election held in said county on November 6, | turnable at 9 o'clock A. M. on January 10, 1889, 1888, for the office of governor of this State; commanding said Walker, secretary as aforethat after said injunction had been perfected said, to forth with deliver said certificate to the and served upon said Walker, Nathan Goff, speaker of the house of delegates of the Legiswho was also a defendant to said bill of injunc- lature; that said Walker has no personal intertion, without any notice to petitioner, applied est in said injunction or mandamus proceedings, to F. A. Guthrie, Judge of the Circuit Court and that petitioner is the real and only opposof Kanawha County, in term, for a writ of ing party in interest against the said Goff in mandamus to compel said Henry S. Walker, any of said matters. secretary as aforesaid, to do what he had been enjoined from doing by said bill; that Judge Guthrie being fully advised of the existence of said injunction, announced from the bench that he would ignore and treat as naught said injunction, and thereupon he did ignore said injunction and awarded a mandamus nisi, re the party aggrieved, and where without its aid there would be a failure of justice. Com. v. Mitchell, 2 Penr. & W. 517. And see Com. v. Allegheny County, 16 Serg. & R. 317; Com. v. Phila. Co. 1 Whart. 1. Purpose of writ purely mandatory. A mandamus cannot properly be made to do either a prohibitory or reviewing duty; its purpose is purely mandatory. Re Atrams v. Hempstead Town Auditors, 45 Hun, 272, 10 N. Y. S. R. 378. Mandamus cannot be converted into a writ of error. State v. Wright, 4 Nev. 119; People v. Weston, 28 Cal. 639; People v. Judges of Dutchess Com. Pleas, 20 Wend. 658; High Extr. Legal Rem. § 191. Even though the judgment is plainly erroneous, the subordinate court having passed upon the question pending before it, its decision, if erroneous, is a judicial error, which it is not the province of a mandamus to correct. Judges of Oneida Com. Pleas v. People, 18 Wend. 79; Cariaga v. Dryden, 29 Cal. 307: Er parte Whitney, 38 U. S. 13 Pet. 404 (10 L. ed. 221); Warren County Ct. v. Daniel, 2 Bibb, 573; Stout v. Hopping, 17 N. J. L. 471; Reg. v. Blanshard, 13 Ad. & E. N. S. 318; Foster v. Redfield, 50 Vt. 285; Er parte Koon, 1 Denio, 644; Ex parte Ostrander, 1 Denio, 679; Elkins v. Athearn, 2 Denio, 191. It is final and conclusive, and its correctness will not be questioned by mandamus. Ex parte Newman, 81 U. S. 14 Wall. 152 (20 L. ed. 877); State v. Wright, 4 Nev. 119; People v. Weston, 28 Cal. 639; People v. Judges of Dutchess Com. Pleas, 20 Wend, 658. But see People v. Wayne County Circuit Judge, 19 Mich. 296. Nor will it be granted to reverse the decisions of inferior courts, upon matters properly within their judicial cognizance. Bank of Columbia v. Sweeny, 28 U. S. 1 Pet. 567 (7 L. ed. 265); Ex parte Hoyt, 38 U. 8. 13 Pet. 279 (10 L. ed. 161); Ex parte Whitney, 38 U. S. 13 Pet. 404 (10 L. ed. 221): Ex parte DeGroot, 73 U. S. 6 Wall. 497 (18 L. ed. 887); Ex parte Newman, 81 U. S. 14 Wall. 152 (20 L. ed. 877); Ex parte Schwab, 98 U. S. 240 (25 L. ed. 105); Ex parte Perry, 102 U. S. 183 (28 L. ed. 43); Ex parte Des Moines & M. R. Co. 103 U. S. 794 (26 L. ed. 461); Ex parte Hendree, 49 Ala. 360; Ex parte Gilmer, 64 Ala. 234; Ex parte Graves, 61 Ala. 381; Ex parte Schmidt, 62 Ala. 252; Ex parte Brown, 58 Ala. 536; Ex parte South & N. Ala. R. Co. 65 Ala. 599; Judges of Oneida Com. Pleas v. People, 18 Wend. 79, overruling People v. Superior Ct. of N. Y. 5 Wend. 114; People v. Judges of Dutchess Com. Pleas, 20 Wend. 658; Ex parte Koon, 1 Denio, 644; Ex parte Ostrander, Id. 679; Elkins v. Athearn, 2 Denio, 191; People v. Weston, 28 Cal. 639; Cariaga v. Dryden, 29 Cal. 307; Lewis v. Barclay, 35 Cal. 213; Jones v. Justices of Stafford, 1 Leigh, 584; People v. Pratt, 28 Cal. 166; People v. Moore, 29 Cal. 427; State v. Kenosha Circuit Judge, 3 Wis. 809; Warren County Ct. v. Daniel, 2 Bibb, 573; State v. Wright, 4 Nev. 119; Stout v. Hopping, 17 N. J. L. 471; Rex v. Frieston, 5 Barn. & Ad. 597; Reg. v. Blanshard, 13 Ad. & E. N. S. 318; Little v. Morris, 10 The petitioner prayed for a rule against said Guthrie, Judge, etc., and said Goff, to show cause why a writ of prohibition should not issue prohibiting said Guthrie, Judge, from holding for naught and setting aside said injunction, and prohibiting him and the said Goff from proceeding in said mandamus case without no Tex. 263; Dunklin Co. v. Dunklin Co. Dist. Ct. 23 Mo. 449; Potter v. Todd, 73 Mo. 101; Williams v. Judge of Cooper Ct. Com. Pleas, 27 Mo. 225; Blecker v. St. Louis Law Comr. 30 Mo. 111. See, contra, Hall v. Audrain County Ct. 27 Mo. 329; Rex v. Yorkshire Justices, 5 Barn. & Ad. 667. Mandamus and injunction distinguished. Mandamus is a positive or remedial process, while injunction is