Burke v. Supervisors of Monroe County

4 W. Va. 371

• Court: West Virginia Supreme Court
• Decided: January 15, 1870
• Status: Published

Opinion

Brown, President.

This was a rule in the nature of a writ of certiorari, and also to show cause why a mandamus should'not be awarded. The former to revise the proceedings and reverse the order of the board of supervisors of Monroe county, setting aside the election at which the plaintiffs claimed to have been duly elected to the several county offices; and the latter to compel the said board to declare the election of said officers, as shown by the election returns certified by the respective officers conducting said election, and grant them a certificate thereof respectively. No objection was made to the process in the court below, and it is too late to claim in the appellate court that it is not a proceeding by certiorari in due form, and the rule for the mandamus must be regarded as only ancilliary to the writ prayed for in the petition, which was the writ of certiorari.

IJpon the rule the record and proceedings of the board are brought up, together with the polls and tally lists, showing the number and names of the persons voting, the persons and offices voted for, and the votes for each, with, the oaths and certificates of the officers respectively conducting the election, and the answer of the board sworn to by their clerk, to the said rule.

"Upon inspection of the proceedings it appears that there are four more names of persons voting than there are ballots counted or returned. That four persons whose names are italicised in the list, voted, who were not entitled to vote, and on discovery of the fact, four ballots were taken from the ballot box to correspond, but it was possible that the four ballots withdrawn may not have been the ballots of the said parties not legally entitled to vote; and this is the only irregularity in the said election alleged on the part of the board, and wTas the sole ground on which the board set aside the election as to the petitioners.

The circuit court held the election valid, and the petitioners duly elected as appeared by the said returns, they having the highest number of votes respectively, and that they were in law entitled to certificates of election accordingly, and also to a mandamus to compel the said board to issue such certificates to the parties respectively entitled. And in this ruling the circuit court was unquestionably right, because it was a proper case for the supervision and control of an inferior tribunal by the said circuit court, and necessary in the case to secure the rights of the parties no less than of the people. The People vs. The Board of Police, 39 N. Y., 506; The People vs. Board of Pilots, 54 Barb.

And the alleged irregularity in the election as set forth in the return of the board to the certiorari was not such as in fact, nor in law, would be sufficient to invalidate the said election, according to the provision of section 28 of the act of November 13th, 1863. Session acts, p. 128.

But the court further held that the resolution of the board setting aside said election could not be questioned, because no objection had been taken to the same at the time, by any of the petitioners or any one else. But in this the court erred, because there could be no obligation upon the officers elected nor upon the voters, who are also parties interested, to dance attendance on the board in order to make objee-tious, respectively, upon the hypothesis that the board would set aside the election without notice to any concerned, and without lawful cause.

This being the only error in the cause, the judgment of the circuit court ought to be reversed, but without costs to the plaintiffs in error; and the cause remanded to the circuit court of Monroe to be further proceeded with, in conformity to the views above stated.

The other judges concurred.

Judgment reversed.