Loomis v. Jackson

6 W. Va. 617

• Court: West Virginia Supreme Court
• Decided: January 7, 1873
• Status: Published

Opinion

Woods, Judge.

In this case, the respondent James M. Jackson who' had been voted for, as a candidate for the office of judge of the 5th judicial circuit, at the election held therein on the 22nd day of August 1872, having been duly certified, by the several boards of supervisors of the counties composing the said circuit, to have received the largest number of votes, was proclaimed, by the governor of the state, duly elected to the office of judge of the said circuit.

The contestant George Loomis who had also been a candidate at the said election for the said office of judge, gave notice to the Respondent of his intention to contest his election to said office; setting forth three distinct ground of contest, with fourteen specifications thereto annexed; which were duly served upon said Respondent on the 5th day of October 1872. '

The Contestant, claiming to have discovered new facts-after he had given his original notice and specifications, caused to be served upon the Respondent a new notice, with four additional specifications, on the 9th day of November 1872; and afterwards, on the 26th day of November 1872, he caused to be served on said Respondent an additional and supplemental specification, “as an appendage to his former specifications.”

The Contestant presented to this Court a petition, ¡addressed to “His Excellency, J. J. Jacob, Governor of the State of West Virginia,” of which the said original notice and the fourteen specifications thereto attached were made a part; he also presented said new notice, with said four additional specifications, and the said supplemental specification; all of which' were filed, subject to all just and legal exceptions.

The Respondent thereupon moved the Court to quash the said petition, notices and specifications, for errors •apparent upon the face thereof, and because the said new notice and specifications were not served within sixty d'ays next after the said election. After the Court had sustained the said motion to quash said notices and specifications, the Contestant moved the Court for leave to amend said specifications and notices, by filing, as parts thereof, copies of the certificates, made by the several boards of supervisors of the counties in said circuit to the governor, of the result of said election for judge in their respective counties; which motion the Court overruled.

The fact that no case has ever before occurred in the history of this State, in which the election of a judge of the circuit court has been contested, in the manner prescribed in chapter 6 of the Code of West Virginia, clothes the case at bar with peculiar interest, not only to the distinguished gentlemen immediately interested in its result, but to all the people of the State.

Presenting for judicial construction, many important questions touching the requirements of the 3rd and 6th chap ters of the Code of West Virginia, in conducting elections, and in making returns thereof; the Court approached the consideration of them, with an earnest and anxious desire to reach such conclusions, resting upon principle and authority, as will secure to the qualified voters the fair expression of the popular will in every legal election; at the same time, prevent the defeat of that will, thus expressed, by the errors, negligence, ignorance, or evert fraud of the officers or agents conducting the same.

Among the questions presented, are : In what manner is the matter of a judicial contest inaugurated? To whom must the petition be addressed ? Is the petition filed in this case a sufficient petition ? Do the provisions of the 6th chapter of the Code of West Virginia, authorize the contestant to give to respondent new notices of additional facts discovered after the expiration of sixty days next after the said election ? What are sufficient specifications ? And can the specifications be amended during the trial, by the addition of new and material allegations ?

The novelty, as well as the importance, of these and other questions of law arising in this case, must be my apology for presenting the reasons that have brought my mind to the conclusion hereinafter stated.

The first question naturally presented is, what is the extent of the jurisdiction of this Court? By reference to the 13th section, chapter 6 of the Code, it will be perceived that its jurisdiction is limited to “decide impartially according to law and the truth upon the petition, returns and evidence to be submitted to it, and to hear and determine the case presented in such petition, and to certify its decision to the governor.”

This jurisdiction necessarily" draws to itself the right to hear and determine all questions touching the regularity and legality of the acts of the officers, or persons conducting the election, and making and certifying the returns thereof. It may be, and upon, a proper ease made, it is required to re-examine all, or such parts of the'election returns in said circuit, as it may deem necessary, and, if errors be found therein, to correct them according to the law and the truth. While its authority is thus ample, it will not fail to remember that all officers and other persons engaged in conducting said elections, or in making the returns and certificates of the result thereof, as required by law, are, in this Court entitled to the legal presumption that they acted in accordance with the law, until the contrary shall be specifically alleged, and fully proved.

The motion of Respondent to quash, brings up for consideration and determination the legal questions arising upon the face of the said petition, notices and specifications, as well to the legal sufficiency thereof, as to the right of the Contestant to rely upon his said new notice and specifications, given to the Respondent after the expiration of the sixty days next after the election, and after the service of the original notice and specifications.

First in the order of inquiry is the question — does the 11th section of chapter 6 of the Code of West Virginia, authorize the Contestant to give to the Respondent the new notice and specifications, of newly discovered facts, filed in this case?

The provisions of the said 6th chapter of the Code, must settle this question, it is merely one of construction

It is evident that in every contested election provided for in the 11th section, it was intended that it should be commenced and ended within a comparatively short space of time; and that it was not intended to permit an incumbent to hold his office much beyond the limit of its constitutional term, and thus enable him to carry on a protracted and dilatory contest with the person certified to have been elected to that office.