a negative or preventive one. People v. Inspectors & Agent of State Prison, 4 Mich. 187; Atty-Gen. v. New Jersey R. & Transp. Co. 3 N. J. Eq. 136; Washington University v. Green, 1 Md. Ch. 97; Sherman v. Clark, 4 Nev. 138; Blakemore v. Glamorganshire Canal Nav. Co. 1 Myl. & K. 154; Crawford v. Carson, 35 Ark. 565. It cannot take the place of an injunction, and will not be employed to restrain or prevent an improper interference with the rights of relators. Legg v. Annapolis, 42 Md. 203. When it appears by the record that the respondent is already enjoined in the same court from performing the act sought, and that the injunction suit will determine the question involved, a mandamus will not be granted. People v. Hake, 81 Ill. 540. Issue of writ in discretion of court. Where mandamus is asked against public officers to compel the performance of an alleged public duty, its issue is a matter of judicial discretion. People v. Police Comrs. 9 Cent. Rep. 728, 107 N. Y. 235. At common law, and also under the statute, the relator in mandamus must show a clear and indubitable right to the relief demanded, and that defendant is under a legal obligation to do the act required. People v. Madison Co. (Ill.) 15 West. Rep. 186. A reason for refusing the writ is that, notwithstanding any opinion expressed by the superior court upon the proceedings in mandamus, the same question might again recur upon the final judgment in the case on writ of error. Bank of Columbia v. Sweeny, 26 U. S. 1 Pet. 567 (7 L. ed. 265). An additional reason is found in the principle that a writ of mandamus confers no authority, and only issues to compel a party to perform an act which is his plain duty without the writ. Nor will the writ go to direct a court to proceed with the trial of a cause which has been enjoined. People v. Gilmer, 10 Ill. 242; People v. Muskegon County Circuit Jndge, 40 Mich. 63. How far courts will interfere. In determining the extent to which courts may interfere by mandamus with the heads of the executive department the test to be applied is whether the duty is of an executive or a political nature, requiring the exercise of official judgment, or whether it is ministerial in its nature, and specifically and peremptorily required of the officer. tice to petitioner or opportunity for him to appear and defend his interests therein. The rule was awarded as prayed for returnable on January 11, 1889, at which time the respondents appeared and moved the court to quash the rule. On the motion of the petitioner, his petition was so amended as to show that the injunction bill averred that a writ of certiorari had been sued out of the Circuit Court of Kanawha County by petitioner against the county commissioners of said county to supervise and correct the action of said commissioners in canvassing the vote for governor at the election of November 6, 1888; that said writ had been sued out on January 4, 1889, and was still pending; Kendall v. U. S. 37 U. S. 12 Pet. 524 (9 L, ed. 1181); Mandamus will lie to compel the performance of duties purely ministerial in their nature, and so clear and specific that no element of discretion is left in their performance; but as to all acts or duties necessarily calling for the exercise of judgment and discretion, on the part of the officer or body at whose hands their performance is required, mandamus will not lie. High, Extr. Legal Rem. 2d ed. § 30. and that said county commissioners had transmitted said certificate to said Walker, secretary, etc., on December 15, 1888. The motion to quash the rule, after having been argued by counsel for the respective parties, was on January 12, 1889, submitted to this court for its decision. It is contended, by the respondents, that the injunction awarded by Judge Campbell, referred to in the petition, was void, because a court of equity has no jurisdiction to restrain a public officer from performing a plain duty required by the Constitution. On the other hand it is insisted for the petitioner that if any jurisdiction existed for the injunction, the action of the circuit court in the mandamus proceedings is | an office; but where such title has been established by a judgment of the circuit court, and defendant continues in adverse possession of the office, it should issue. Mannix v. State (Ind.), 15 West. Rep. 109. Nor will the writ be granted where there has been no actual vacancy in the office, and the present incumbent is rightfully in possession. Rose v. Knox Co. 50 Maine, 243; State v. Whittemore, 11 Neb. 175. Mandamus does not lie ordinarily; the determination of the question of title to a disputed office upon proceedings in mandamus would be to determine the rights of the de facto incumbent in a proceeding to which he is not a party. St. Louis County Court v. Sparks, 10 Mo. 118; Com. v. Per