Wheeling register. [volume] (Wheeling, W. Va.) 1878-1935, 1900-04-07

Court of Appeals to-day handed down
its decision in the gubernatorial con-
test in favor of Beckham, Judge Du
Relic dissenting. The other two Re-
publican judges, Barnam and Guf1ey,
handed down a separate opinion, which
differed in its reasons from the opinion
of the Democratic judges, but agreed
with them in it's conclusion. Judge
Hobson, one of the four Democratic
judges, wrote the opinion of the ma
jority of the court, affirming the de-
cision of Judge Field, of Louisville.
1t 1ecites the work of the State can
wasting board and of the contest pro-
ceedings in the legislature and all sub
seqrent proceedings and continues:
We have no more right to supervise
the decision of the general assembly in
determining the result OF this election
tran we have to supervise the action
Of The governor in calling special
session of the legislature or in pardon
ing criminal or the action of the leg
islatIre in contracting debts or deter
mining upon the election Of its mem-
bers or doing other acts authorized by
the constitution. There is no confiicJ
between the action of the State can
vass;ng board and that of the legisla-
I'm in tot
wasting board was without power to
go behind the returns. They were not
authorized to hear evidence and deter
mine who was in truth elected, but
were required to give certificate of
election to those who on the face of the
returns had received the highest num-
Der of votes. For the State board to
have received evidence to impeach the
returns before them would have been
for them, in effect, to act as a board
of contesting the election, and if they
had done this they would have usurped
the power vested in the general assem-
bly, by the constitution, for by it's ex-
press terms only the general assembly
can determine contested election for
governor and lieutenant governor. But
the certificate of the State board of
canvassers is no evidence as to who
was in truth elected. Their certificate
entities the recipient to exercise the
office until the regular constitutional
authority shall determine who is the
de jure officer. The rights Of the &c
jure officer attached when he was elect
ed, although the result was unknown
until it was declared by the proper con-
stitutional authority. When it was so
declared it was simply the ascertain
ment of a fact hitherto in doubt or I'LL
settled
The rights of the de facto officer I'M
der his certificate from the canvassing
board were provisional or temporary
until the determination of the result
of the election as provided in the con-
stitution, and upon that determination,
If adverse to him, they ceased alto
gether. Such determination of the
result Of the election by the proper
tribunal did not take from him any
pre-existing right for if not in fact
elected, he had only a right to act
until the result of the election could
be determined. We are unable, there
fore, to see how this can be distin-
guished from any other legislative
action, taken in matter over which
the constitution has given the legisla-
ture exclusive jurisdiction, and we are
therefore Of the opinion that the court
is without jurisdiction to go behind the
record made by the legislature under
the constitution. Such a record seems
to us entitled to every presumption
in its favor which the records of this
court, kept under its supervision,
would be entitled to receive at the
hands of the legislature, in a matter
befit. 1t is also argued that the con-
test board was not fairly drawn by lot,
that certain members of the board
were liable to objection on the score
of Partially and that, therefore, this
board was not properly constituted. If
any of these objections were we'll
founded, the general assembly had
power to take such action as was
proper in the premises. 1t does not
appear that any of the objections urged
were presented to the general assem-
bly,. but If they were and it refused to
make a correction, it must be pre-
sumed that it had sufficient reasons for
its action. Besides, the board was
only a preliminary agency to take evil
dence and report that fact to the gen.
eral assembly. The assembly itself
finally determined the contest.
Judges Burnam and Guffy, Republi-
cans, while concurring IN the courts
having no jurisdiction, dissented from
the reasoning. Judge Burnam's' sepa-
rate opinion says:
TT is hard to imagine a more fla
grant and partisan disregard Of the
modes of procedure than is made
manifest by the facts alleged and re-