It is provided by section 2 of chapter 6 of the Code, that a contest with a member of the house of delegates, must be commenced within twenty-one days, and with a member ot the senate within forty days, next after the election; and by the 11th section it is further provided, that a contest with a governor, secretary of the state, treasurer, auditor, attorney general, judge of the supreme court of appeals, or of a circuit court, must be commenced within sixty days after the election. In each instance, the period within which the contest is to be commenced is enlarged in proportion as the party whose right is to be contested, was elected by the voters ° . from a small or large district,

A party who desires to contest the election of a judge 0f a circuit court, is required to give notice, with specifications, to the party whose right is contested wthiin sixty days next after the election; the return notice of the respondent must be given to the contestant within thirty days after the service of his notice upon respondent; and the taking of all depositions must be concluded within forty days after the service of said return notice. “In other respects, the regulations contained in chapter 6 respecting contests for seats in either branch of the legislature shall be observed, as far as practicable.”

By section 4 of chapter 6 of the Code, it is expressly declared, that, in contests respecting seats in the legislature, “If new facts be discovered by either party after he has given notice as aforesaid, he may give additional notice or notices to his adversary, with specifications and affidavit as above prescribed.” The contestant in a judicial contest, needing all the time allowed by the law to collect the facts of the case, may postpone the service of his notice of contest until the sixtieth day after the election; and the the respondent may'in like manner and for a similar reason, delay the service of the return notice until the thirtieth day thereafter. To deny the contestant the right to serve a new notice of facts discovered after the service of his original notice, and after the expiration of said sixty days, might place him in a very great degree at the mercy of the respondent. The new facts or some clue to the discovery of them, may, for the first time, be disclosed by the return notice itself, and to deny the right, under such circumstances, might be equivalent to a total denial of justice to the contestant.

As all the depositions are required to be taken within forty days next after serving the return notice, and as section 8 of chapter 6, declares that neither party shall have the benefit of any deposition, unless taken upon reasonable notice to the adverse party, it cannot be perceived how material injury or injustice could thereby be done to the respondent. I am, therefore, of the opinion that new notices with additional specifications of new facts, discovered after the service of the original notice and specifications, and after the expiration of said sixty days, may be given by the contestant within the forty days allotted for taking the depositions — subject always to the limitation necessarily implied in sections 5 and 8, of chapter 6, requiring that all depositions in support thereof, shall be taken upon reasonable notice to the adverse party. But in every such instance, it must appear by proper averments that the facts relied on to authorize the giving of the additional notice or notices, are new facts; and were discovered after the service of the original notice ; and that they are such as the party could not have learned at that time by the exercise of due diligence; and that they are also material and relevant to the .main question in controversy.

The petition filed in this Court, is addressed to the governor of the state; and sets forth" the grounds of contest; and exhibits, as part thereof, the said original notice and specifications; and prays that a special court may be convened according to the 13th section of chapter 6, for the trial thereof; for the production of the ballots, poll books and inspectors certificates for the various counties; and for general relief, in accordance with said notice.

The petition should have been addressed to this Court, and not to the governor. It ought not to have contained any prayer for relief, beyond what this Court is authorized to afford; which is confined to the duty of certifying to the governor which of the parties to the contest had been elected to the office of judge or that no legal election therefor had been held in the said circuit.

Before the Contestant could rightfully invoke the authority of the governor to convene the special court provided by the 13th section of chapter 6, and procure testimony to be used before it, on the trial of the contest, it was necessary that he should file with the governor in his office, a petition with copies of his grounds of contest, notice and specifications, as the basis of his action jn COnvening this Court. Such petition must remain in the governor’s office, for without it, he could have no evidence upon which to base or j ustify his official action.

The petition of the Contestant, containing, as it does, matters not properly addressed to this court, will not for that cause be held bad, but the irrelevant matters must be treated as surplussage. The sufficiency of this petition, embracing, at it does, the grounds of contest and the original notice with the fourteen specifications thereto annexed, must be determined by the principles of law established in similar cases of contest in other states, 'as modified and controlled by the particular provisions of the Code of West Virginia.

Many of the provisions of the law in regard to the manner of holding and conducting the elections and counting the votes and certifying the result, must be held to be directory only, and intended to point out to inexperienced and ignorant persons, who are sometimes necessarily called upon to act as election officers, a plain, easy and direct way by which they are to attain the great end of their creation, viz: To ascertain the true result of the election. When the true result of a legal election has beeu ascertained, or can be ascertained, by the officers charged with the performance of this duty, no irregularity, mistake or even fraud committed by any of the officers conducting the election, or by any other person, can be permitted to defeat the fair expression of the popular will as expressed in said section. In the case of the People vs. Cook, 8 N. Y. 67, it was held by the Court of Appeals of that State, that “The rule was well settled, that statutes directing the mode of proceeding by public officers are directory, and are not regarded as essential to the validity of the proceedings themselves, unless it be so declared in the statute.” Judge Cooley, in his “Constitutional Limitations,” p. 75, commenting on the de-cisión of the Court in People vs. Cook, says: “The Court was right in holding that the election was not to . be avoided for a failure in the officers appointed to conduct it, to comply in all respects with the directions of the statute.”