New York, 3 Johns. Cas. 79; People v. Detroit, 18 It will not be awarded to compel an act by a pub-kins, 7 Pa. 42; People v. Forquer, 1 Ill. 68; People v. lic officer, in regard to which he may exercise his judgment or discretion. People v. Troy, 78 N. Y. 33; Howland v. Eldredge, 43 N. Y. 457; San Mateo Co. v. Maloney, 71 Cal. 205; People v. Chapin, 4 Cent. Rep. 183, 103 N. Y. 635. Mandamus will not issue upon the petition of a private citizen to compel a public officer to act in a public matter. Mitchell v. Boardman, 4 New Eng. Rep. 764, 79 Maine, 469. Will not issue, where issuance would be useless. Mandamus will not issue when the thing commanded by it would be an idle and useless ceremony (Mitchell v. Boardman, 4 New Eng. Rep. 764, 79 Maine, 469); or would prove unavailing. Woodbury V. Piscataquis Co. 40 Maine, 304. Where the granting of the writ would have the effect of admitting a second person to an office already filled by another, both claiming to be duly entitled thereto, resort must still be had to further proceedings to test the disputed title. Rex v. Colchester, 2 T. R. 260. So it will be withheld where the applicant has not shown himself to be duly elected, and the only effect of interfering would be to declare the election void. State v. Judge of Ninth Judicial Circuit, 13 Ala. 805. Prohibition and mandamus; writs distinguished. Mandamus is an affirmative remedy, while prohi So, although a statute makes it the duty of the county judge to canvass the returns of the election upon the question of location of a county seat, mandamus will not go to compel such judge to re-bition is negative in its nature. Ibid. ceive returns which he has already passed upon and rejected. Arberry v. Beavers, 6 Tex. 457. Mandamus lies to compel the secretary of state to deliver the returns of an election for governor and lieutenant-governor to the speaker of the house of representatives. But it appearing that the secretary had already delivered the returns to a person not entitled thereto, the question whether the writ should then issue was reserved for further argument. High, Extr. Legal Rem. § 124 b, citing State v. Hayne, 8 S. C. 367. Another distinguishing feature of the writ is that it is more a preventive than a corrective remedy, and issues only to prevent the commission of a future act, and not to undo an act already performed. State v. Stackhouse, 14 S. C. 417; High, Extr. Legal Rem. 2d ed. 606. Where an election, by the terms of a statute, is to be ordered at a certain time, the presumption being that the officers charged with the duty concerning it will perform it at the proper time, an application for a mandamus prior thereto is premature. State v. Coahoma Co. 64 Miss. 358. No prohibition will issue; even though the final disposition was made after the judge had been served with a rule to show cause why a writ should not issue, and even though similar cases may still be pending in the same court. U.S. v. Hoffman, 71 U. S. 4 Wall. 158 (18 L. ed. 354); Wells, Jur. 502. Under a Code of Civil Procedure declaring the writ of prohibition to be the counterpart of the writ of mandamus, the word "counterpart" is construed only to illustrate the operation of the writ when issued in a proper case, and it does not enlarge or add to the class of cases in which the remedy may be used. Maurer v. Mitchell, 53 Cal. 289. Title to office cannot be tried by mandamus. The title to an office, as against one actually in possession under color of law, cannot be tried by The writ of prohibition agrees with both injuncmandamus. The proper remedy is by quo war-tion and mandamus in this: that, where there is an ranto. French v. Cowan, 4 New Eng. Rep. 688, 79 adequate remedy at law, it is not available. State Maine, 426. v. Braun, 31 Wis. 606. A writ of mandate cannot issue to settle title to Where there is a statutory mode of testing con See also 10 L. R. A. 381. such an abuse of its powers and jurisdiction as | without authority, it was void, and that there will be prevented by prohibition. It is thus was no contemp: in disobeying it. The court apparent that the important question is, Did in its opinion says: the Judge have jurisdiction to award said injunction? In Walton v. Develing, 61 Ill. 201, it was held that "Where the law plainly requires an officer to perform a duty and he is not exceeding or abusing his power, but fairly acting within the same, and a court issues a writ to restrain him from its performance, he must discharge his duty as prescribed by law." That case was a proceeding for contempt against election officers for holding an election in disobedience to an order of injunction, and in which the court held that, the injunction having been issued tested elections the writ is not available. Kemp v. Ventulett, 58 Ga. 419. See, as to the distinction