud
the requirements Of public Justice. The
Judgment OF the Circuit Court reyerS-
ing the action Of the lower tribunal
must bee reversed.