The reasons on which this well established rule is founded, are so clearly set forth in Cooleys Con. Lim. p. 617, that they may with propriety .be here repeated: “As the execution of these statutes must very often fall into the hands of men unacquainted with the law, and unschooled in business, it is inevitable that mistakes shall sometimes occur, and that very often the law will fail of strict compliance. Where an election is thus rendered irregular, whether the irregularity shall avoid it or not must depend, generally, upon the effect the irregularity may have had in obstructing the complete expression of the popular will, or the production of satisfactory evidence thereof. Election statutes are to be tested like other statutes; but with a leaning to liberality, in view of’ the great public purpose which they accomplish; and ex- * cept where they specifically provide that a thing shall be done in the manner indicated, and not otherwise, their provisions, designed merely for the information and guidance of the officers, must be regarded as directory only; and the election will not be defeated by a failure to comply with them, provided, the irregularity has not . hindered any who were entitled (to vote,) from exercising the right of suffrage, or rendered doubtful the evidences from which the result was to be declared.” In People vs. Cook, the Court announced the rule in regard to irregularities to be, that “Any irregularity in conducting an election, which does not deprive a legal voter of his vote, or admit a disqualified voter to vote, or cast uncertainty on the result, and has been occasioned by the agency of a party seeking to derive a benefit from it, should be overlooked in a proceeding to try the right to an office depending on said election.” See also 16 ; 29 Ills. 72; 19 Barbour 540; Chadwick vs. Melvin, Brightly L. C. E. 256.

The following irregularities, have been held to be im- ■ material: where the inspector acted as clerk; and where more than the lawful number of inspectors acted at the election; Brightly L. C. E. 452: where a clerk assumed the place" of an absent inspector 1' Brewster 69 : where one of the clerks during the election became so much intoxicated as to be unable to continue his labors, and another person was called, who acted in his place, without being sworn, until the regular clerk was able to resume his labors; see Boileaus case, Brightly L. C. E. pp. 268, 452: where the election officers, being illiterate, called in a person who was not an election officer or clerk, to take the ballots from the box and read them to the tellers, at the invitation of the election officers; see Sprague v. Norway, 31, California 175; the omission of the inspectors, while counting the votes, to take out “the ballots deliberately from the boxes, and read aloud the names printed thereon : 2 Pars. 515; and lastly, the omission of the judges or clerks of an election to sign the poll books, to fill up blanks in the caption, or to state the aggregate number of the votes all which may be corrected by parol, and when corrected, used as competent evidence of the result of the election; 19 Ohio St. R. 189.

■ It may therefore be safely affirmed, that no irregularity, or even misconduct, on the part of the election officers, or other persons, will vitiate an otherwise legal election, unless the result thereof has been thereby changed, or rendered so uncertain as to make it impossible to ascertain the true result. A different rule would make the manner of preforming a public duty, more important than the duty itself. As nothing can be proved-, that is not alleged, it follows that a contestant, either in his petition or notice of the grounds of contest and specifications, must by direct averments substantially shew what was the result of the election as declared by the returning officers, and in what manner and to what extent that result will be affected by the errors, irregularities and illegalities complained of in the specifications. And unless it further appear .upon the face of the petition, notice or specifications, that the result of said election will be so changed by proof of said allegations, as to overcome the majority of the person who has been declared duly elected, or to shew that it is impossible to ascertain the true result, it will be the duty of the court, on motion, to quash the same. But, inasmuch, as the petition filed in this case. does not contain any averment as to what the result of said election was, the question as to the effect of such an averment in the petition, does not arise, and is not determined. See Cong. Elec. Cases 161, 383, and Brightly L. C. E. 352, 356 and also 323, 324.

This principle was fully recognized by the court in Kneass’case, 2 Pars. 558, where it held, “That every petition alleging an undue election and false return, must be complete in itself, and must state such grounds as would, if supported by proof, be cause for rendering it void, or declaring another elected; and when some of the grounds alleged are irregularities, which if proved would not be sufficient cause for setting aside the election, such specification will be stricken out on motion.” Leaving, for the present, the consideration of the lorego-ing cases arising in other states, where these questions were carried at once from the officers conducting • the elections into their common law,courts, by petition or information in the nature of a “writ of quo warranto f let us return to a careful examination of our own Code which by special provisions, enables us to correct all irregularities, mistakes and even frauds committed or caused, at or after the election' by the election officers or other persons, without being driven to the necessity of making a formal contest.

By section 18 of chapter 3 of the Code it is provided, hat “no error or mistake in the designation of the office or person shall vitiate any ballot, or cause it to-be rejected from the count, if it be manifest what was intended by the voter.”

By the 64th section of chapter 3 it is further provided,, “That no illegal vote received, nor legal one rejected at any voting place, shall cause the return taken at such place to be set aside for that cause, but the fact may be shown by proper evidence before the final judges of the election, and the return in these respects corrected.” These two provisions remove many of the difficulties that without them would be constantly arising.

By a careful examination of secs. 62, 65 and 66 of Chap.. 3 of the Code, it will be perceived that the boards of supervisors in the several counties, are charged with the performance of many of the highest duties that can be devolved upon any judicial tribunal, viz: to procure correct returns and ascertain the true result of all elections-in their several counties.

