The Fairmont West Virginian. (Fairmont, W. Va.) 1904-1914, 1908-11-20

erips the opinion Of the court says
en pays 27l, Il seems to me me Leg
tslauTs ri uded T. NE. fer TIE SAKE
q speedy md final de ernlination d
court ot last ort ae Only writ
ayatlable under the circunistance
inandamns asa writ Il review Is cpe:
rate as a writ 81 certioraTt taking cog.
ntzance Of all questions arising Ia
the case. 4 the matter De one IN ma.
ture at ali renewable on esrtiorari,"
Judge Brannon adds. Il must be
frank 10 say that in this hastily pre-.
pared opinion have mot made 4 case
entirely free from ali doubt in my
own mind, but 1t seems better to me
than would a csntrary conclusion"
This case was decided October 2s,
1896, About two years later, D4cem.
Der 10, 1898. In the case OF Hlbbs vs.
cayton. As W. Va. S7s, this statute
was again discussed. and the ruling
in the case Of Mafcum vs.. Commits.
stons approved. Again about three
years later, December IA. 1901, in the
case of Roberts VS.. Paul, Judge, SO w.
Va, SIS, the court takes the same
view OF this statue. In this case
tRoberts Va. PaulE in syllabus 2 aft
er saying that "mandamus will not lie
to control the exercise OF any court.
board or officer when the act is eithe.
judicial or quasi judicial In its ma.
ture." Then there is added to this
syllabus these words. "This does not
apply tc election cases."
So. II may now be considered as
the settled law of this state-that
Sec. 50. Oh of the Code aas so
enlarged the scope OF tHe writ Il man.
damus in election cases, as to make
it applicable to such matters wheth.
er ministerial or judicial; in other
words giving to mandamus in .elec
tton matters, the appellate function
of certeorarj. Unless we bear this
in mind we shall be confused and per
haps led into error in determining the
powers of the court In mandamug
cases. We must also bear in mind
that this statute does not change the
rule for ascertaining what is a Judi.
cial aud what ministerial act. It
simply enlarges the scope of man.
damus in election cases.
The court has this authority to hear
the case at bar whether the acts com
planned of be judicial or ministerial.
1t is clear that the board Of canvass.
ers in passing on the questions of
whether or not the p1ll books. tally
sheets and certificates laid before
them are genuine. and are the returns,
and are snbstan TALLY in form, and
having them corrected and put in form
If they are not so, are judicial acts.
The action Of the board OF canvassers
could not be considered or reviewed.
by mandamus. unaided by statute. If
errors were committed 10y the board
they would have to be corrected by
certeorarl. Under Sec. 80 Of Oh. 3
of the Cole as amended by the Acts
of 1893, the same relief may now be
had by m2ndamus. This is wise
provision. Certeorari Is an appel
late remedy and necessarily tedious.
it often happens that before the cases
could be finally heard, the term Of
Office expired. Such was the result
in several cases which were appealed
from this court to the Supreme
Court. It may happen that justice
long deferred is justice denied.
We will treat this case therefore az
though It were case before the
court On certeorarI. Does the pcti.
lion show on its face that the hoard
of canvassers has committed any er.
ror to the prejudice of the petitioner
for which he is entitled to relief upou
a writ of certeoreri?
The petition does not aliege and
there is nothing in the proceedings
to indicate taat the canvassers are
reaching wrong conclusion as to thu
result of the election. The whole
trouble seems to be that the canvass.
ers are proceeding by one method ana
the petitioner wants them 10 proceed
by another method. This petitioner
having been a candidate voted for at
this election has an interest In the
canvass of the votes. He has the
right to require the board Of eau
vassers to ascertain and declare tie re.
suit of the election. The canvassers
when Interrupted by the alternative
writ of mandamus in this case had
not completed their duties. TIE pc.
titioner does not complain that they
are not canvassing the votes. or are
not going to declare the true result
But he complains OF the manner In