Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1891-02-10

John Ralston and John l.. Meyer
were opposing candidates for the office
Iof Assessor OF Brooke county at the
general election held on the 9Th day of
/ November, lSss. According 10 the can
vass OF the proper officials Meyer re-
ceived eos and RalSton 50 votes. and
I the County Commissioners gave the Ger
I uiicate Of election % Meyer RalStOn
contested and served notice in writing.
giving list o., the votes lac intended To
dispute and of the rejected votes for
which he would contend, with aver
mentS that those ia the first list voted
I for Meyer aud those in the second list
would have voted for himself. A coun-
ter notice was served by Meyer, in
which was found the names of one
I Ashby Davis, and one William Auder-
son, the averments as TO them being
substantially, that for reasons stated
they were not qualified voters az the
time Of the election; that they voted for
Ralston. and that their votes were
counted by the Commissioners. RalstOn
did not include these names in his no
tice, nor was there any amended or sup
Elemental notice.
The County Court proceeded 10 hear
and determine the case, passing upon
the qualifications aud disQualiiicationS
of the voters named in the notice and
counter notice. When the respondent
had proceeded at considerable length in
the trial of the voters included in his
counter notice, he asked permission TO
amend his counter notice, by striking
of of his list of the votes therein con-
tanned including the names OF said Davis
aud Anderson, with the allegations re-
garding each. But this motion was OBJ
iectcd 90 by the contestant ON the
ground that the persons named, ''arc by
the contestant claimed and admitted 10
be- illegal voters is stated IN the notice,
but voted for the cunteStce, j. l.. Meyer
as he the contestant claims. The
Court sustained the objection and over
ruled respondents motion. Subsequent
d. the Court at the instance of contest
amt. took testimony touching the right
of these persons 20 vote, and held that
they were disqualified Ia the final or
der after recitiug that it appeared from
the minutes that they had in fact voted
for respondent, the Court deducted
their votes with seventeen others from
the whole number cast for respondent
40 said election, added one vote, aud
deducted six others from those east for
contestant. and then announced the re
suit OF their decision as follows: Rails
ton $50 votes, Meyer go.
Meyer, the respondent, appealed To
the Circuit Court, which reversed the
ciSion of the County Court, holding that
10 was error 10 deduct the votes OF Davis
and Anderson and declaring the true re-
suit 90 be-: For RalStOn, $50 votes; Mey-
er, Isl.
From this Judgment Of the Circuit
Court writ of error to this court has
been allowed.
Tho briefs of respective counsel IN
this ease dled before this court are mod
els of pcrspicuity ana sound legitimate
argument. They have eliminated all
impvrtineut matter, and reduced the
controversy down 20 its proper and mar
row limits, and have been Of great as
sistance Co MS ia deciding the case.
The only point at issue between the
parties is whether the County Court
should have permitted the respondent
or contestee To amend his notice. by
striking out the names OF Davis and
Anderson. whose votes he had impcached
rs Illegal. and who. rs sworn IN his ALL
davits appended 10 his notice, had
voted for his opponent.
In contested election cases two classes
of amendments TO the notice of contest
hla One
statutory: the other such rs pertains 20
/ the procedure under the general rules
/ of the common law. The statutory
amendment is found in the second sec
tion Of the sixth chapter OF the Code,
which is as follows: III new facts be
discovered by either party after he has
given notice rs aforesaid, he may, with
/ i'm ten DAYS after such discovery, give an
additional notice 90 his adversary, with
/ the specifications and affidavit pre-
scribed I'm the next preceding section. y
/ This amendment, il may be observed Is
/ founded upon after diScorOCt JdciS,
which have come 10 the knowledge OF the
party after his original notice was given.
I'm the record now before us there is
nothing whatever 10 indicate that the
|contestee based his motion upon newly
acquired evidence. II is certain there
/ fore that the amendment asked FOR at
the hands of the County Court was not
within the statutory provision ON the
Subiect of contested elections.
Let us inquire whether it was author
I lied by the spirit of common law pro
recdure. whereby amendments in plead
/ nrs. which are calculated TO promote
the ends of Justice, may in the discretion
/ of the Court, DE permitted.
Fairness. purity and freedom of cleo
lions are essential 70 free government,