1870. November And what reason can be assigned for restricting the right of the voters to complain of an undue election, Term. to cases in which there were competing candidates, or more than one person voted for? Then comes the last clause, which is so much relied upon, and which is in these words: "When the contest is decided, a certificate of election shall be issued to the party in whose favor the contest is decided, in the manner prescribed by law, unless a certificate shall have been previously issued to such person." As I have said before, this clause is not in the act of 1852, sects. 9-10, or in the act of 1858, sects. 67-8, which are the prototypes of the other parts of this section. What has been said already, seems to be sufficient to establish, that there is nothing in the other parts of this section to confine the jurisdiction of the court to cases of contests between competitors. In the case of Ferguson v. West, 16 Gratt. 270, it was held by this court that the jurisdiction of the County court, under the act of 1852, sect. 9-10, was not confined to cases of contest between competitors. Judge Robertson, delivering the opinion of the whole court, said: "These proceedings are novel and peculiar in their character, and seem designed rather for the purpose of ascertaining, on behalf of the public, who has been duly elected, than to enable the candidates to litigate, on their own behalf, the question of right to an office. No contest can be commenced unless complaint of an undue election or false return is made by fifteen or more of the qualified voters, two of whom must make oath or affirmation to the truth of the facts stated in the complaint. This must be filed in the clerk's office within ten days after the election, and the party whose election is contested must, within ten days after the complaint, be served with a copy of it. The defeated candidate, who is the only other party that can be supposed to have any personal interest in the matter, can Ellyson & als. ex parte. November als. ex 1870. not, at his own pleasure, enter upon the contest, and it Term. may be commenced and prosecuted without his knowledge or against his will. He is not a necessary party, Ellyson & in any stage of the proceedings. Indeed, the comparte. plaint may be made and the election set aside where there has been no candidate, except the one whose election is contested." These remarks were not obiter, as maintained by the counsel for the petitioners here. They contained the very gist of the ground on which the court put its decision, that costs could not be given to either party in such a proceeding. Upon familiar principles, the Legislature of 1870 must be presumed to have known of this decision, and to have intended to reenact the 9th and 10th sections of the act of 1852, in the sense thus put upon them by this court, unless a contrary intention is plainly indicated. The only difference between the 9th and 10th sections of the act of 1852, and the 69th section of the act of 1870 being the addition, at the end of the latter of the clause quoted above, the only question is, whether an intention to make a change in the law is plainly indicated by this new clause. We think this clause has no such effect. 'It does not in terms profess to define jurisdiction, or to limit the scope of other parts of the section, as construed by this court. Those parts of the section which define the causes of complaint, and the duty and power of the court, remain as before. This clause prescribes a single thing to be done in those cases where there is a decision in favor of one of several competitors, but says nothing about the cases in which there was but one person voted for. The purpose was to give to the successful party a certificate. But there could be no difficulty, without this clause, in furnishing to the successful competitor a copy of the order of the court, as evidence of his right. This, or something equivalent, must have been done under the acts of 1852 and 1858, 1870. November Term. so that this clause was not at all essential to the rights of the party. Besides, no reason appears why the Legislature should have narrowed the jurisdiction in the mode contended for. And it is obvious, that if the Ellyson & law should be thus construed, it would be wholly in- parte. adequate to meet many cases of "undue election or false return." It was further contended, that as the petitioners have qualified and gone into possession of their respective offices, they can only be deprived of them by a judgment of ouster upon quo warranto. It is true that no express authority is given to the court to annul a qualification to office, and to oust the incumbent. And so no express authority is given to annul a certificate of election, where there has been no qualification. But the judgment of the court, that the election, under which an incumbent holds, was invalid, and which judgment is made by the statute final and conclusive against him, is necessarily fatal to his title derived from that election. This being so, why turn the case over to another proceeding? Why not put the judgment of the court into operation at once, instead of requiring another proceeding, which will cause expense and consume time, and in which nothing can be litigated? It was contended by the counsel for Judge Guigon, that this statutory proceeding, in cases of contested election, gives to the court as ample authority as might be exercised on the principles of the common law, upon quo warranto or mandamus, and that it is exclusive of those remedies. He cited for the latter proposition the case of Attorney-General v. Garriguez, 28 Penn. St. R. 9, decided upon a statute of Pennsylvania, the material parts of which are in the very same words as our statute. We are not called upon to say what is the full extent of the powers of the court in cases of contested election, nor whether the statutory remedy is ex als. ex 1870. November Term. clusive of the remedy by quo warranto or mandamus. But this we may properly say, that the court may exercise all such powers, consistently with the rules and principles of law, as may be necessary to render its parte. jurisdiction effectual, and that there is no necessity to resort to any other proceeding to oust an incumbent, whose title has been adjudged bad. Ellyson & als. ex It was strenuously insisted, that the power to vacate an election is a dangerous power, and that the Legislature ought not to be held to intend the bestowal of such a power, unless the intention is unmistakably expressed. Such a power may be undoubtedly abused; and so, too, may the power to decide between rival candidates. There may be great temptation to abuse this latter power, in times of high party excitement. There can be no danger, on the other hand, in remitting the power of filling an office to the people, to whom it ultimately belongs. In a doubtful case, it ought to be done, rather than have the office filled by the appointment of any court. Such a course is more consistent with sound policy, more just to the voters, more likely to prevent abuse, and more agreeable to the principles of our government. The motion to award a rule is denied. Bichmond. GRIFFIN's ex'or v. CUNNINGHAM. WASHINGTON, ALEXANDRIA & GEORGETOWN R. R. Co. v. November 14. 1. The judges of the Court of Appeals who were in office under military appointment when the State was restored to the Union, holding over and continuing to exercise their office, their judgments and decrees are valid and binding. 2. The proviso to 2 of the act of March 5, 1870, called the enabling act, which authorized the Court of Appeals organized under the present constitution to rehear and affirm or reverse the decrees made by the military judges at its term, commencing the 11th of January, 1870, the term having ended before the passage of the act, is unconstitutional; and the present court has no authority to rehear such cases. 3. A case decided by the Supreme Court of Appeals at one term of the court, at which no motion is made to rehear it, cannot be reheard at a subsequent term of the court. The January term 1870 of the military Court of Appeals of Virginia commenced on the 11th of that month, and was terminated on the 25th of February following. On the 31st of January the court decided the case of Griffin's ex'or v. Cunningham, reported 19 Grattan 571, and on the 14th of February the court decided the case of The Washington, Alexandria and Georgetown R. R. Co. v. The Alexandria and Washington R. R. Co., reported in the same volume, p. 592. After the final adjournment of that court, an act was passed called the enabling act, approved March 5, 1870, by which all officers who had been appointed to office 1870. November Term. |