They are required, “To convene at the court house on the 5th day after every election held in their county; and their clerk is required to lay before them the ballots, poll books and inspectors certificates of the results of the election at the several voting places; they may, if they deem it necessary, require the attendance of the inspectors or other persons present at the election, and examine them under oath respecting the same; they may demand the production of the poll books and certificates filed in the reccorder’s office; and also make such other-order as shall -seem proper to procure correct returns, and ascertain the true result of the election in their county; they may adjourn from time to time; and open and examine the sealed packages of ballots, and recount the same.” Having done all these things, or such of them as they deemed necessary to enable them to perform these judicial functions, they are, by the 66th section of chapter 3, further required, under the regulations prescribed in the 62d section, “to carefully ascertain the result of the election in their several counties, for judge, &c., and cause- to-be signed by their presiding officer and clerk the certificates thereof specifically prescribed in said section.”

A grant of authority thus extensive to call and examine witnesses, to compel the production of papers, to open, inspect, examine and count the ballots, and to make all orders deemed necessary to enable them to discharge these duties, and to continue their examination by adjournments from time to time, until they have ascertained the true result of the election, indicates, in the strongest possible manner, the intention of the legislature to create a judicial tribunal, whose determinations upon that subject should be entitled to the force and validity of a judgment, until impeached on the grounds of mistake, corruption or fraud precisely averred and clearly proved. Taken together, these provisions of the Code clearly shew that they were intended to avoid the necessity of resorting to contested elections of judges and state officers, except in cases of mistake, corruption or fraud, by providing the people with a tribunal essentially and peculiarly their own, always accessible to them, to the judgment of which, in the first instance, the returns of all elections are submitted for examination and correction.

It is also clear, to my mind, that the legislature further intended that no legal election should be set aside upon the ground of illegal votes received, or legal votes rejected, or any ambiguity in the ballots as to the designation of the person voted for, or of the office intended.

As all the baljots, poll books and inspectors certificates from all the voting places in every county, are required to be laid before the board of supervisors of said county, who are authorized to examine, inspect, hear proof of, and correct the same before they ascertain and certify the “true result,” it is a just and reasonable presumption of law, that all errors, irregularities and illegalities committed at the election, or existing at the time the election returns are examined by the boards of supervisors, must, in the absence of averments and proof to the contrary, be taken and held to have been corrected by said boards, and excluded from certificates of the correct result.

As a necessary deduction from this principle, it follows that any specification which alleges errors, irregularities, illegalities or malconduct on the part of the officers or other persons conducting the election, committed before the action of the board of supervisors was had thereon, must be held, insufficient, unless it is further alleged that the said errors were carried into, and formed a part of the result of the election as certified by the board of supervisors.

Let us now apply these principles to the petition, notices and specifications filed in this case by the Contestant, and now submitted to®the Court on said motion to quash.

The Contestant relies upon three grounds of contest, in substance as follows :

“1st. He was a candidate'for the office of judge of the circuit court for the fifth judicial circuit, and was voted for as such at the election held therein on the 22nd day day of August 1872; and that he received a higher number of votes than did the respondent James M. Jackson; and he is entitled to have same allowed to him, and, in consequence thereof, to be commissioned judge in the said circuit.”

“2nd. In divers precincts in the several counties composing the said circuit, there was such malconduct at the voting places therein by the officers conducting the election, and such interference by others suffered at the polls, as to preclude a fair expression of the will of the legal voters, voting and offering to vote, as to render it impossible to determine at such voting places who was the choice of said voters for said office of judge ; notwithstanding which, the election officers then and there acting, whose duty it was to declare the result of said election, declared the same in favor of said James M. Jackson, wrongfully and to tbe prejudice-of tbe Contestant.”

“3rd. At tbe court house of Wood county in Park-ersburg, when tbe inspectors and clerks in the presence of the supervisors were counting the ballots, they found, in two instances, two ballots folded together; and the names on each were the same, and Contestants name was on all of them, as the person voted for as judge ; all of said ballots so found folded together were destroyed by said officers, and none of them was counted; and said Jackson was present, directing them to be ' destroyed; therefore, the Contestant claims that, after the certificates of the several boards of supervisors shall be corrected in the manner set out in his several specifications, these ballots so destroyed would of themselves change the result of the election.”

It will be, perceived that these grounds of contest fail to allege the number of votes which the boards of supervisors of the several counties certify were given to the Contestant, or to the Respondent, or what majority of the Respondent was to be overcome by the Contestant. In other words, the actual result of the election does not appear. Unless some other part of the record of the Contestant’s case as now presented to the Court, supply this necessary fact, and also that the result of the election will be thereby changed in favor of the Contestant, or that the election itself was illegal, the motion of the Respondent to quash must be sustained.

Of the specifications,

The 1st sets forth; “That the board of supervisors of Pleas-ants county certified to the Respondent 387 votes, and to the Contestant 345 votes; whereas, in Grant township in said county, the Contestant received five votes more than he is certified there to have received; which were not counted to him, as appears by the poll books, tally sheets and ballots at that voting place.”

This specification is defective,. because it does not thereby appear that the said error of five votes was carried into the-result as certified by said -board of supervisors.- As such an error was apparent upon the papers 'laid before them on the 5th day after the election, and as it became their duty to correct it by excluding it from their certificate of the result, it is not to be inferred by this Court that they failed to correct it, especially when the Contestant declines to allege it.

The 2nd specification sets forth; “That in McKim township in Pleasants county, during the election, before the ballots were counted, the ballot box was opened, and one Hanson Pointer took out of it nineteen ballots, more or less; that he was not an election officer, and he had no authority to do so ; that one Simjison Jones, who was the supervisor then and there conducting said election, acted in the twofold character of clerk and supervisor of said election contrary to law; and that said election at that place was conducted generally in such manner as to repel the presumption that' the ballots were not tampered with. For these causes he asks that the poll taken at that place be set aside.”