between prohibition and injunction in Indiana, Bluffton v. Silver, 63 Ind. 263. Design and object of writ of prohibition. The original design of the writ is to prevent an encroachment of jurisdiction. Thomas v. Mead, 36 Mo. 233; Wells, Jur. 505. Its object is to restrain inferior courts from exercising jurisdiction where they do not properly possess jurisdiction at all, or else to prevent their exceeding their limits in matters of which they have cognizance (People v. Marine Court, 36 Barb. 341); and is used to keep such courts within the limits and bounds prescribed for them by law. People v. Works, 7 Wend. 483; Ex parte Roundtree, 51 Ala. 42; Quimto Appo v. People, 20 N. Y. 531. Upon the application for the writ the only inquiry which will be entertained is as to the jurisdiction of the court against which the relief is invoked. State v. Judge of Twenty-Sixth Dist. Ct. 34 La. Ann. 782; High, Extr. Legal Rem. 609. If the inferior has prima facie jurisdiction, a superior court will not interfere by prohibition. State v. Judge of Superior Dist. Ct. 29 La. Ann. 360. If the inferior court has jurisdiction a mistaken exercise of that jurisdiction will not justify a resort to the extraordinary remedy by prohibition. Ex parte Greene, 29 Ala. 52; Ex parte Peterson, 33 Ala. 74; Ex parte State, 51 Ala. 60; Buskirk v. Judge of Circuit Ct. 7 W. Va. 91; Murphy v. Colusa County Superior Ct. 58 Cal. 520. Like all other prerogative writs, it is to be used with great caution and forbearance, for the furtherance of justice and to secure order and regularity in judicial proceedings, when none of the ordinary remedies provided by law are applicable. Washburn v. Phillips, 2 Met. 296. The court will not issue a prohibition in a case where it is not justified, for the sole purpose of establishing a principle to govern other cases. U. S. v. Hoffman, 71 U. S. 4 Wall. 158 (18 L. ed. 354). A plea to the jurisdiction must be filed and be overruled before a prohibition will lie. State v. Judge of Fifth Dist. Ct. 29 La. Ann. 806; Barnes v. Gottschalk, 3 Mo. App. 111. In California the action of a board of supervisors will not be arrested unless the proceedings themselves are absolutely without, or in excess of, their jurisdiction. People v. Kern Co. 47 Cal. 81. In Indiana it has been held that it is sufficient that some collateral matter arising in the cause be beyond the jurisdiction in order to justify the writ. Jasper Co. v. Spitler, 13 Ind. 236. In New York it lies to prevent the exercise of unauthorized power in a cause or proceeding of which the inferior tribunal has jurisdiction, no less than when the entire cause is without jurisdiction. Quimbo Appo v. People, 20 N. Y. 531: Sweet v. Hulbert, 51 Barb. 313. See also 4 L. R. A. S63. "In such case what must control the officers, the mandate of the court, or the plain behests of the law? The court, as well as the inferior officer, must be governed by the law. When the law imposes a positive duty upon a public functionary and a court commands him not to perform it, he must obey the law and disobey the writ of the court.' In Moulton v. Reid, 54 Ala. 320, it was decided that a court of equity has no jurisdiction to enjoin the person declared elected to a municipal office from using his certificate of elec tion where the law provides for a contest. Not issued to review or correct either law or fact. The object of a writ is not to correct error either of law or fact. Wells, Jur. § 517, p. 504. So, if the action of a court is subject to review in any ordinary mode of appeal, the writ will not be issued. People v. Wayne County Circuit Ct. 11 Mich. 393. A mere outstepping of its authority in a portion of its judgment, or any other error in its proceedings, is only a ground for a review or appeal, and not of prohibition. People v. Court of Com. Pleas, 43 Barb. 278. But it is held in Alabama that a prohibition will be awarded to vacate a final decree, or prevent its enforcement, which is a nullity, and from which, on account of the entire absence of adverse parties, no appeal can be taken. Ex parte Lyon, 60 Ala. 650. A bill in chancery may be fatally defective in averments, may abound in imperfections, and may even be filed in a district where the defendants are not liable to be sued; yet these are mere matters of defense, and cannot be reached by a writ of this character. Ex parte Greene, 29 Ala. 52. The petitioner must have sought all available relief, by moving to dismiss the cause for want of ju risdiction in the court itself, before he can obtain a prohibition. Ex parte Hamilton, 51 Ala. 62. Proceedings, to be prohibited, must be judicial. The proceedings to be prohibited must be of a ju dicial character. Shortt, Mandamus & Prohib. 452. A prohibition would not be granted in respect of any proceedings belonging to the executive government of the country. Chabot v. Morpeth, 15 Q. B. 446, 459; Shortt, Mandamus & Prohib. 