Richmond dispatch. [volume] (Richmond, Va.) 1884-1903, 1896-11-29

ers though they may have adjourned sine
die-they are not functus Ofiicio until they
have properly performed their duty. State
vs. BloNham. lS Florida. -.
The Commissioners Of Buckingham
county have not properly performed their
duty untIl they had forwarded the abb
stract showing the actual result. The
forwarding Of false return was not
proper performance Of their duty.
Mandamus is the appropriate remedy 10
compel a board OF canvassers TO do their
duty. In every well-constituted governs
ment the highest judicial authority must
necessarily have o supervisory power over
all Inferior or subordinate tribunals. mag
istratcs. and all others exercising public
authority. If they commit errors, II viii
correct them. n they refuse TO perform
their duty. 1t viii compel them-in the
former case by writ OK error; in the latter
by mandamus. Ibid, n: Hen. q NUM-,
/; Iowa. 100, 392 and other cases cited.
SHOULD CERTIFY CORRECTLY.
The Commissioners Of Election OF Buck
ingham county were required to certify
correctly the result Of their canvass. and
when they certified a given number OF
votes for Jacob Yost. and not for j. Yost.
they had not done their duty-they had
not certified the true result as ascertain
ed by them. and thereby had failed to do
what the law required Of them. The com
missioners, by placing the votes cast for
J. Yost TO tho credit Of Jacob Yost just
as effectually deprived j. Yost of the
votes as II they had counted them for
John Brown or had not counted them at
all.
CONTRARY TO LAW.
In State VS.. Lawrence, Kansas. %, the
Court said: Until they 0he election Off
cors) have performed the exact duty i'm
posed upon them by law they must be
considered I'm default. and in a case like
this II would be a legal anomaly TO allow
the examining board to rely upon the
fact that they had issued the certificate
of election to a party who had not re-
ccived the largest number Of votes. con-
trary 10 an express provision Of law, as
n sufficient reason why they should not
be compelled TO perform an imperative
duty High on Extraordinary Legal
Remedies, section 60, page go note.
Here it would appear that the election
officers had issued a certificate Of cleo
tion 70 a party who had not been elected
yet they We're required to perform their
duty by declaring the true result. In the
case under consideration the commits
sioners of election had failed equally 10
do their duty I'm making their original
return by certifying that Jacob NOst,
instead Of j. Yost had received 1.l3
votes. 1t was their imperative duty TO
certify the result as they found 1t upon
the canvass Of the precinct returns. and
until this is done they must be con-
sidercd IN default" -
Now assuming from the authorities
cited, which have been hastily scanned
that there can be no question that the
court would compel the commissioners
Of election Of Buckingham county 10
certify a true abstract OF the vote cast
in that county. If they had not already
done so, this respondent maintains that
mandamus Will not lie against said COM
missiOners for the reason that they are
not in default. and II not I'm default no
writ can issue against them. II a re-
turn is false and the commissioners can
be commanded TO 'Orrect IL. cannot the
commissioners correct IT without being
commanded TO do il?
The commissioners have already by
their certificates made the correction and
certified the true result-they have hled
and had previous 10 the date of the petl-
ton for mandamus filed with the Sec
rotary Of the Commonwealth a corrected
abstract. and this abstract was laid be
fore the Board Of State Canyassers by
the Secretary Of the Commonwealth, and
rejected by said board.
This certificate is I'm effect that the
court would require. If they had remained
I'm default IL may not be In form techni-
cally correct. but II IS sufficiently explicit
for the board 10 clearly understand lt
besides the statute prescribes no form,
and If II did Il would be directory merely.
SHOULD CONSTITUTE POPULAR WILL
I, Is a well-settled rlle that in con-
STRUNG election statutes they viii be con-
strued in the interest OF the voters, and
a.. IT, rrrff1 70, owe
technically will be allowed 10 deprive
the voters Of their suffrage. The mode
and manner prescribed Tor conducting
elections and ascertaining the result viii
be construed as directory. as FAR as posi-
BILE to the end that injustice may not
DO done to the voters or the public by
the inadvertance or ignorance OF election
officials.
II is a startling proposition that, be
cause the statute provides that the Com
nissioners Of Election shall meet and
canvass the returns. and then forward a
certified abstract Of the result TO the
Secretary OF the Commonwealth, that
they cannot. after discovering a mere
clerical mistake, legally certify that the
mistake was made and forward correct
cd returns. The proposition is against
political ethics and popular right. The
contention that, when officials whose
only legal function IS simply 10 certify
the exact vote as shown by the returns.
have. either dosignedly. innocently. acct
dcntallv. or Intentionally. made false
return. that is Is beyond their power 20
correct IT. is contrary 10 the whole spirit
of our election law. which attempts al
WAYS to throw it's shield around the bal
lot. and not around the wrOngdoing, ne
diligence. or carelessnoss of election Of
hc'als.
This respondent, while conceding 10 his
honorable colleagues the purest motives
I'm their action. yet, respectfully insists
that they erred I'm their judgment IN not
counting the amended returns from the
county Of Buckingham, and in declaring
that H. d. Flood. and not J. Nost was
duly elected a representative In Congress
from the Tenth Congressional District oi
Virginia at the election had on the 80
dav of November 1896; and that. mas
much as the Commissioners OF Election
of buckingham county have already done
what the court would have required them
70 do if in default and the Board Of
state Canvassers have before them
amended returns from said county, giving
the vote as actually cast, the court
will direct said board to count said vote,
and award the certificate of election 10
J. Yost. as the duly elected representa-
tive in Congress from the Tenth Con-
eressional District OF Virginia.
The Reply of Mr. YOst.
Counsel for Mr.. Yost will present an
elaborate printed brief 10 the Court OF
Appeals tomorrow morning, which, in
addition 10 the main questions raised
I'm his petition for mandamus, discusses
Il I'm the light Of Federal questions over
which they claim the United States courts
have Jurisdiction. upon the ground that II
affects the composition OF the national
legislative body.
Amnne the nrincipal cases relied upOn