All these acts may have been perfectly innocent, and the election, for aught that'appears, may have been perfectly fair. The act of Hanson Pointer, in taking a ballot from the box, was an impertinent interference with the election, and deserved rebuke. But how many ballots were so taken out? “Nineteen, move or less!” This may be equally true when said of one or one thousand ballots. The act is a mere irregularity which in no manner affected the result of the election. Was the ballot taken out by Pointer restored to the box ? If not, the board of supervisors could have corrected it, and it was their duty to do so. It is not alleged they did not do so. It is therefore to be presumed they did. The Court has not been able to find any law forbidding the supervisor, or any of the inspectors, conducting the election to act as clerk. It may have been impossible to obtain a suitable clerk; and a legal'election is not to be permitted to fail for want of a clerk. See People vs. Cook, Brightly L. C. E., 441, 442. For these reasons, I am of opinion that this specification is fatally defective.

The 3d specification contains three clauses. The 1st alleges; “Thatthe board of supervisors of Calhoun county certified that .Respondent received in that county 469 votes, and Contestant 186 votes; which was erroneous, because in Washington township in said county, the inspectors counted Respondent two votes more than he received.” The 2nd clause of this specification alleges; “That the inspectors of Sherman township counted to the Respondent-ten votes more than he received, and that both of said errors were carried by the board of supervisors into their certificate, and formed a part of 469 votes.” The 3rd clause alleges; “That in Washington township in said county, Contestant received 13 votes, and that the inspectors of the election at that place counted to him only 9 votes, being four less than he received; and that the board of supervisors did not include said four in said 186 votes.” It does not allege any error or mistake in the judgment and consequent action on the part of the election officers, or of the board of supervisors, in not counting said four votes; they may have been illegal votes, which fact, if known to the said officers, or board, would cause them to be rejected from the count; and for aught that appears they acted rightly in not counting them. In the absence of such an allegation, this Court is bound to presume that their action was correct. For these causes said 3rd clause is defective.

The said 1st and 2nd clauses of this specification would be sufficient but for an objection which, in the opinion of a majority of the Court, underlies the whole case.

The 4th specification alleges only; “That in Sheridan township in Calhoun county, on the day of the election, and before the poll was closed, the ballot box was opened several times, and the ballots handled, examined and tampered with by unauthorized persons; and other misconduct, and irregularities were practiced to such an extent as to invalidate the poll at that place.”

It is not alleged or pretended, that there were any ballots handled except those in the ballot box, or that any ballot was abstracted, lost or distroyed, or that any spurious ballots were introduced. It charges only an irregularity, proper for the correction of the board of supervisors. If any error in the result was occasioned thereby, it was their duty to correct it. It is not pretended they did not do so. For these causes this specification is insufficient. See 29 Ills. 72, 1 Brewster 69. Brightly L. C. E. 268, 452.

The 5th specification charges; “That át the voting place in Grant township in Ritchie county, the persons who actually conducted the election at that place, were persons other than the legal officers, for conducting the election at that place, and that such persons were not sworn.”

It does not, therefore, follow that the election was not fairly conducted, or that the persons referred to were not authorized by law to conduct the election. Section 9 of chapter 3 of the Code, expressly authorizes persons other than the election officers to conduct elections in the absence of these officers. This. whole subject was necessarily considered and acted upon by the board of supervisors, and their action is not impeached.'

The specification must therefore be held insufficient. See Boileaus case, Brightly L. C. E. 268, 452.

The 6th specification charges; “That at Burning Springs township in Wirt couuty, Jasper Gibson and George Morgan who were minors at the time of the election, voted for Respondent.”

And specification 7 charges; “That at the election in Parkersburg, six other persons who are named, who were not qualified voters, voted for Respondent-”

Both of these last two specifications are fatally • defective, because the 6th does not allege that the two illegal votes were counted to Respondent, either by the inspectors of the election, or by the board of supervisors of Wirt county; and becapse the 7th, in like manner, fails to allege that said six illegal votes were counted to Respondent by the board of supervisors of Wood county. This Court will not presume they were so counted, as the Contestant has failed to allege it.

The 8th specification charges; “Upon the personal knowledge of Contestant, that at the court house, the voting place in Parkersburg township in Wood county, after the polls were closed, while the ballots were being counted, and before the count was concluded, the respondent James M. Jackson did take hold of, handle and displace a great number of said ballots before the same had been fully counted; and claims for these causes, that all the poll received by Respondent at that place be set aside, because said acts were improper, unwarrantable ' and illegal; leading to well grounded suspicions, of unfairness, and operated to his prejudice.”

The acts here complained of are; that “Respondent took hold of, handled and displaced” the identical ballots which had been voted at that place'; and the effect of the acts was only to “lead to well grounded suspicions of unfairness.”