452. The writ is not available to restrain the performance of ministerial acts, such as collecting taxes, locating county seats, and the like, however erroneous such ministerial acts may be. State v. Clark County Ct. 41 Mo. 44. It will not go if the proceedings which it is sought to prevent are only ministerial. Ex parte Braudlacht, 2 Hill, 367; Atkins v. Siddons, 66 Ala. 453; State v. Clark County Ct. 41 Mo. 44; State v. Gary, 33 Wis. 93. 1 In Smith v. Myers, 109 Ind. 1, 7 West. Rep. 90, it was held that "The courts have no jurisdiction of a suit to enjoin the secretary of state from delivering to the speaker of the house of representatives the sealed returns, alleged to be wrongful and illegal, of an election for lieutenant-governor, which are directed to the speaker, as required by law, in care of the secretary, and are to be delivered to him by the latter." Our Constitution, art. 7, § 3, declares: "The returns of every election for the above named officers" (one of whom is the governor) "shall be sealed up and transmitted by the returning officers to the secretary of state directed 'to the speaker of the house of delegates,' who shall immediately after the organization of the house, and before proceeding to business, open and publish the same in the presence of a majority of each House of the Legislature, which shall for that purpose assemble in the hall of the house of delegates." And ample provision is made by statute to compel the production of papers before either House of the Legislature. Code 1887, § 7, chap. 12. The 18th section of article 6 of the Constitution provides that the regular sessions of the Legislature "shall commence on the second Wednesday of January," which for the year 1889 was on the 9th day of January. The court in its opinion says: "It is a principle of constitutional law, declared in our Constitution and enforced by many decisions of our own and other courts, that the departments of governinent are separate and distinct and that the officers of our department shall not invade any other. To interfere by injunction in this case would involve a violation of this fundamental principle, as a conflict between two great departments of the government would result from an exercise of the jurisdiction invoked by the appellant. The General Assembly has power to compel the attendance of persons at its sessions and to compel the production of papers which are necessary to enable it to justly and intelligently discharge its duties and exercise its functions. If the judiciary should enjoin the secretary of state from delivering to the speaker the papers described in the complaint, and the General Assembly should demand their delivery to the officer to whom they are addressed, a conflict of authority would arise which no tribunal could effectually determine. If the secretary of state should in such case yield to the demand of the General Assembly, he would be in contempt of the authority of the court, and liable to punishment; if, on the other hand, he should disobey the command of the General Assembly, he would be in contempt of its authority and subject to punishment. If the General Assembly should deem it the duty of the secretary of state to deliver the papers, it would not require the aid of the courts to compel its performance, for it possesses the power to coerce the production of papers and documents . . . It is apparent, therefore, that as on the one hand, the It will be observed that the said injunction is General Assembly would not require the aid of the only ground alleged in the petition for the the courts, by mandamus or otherwise, to writ of prohibition; and while it is apparent compel the production of papers addressed, by from what we have already said that the mandirection of the Constitution and the statute, to damus complained of was improperly awarded the presiding officer of one of its branches, so, by the circuit court, yet, as the petitioner does on the other hand, the courts cannot by injunc- not by his petition show such interest or right tion restrain it from obtaining those papers, as would entitle him to interfere in or comnor by indirection produce the result by stop-plain of said mandamus, we cannot at his inping them in the hands of one whom the law inakes a mere custodian." Our Constitution and statute in respect to the question before us are almost identical with those of Indiana, and the facts in the case from which I have quoted and the one at hand are so nearly alike as to make the opinion from which the above quotation is taken a very apposite, though not an absolutely binding, authority in the case under consideration. Without referring to other authorities, of which there are many, it is sufficient