“Suspicions of unfairness,” however well founded, are not facts. If any ballot was abstracted, altered, destroyed or exchanged, or.if any other act was then and there done by Respondent, calculated to produce a false result, why not allege it ? The specification being made by Contestant.upon his personal knowledge, it is but just to presume that it would have been alleged if it had existed ; and according to the well established rules of pleading, the court must presume that what is not alleged does not exist. Did the Contestant by this specification intend to charge that the Respondent had been guilty of a fraud upon the election by handling the ballots? If so, a recurrence to the rules of pleading will shew that js insufficient for such a purpose. Fraud is never to presumed it must be particularly alleged, especially Avhen the act. charged as a fraud may be innocent. See 1 Randolph, 250; 3 Randolph, 507; 44 Barbour, 169; Hillard on Remedies for Torts. 170. The authorities fully warrant me in announcing the rule in such cases to be, that in pleading a fraud, the pleader must by apt words allege in his pleading every act, fact and intent which necessarily enter into, and constitute that partciular fraud; and these essentials must be alleged with such precision and certainty as to exclude every construction except the fraudulent and wrongful purpose complained of; and if, from the face of the pleading, it is doubtful whether the allegations do in fact amount to that particular fraud or not, it is not well pleaded. As a charge of fraud this specification is utterly insufficient, and, divested of this character, it descends to a mere insinuation, and dwindles into an irregularity from which it is not pretended any change was caused in the result of the election at Parkersburg. This specification, for the reasons heretofore given, and for the additional reason that it charges an irregularity which was subject to examination and correction by the board of supervisors, whose action thereon is not impeached, must be held insufficient.

' Specification 9, alleges in substance the same irregularity and no more, and is defective for the same reasons.

The 10th specification alleges; “That at Parkersburg after the polls were closed, and the ballot box opened by the inspectors, they did not take the ballots out of the box ‘‘one at a' time,” but unlawfully took them out of the box, culled and separated the ballots ’into different parcels and laid them out upon a table, before the inspectors read from said ballots the designation of the offices to be filled, thereby increasing theop portunities for said ballots to be tampered with; and in consequence of such acts- of the election officers, the Contestant asks to set aside all of Respondents poll at that place, of 665 votes.”

To grant such a request, for such a cause, would establish a principle which would place in- the hands of election officers the power to defeat the fair expression of the popular will at any and every election; it would be-to set a higher value upon the manner of counting the ballots, than upon the ballots themselves; and it would operate to defeat a large proportion of the elections required by law to be held.

This specification presenting a 'mere irregularity, not affecting the true result of the election, must be held insufficient.

The 11th specification contains two clauses. The first alleges; “That at the election in Parkersburg, the inspectors, in counting the-ballots, found in two or more instances, two or more ballots folded together on which the names were the same, and Contestant’s name was on each and every of them as the persons voted for as judge for said 5th circuit; and that They destroyed all, and counted none of them; and that'Respondent was present directing the same to be done.” This was such an error as the board of supervisors could and should have corrected. It is not alleged that they did -not correct it; nor is their action impeached or even questioned; neither does it affirmatively appear that said error was- carried into and- formed part of the result, certified as the true result of the election in Wood county. The second clause in this specification sets forth that: “After said inspectors of said election at Parkersburg, had taken from the ballot box, and counted^ as many ballots as corresponded to the number of names on the poll books, they found in the box three ballots in excess, on each of which was Contestant’s name as the person voted for as judge, which the inspectors destroyed by the direction of Respondent; and he claims that these' three ballots, thus found in excess, might have been counted for Contestant, but for the action of the Respondent in the premises, and the illegal manner of taking the ballots from the 'box as hereinbefore stated; and Contestant further claims that the destruction of said ballots, as above stated, would of itself change the result of the election after the same should be corrected of the errors set forth in his foregoing 1st and 3rd specification.”

It was the duty of the inspectors to destroy the three ballots in excess, found remaining in the ballot box, without unfolding or opending, them, or suffering any person to learn their contents. The speculation, as to what other ballots might have remained in,the box, presents an impossible, and therefore useless inquiry; and the claim resting thereon must necessarily fall with it. For these causes, the whole specification is insufficient.

The 12th specification states that; “After the ballots cast at all the voting places in Wood county, had been by the several inspectors enclosed in sealed envelopes properly endorsed, returned and delivered to the clerk of the board of supervisors of said county on the 28th day of August 1872, and before the said board, then and there convened, had examined said inspoctor’s certificates, laid before them by their clerk, the Respondent caused the sealed package of ballots cast at Parkersburg, to be broken open and examined, and the ballots therein contained to be handled and misplaced, without a majority of the said board of supervisors being present at the time and place when and where they were so broken open, examined, handled and misplaced; and that only two of said supervisors were present at the time said acts were done; and that they and Respondent, at his procurement, did unlawfully break open the sealed paclc-of ballots, in number between 1000 and 2000; and that, after said ballots had been so handled, examined and meddled with, they were left in a loose, unsafe condition, and were not again sealed up, along with the original envelope, in another envelope, which Contestant avers, was to his prejudice in the premises; and also, that said two supervisors and Respondent, in counting"'said ballots, ascertained that Respondent had received a less number of votes for the office of judge, than the inspectors of Parkersburg township had certified, although the said two supervisors reported to the full “board/’ that the certificate of the inspectors was correct; for which causes, Contestant claims that Respondents whole poll in ’Wood county of 1877 votes, may be set aside.”

It might, perhaps, lie sufficient to say that this specification is fatally defective, because, like many others, it fails to shew or impeach the action of the board of supervisors in regard to the said returns.

It was their duty “to procure correct returns and ascertain the true result” of the election in Wood county; they were then and there convened, on the 5th day after the election, for that purpose ; their clerk had laid before them the poll books, ballots and inspectors’ certificates ; they had been informed by two of their own body, that the sealed package of the ballots cast at Parkers-burg had been, by them, broken open and counted; that by that count they had ascertained a particular result; they had unlimited power to procure testimony, examine witnesses, and they thereupon ascertained a result, which they judicially determined was the true result of the election in Wood county; and which, in obedience to the requirement of the law, they caused to be certified to the governor.

Under these circumstances, this Court cannot pi’esume,s in the absence of any averment of facts tending to impeach their action, that the result which they ascertained and certified, was not the “true result” of the election in Wood county.

But if said specification was not defective for the causes which I have pointed out, it is liable to another exception which is necessarily fatal, viz: that every allegation therein contained may be true as stated, and yet all the acts complained of may be not only innocent, but consistent with the law and the honest discharge of official duty, and the exercise of private right. It is the right of every voter to appear before the board of supervisors, while sitting as a tribunal to ascertain the true result of an election, and, upon his motion made to them, to procure the sealed packages of ballots to be broken open and counted; which must necessarily cause them “to be handled, examined and misplaced.”

Ifc'is the right of the board of supervisors, if they determine to recount the ballots, to appoint a committee of their own number, less than a majority of the whole, to perform that duty, and report the result of their examination and count, to the full board, which may adopt it as their own act; and, unless the board otherwise determine, any person desiring to do so maybe present and witness the recounting of the ballots. Acts which may thus bear an innocent construction, and which, as set forth in this specification, almost demand such construction, cannot, in my opinion, be held sufficient to defeat the fair expression of the popular will] as expressed in a legal election.

It is not deemed necessary in this opinion to refer to the remaining portion of this specification, which relates, principally, to a contested election between two gentlemen for the office of justice in Parkersburg,further than to remark, that as a specification it is wholly immaterial, and as an argument irrelevant, and, therefore, useless.

The 13th specification charges; “That at Volcano in Wood county, the officers conducting the election failed and omitted to have entered, by their clerks, the contents of the ballots, as they were read on tally papers by suitable marks made opposite to, or under the names of the persons voted for as judge.”

This specification is defective, because it charges a mere irregularity, viz:'that the inspectors ascertained the true result without tally'papers! What of that? It was the correct result. It is not alleged or pretended to have been incorrect. It must be presumed correct until the contrary is alleged.

The 14th specification charges; “That at Burning ‘Spring township in Wirt county, the polls were closed .at 4 o’clock and before sundown, whereby numbers of voters were prevented from voting at that place, to the Contestant’s prejudice; and that during the time the votes were being taken, the ballot box was at three different times opened, and the vote counted, to his prejudice.”

This charges a mere irregularity; it is not alleged how, or to what extent the result was affected by it. How many voters were thus prevented from voting? Wrho were they ? How would they have voted? Did all, or any of them offer their votes before sundown ? Hone of these facts being alleged, it is impossible to perceive how the result of the election at' that place would have been thereby changed. The specification is, therefore, insufficient.

We are now brought to consider the matters sought to be introduced into the record by the Contestant, by his additional notice and specifications and to determine whether they are of that character indicated by the 4th section of 6th chapter of the Code.

The Contestant by his new notice informed the Respondent that after the service of his original notice, he had discovered the new facts particularly set forth in the following additional specifications: The first additional specification sets forth; “That at the general election held on the fourth Thursday of October 1868, Contestant was 'elected judge of the circuit court for the 9th judicial circuit of this State, and was duly commissioned as such judge for the term of six years from the first day of January 1869; that said ninth circuit embraced the counties of Wood, Wirt and Pleasants, now embraced in said 5th circuit; that the constitutional convention which was ealled for the purpose of proposing amendments to the constitution of the state, in providing for an election of officers on the 22nd day of August 1872, transcended the powers delegated to it by the legislature, and that thc-clection was therefore illegal and void.”

Were these facts newly discovered by the Contestant? If so, wherefore was he a candidate for the exalted position of judge of the circuit court of the 5th judicial circuit at the election on the 22nd August 1872? Why is-he a contestant before this Court, called into existence by . his own acts, founded upon the recognition of these very facts?

The answer to these questions is, that these alleged new facts were old well known facts of which the Contestant, by virtue of his office of judge of said ninth judicial circuit, was bound to take official notice. Not being-new facts discovered after the service of the original notice, they cannot be the subject of a new notice under” section 4 of chapter 6.

I have had no difficulty in reaching the following conclusions upon the constitutional questions presented in this specification, viz:

First. That a constitutional convention lawfully convened, does not derive its powers from the legislature,, but from the people.

Second. That the powers of a constitutional convention are in the nature of sovereign powers. •

Third. That the legislature can neither limit or restrict them in the exercise of these powers; and

Fourth. That the legality of the election for officers held on the 22nd day of August 1872, after the ratification of the new constitution and schedule, is not to be-called in question by any court created or continued by the provisions of that constitution. When it is proposed that this Court shall determine that the sovereign power of this state cannot lawfully commission a judge-ofitsown creation, it is invited to commit judicial suicide.. Courts sit to expound the laws made by their government, and not to declare that government itself an usurpation.

Additional specification 2 sets forth; “That in Clay town-rsliip in Wirt county, the officers of the election at that place suspended the voting about one o’clock, p. m., opened the ballot box and counted the ballots; after which, other votes ■ were received, and in this manner the ballots were were counted, the voting suspended and resumed, and the polls closed before sundown.”

Additional specification 3, charges; “That the election •officers at Newark township inWirt county, were notsworn according to law before entering upon their duties, and not until the poll books were returned to the clerk of the board of supervisors; and that the polls were closed before sundown; and the ballot box was opened and ballots examined before the voting had ceased.”

Additional specification 4charges; “That at the several voting places in Calhoun county, especially at Richardson-villesome of the officers conducting the eleetienby previous arrangement with Respondent and with his assent, con■cealed and destroyed ballots (tickets) that had on them the name of Contestant, as the candidate for judge, so that the same could not be furnished to the voters who desired to vote the same.”

Of till the last three additional specifications it may be said, they all fail to shew that any of these acts deprived any legal voter of his vote, or that any illegal votes were received; or that any uncertainty was thereby cast upon the result; or that the boards of supervisors improperly approved the returns, if any errors existed therein. Being therefore wholly immaterial, they must be held insuffi■cient. They are such facts as the Contestant could have le.arned by the exercise of due diligence before giving his original notice.'

There remains to be considered the last additional and supplemental specification, which] states; “That at said election in Washington township in Pleasants county, the poll books do not shew that any person was voted for, for the said office of judge at that place; nor was there on said poll books any certificate made by any of the officers conducting said election, that any person received any votes for said office of judge. Yet the board of supervisors of Pleasant county, certified that" the Respondent received in said township, for the said' office, 87 votes, and Contestant 65 votes.”

This specification contains no new facts; on the contrary it is a fact that was apparent upon the face of the poll books, and could have been learned by the exercise-of due diligence before the service of the original notice ; indeed it could scarcely fail to be known to any person interested in the result of the election. But if it was a newly discovered fact, tlie specification discloses no irregularity, or error, in the action of the board of supervisors in regard to it. It was their duty to ascertain the true result of the election at that place, and in doing so, it was their duty to count and certify to Respondent and Contestant the number of legal ballots actually cast for them, whether the name of the office appeared upon the poll books or not, if there appeared upon the ballots themselves the designation of the office for which they were cast. Nothing being alleged against the action of the board of supervisors, it cannot be presumed that they acted improperly, or that they did not ascertain the “true result.” This specification' is, therefore, insufficient.

I am therefore of opinion that the additional notice* of the Contestant, with all of said last mentioned five' specifications of newly discovered facts, must be excluded from this case, because it sufficiently appears, from1 the face thereof, that at the time of the service of the1 original notice and specifications on the Respondent,, they were all well known to the Contestant, or could* have been known by him, “by the exercise of due diligence;” and the said facts themselves do not, and cannot affect the general result of the election in said circuit..

From this examination of the case made before this-Court by the Contestant, it is manifest that his petition, original notice and specifications taken separately as parts or collectively as a whole, fail to allege and shew wliat was the actual result of the said election for judge in said otli circuit, cither by setting forth the votes cast for Contestant and Respondent, or the majority, certified to Respondent, sought to be overcome by the Contestant.

For this reason, which applies to the whole case, as well as for the reasons hereinbefore given which apply to the particular specifications, I am oí the opinion that the motion of Respondent to quash the original- notice and specifications must bo sustained.

It only remains to consider the motion made by the Contestant to amend the original notice and specifications, after the motion to quash had been sustained, by filing as parts thereof copies of the certificates of the result of said election, made by the several boards of supervisors of the counties composing said 5th circuit.

This is a proposition that the Contestant be now permitted to make an entirely new case in this Court; to tender to the Respondent a new issue, upon which he could not have been required, or even permitted to take testimony in the country; an issue upon facts of which he had no previous notice; and to require him upon this new issue to proceed at once to trial.

If it was perfectly clear that this Court possessed the general powers to amend which are incident to courts exercising a general common law jurisdiction, it would hesitate to allow such an amendment to be made at such a time and under such circumstances.

This Court is one of limited jurisdiction, confined to the trial of one single cause, and becomes functus ofició as soon as that cause is determined. It possesses no inherent power, and it can be directed in the exercise of its authority only by the provisions of the statute creating it.

Possessing no common law jurisdiction, it cannot thence, derive the incidental power of amendment. The statute creating it docs not expressly grant to it such a power; but on the contrary, by reserving to the parties the right to supply defects to a certain limited extent. upon certain conditions and within a specified time, that power, by very strong implication, is withheld from this court. The 8th section of chapter 131 of the Code, an-, thorizing the amendment of the pleadings in certain cases, cannot apply to this Court; for the courts there referred to can impose conditions upon the party asking leave to amend, by payment of costs, or granting á continuance, if thereby made necessary, which this Court cannot do.

I' am, therefore, further of the opinion that this Court cannot allow the amendment asked for, to be made; and that said motion must be overruled.

As nothing in this case now remains but the petition of the Contestant, unsupported by the notice of the grounds of contest and specifications required by law, I am of opinion that the said petition must be dismissed-

Smith, President, concurs in the foregoing opinion.