to say that, according to well settled principles of law, I am clearly of opinion that, under our Constitution and statutes, a court of equity bas no jurisdiction to award an injunction in a case such as this one, made in the petition in this case. See also 14 L. R. A. 643. It is thus shown that, at the time the injunction in question was granted, the Legislature was in actual session-indeed it was presumably this very fact that prompted the issuance; for otherwise there could have been no deliv ery of the election returns by the secretary of state, and therefore no necessity for the injunction. And the Legislature, a co-ordinate branch of the state government, being in session and having exclusive control over the said certificate or election returns for governor, and possessing plenary power to compel their delivery, the court has no jurisdiction or control over said returns by injunction or otherwise. They had been delivered to the secretary of state in the manner prescribed by law before any proceedings had been taken in the courts in respect to them, as is shown in the petition in this case. As the statute (§ 23, chap. 3, Code) has made it the positive duty of the secretary of state to deliver the same to the speaker of the House, the said injunction was an absolute nullity and constituted no ground for the refusal of said officer to discharge that duty. stance, for any ground alleged in his petition, take cognizance of said proceedings or award the writ of prohibition. For these reasons, the motion to quash the rule is sustained and the writ denied. Nathan GOFF, Petitioner, v. E. W. WILSON. (....W. Va.........) *When neither the speaker of the house of delegates nor the joint assembly of both houses of the Legislature convened under section *Head note by SNYDER, P. See Fleming v. Guthrie, ante, 53; and Carr v. Wil son, post, 64. 3 of article 7 of the Constitution of this State for | islature is directed to provide, by statute, for the purpose of opening and publishing the returns contest, and the common-law mode is abrogatof the election for the office of governor, does in ed; (3) ample time is given from the date of the fact open and publish the returns in respect to election to the beginning of the official term to said office, or declare any person elected to that office, this court cannot, by mandamus, adjudge prepare for and determine the contest. the person who appeals from the returns certified to the speaker of the house to have received the highest number of votes for that office to be the governor, and compel the person who was the governor during the preceding term to deliver the office and the insignia to him. (March 12, 1889.) PETITION of Nathan Goff, claiming to have been, on the 6th day of November, 1888, elected governor of West Virginia, for a mandamus to compel E. W. Wilson whose term of office as governor expired on the 4th day of March, 1889, to turn over to him the said office of governor. Petition dismissed. Goff claimed that he was entitled to the office notwithstanding the Legis:ature had, pending a contest for the office, refused to declare him elected. Wilson claimed that such declaration was absolutely essential to give title to the office, and that until such declaration was made it was his duty under the Constitution to hold over until his successor had been declared elected and had qualified. See Ex parte Smith, 8 S. C. 495, 514-519. IV. Under section 3, art. 7, Const., providing that the person having the highest number of votes "shall be declared elected" the election is not complete until such declaration is made; and the person claiming to be elected cannot qualify. People v. North, 72 N. Y. 124, 127-130; People v. Crissey, 91 N. Y. 616, 627. The Constitution provides that "All officers shall continue to discharge the duties of their respective offices until their successors are elected, or appointed and qualified." Const. 1872, 6, art. 4; Const. 1863, § 6, art. 3; Statute, § 2, chap. 7, Code. Ineligibility to hold office for more than one successive term refers "solely to a popular reelection for a full term of service, and not to his [the officer's] continuing ex officio until his successor is elected and qualified." Ex parte Lawhorne, 18 Gratt. 85–93. Snyder, P., delivered the opinion of the court: On March 7, 1889, Nathan Goff presented The petition and facts are set out in the opin- his petition to this court, then in session, in ion of the court. which the petitioner avers, in substance, as fol Messrs. John A. Hutchinson and W. P. lows: Hubbard for petitioner. That at the general election held in this State Messrs. E. W. Wilson and J. W. St. on November 6, 1888, he was voted for and Clair, for respondent: I. The Constitution of this State has conferred upon the Legislature, in Joint Assembly, the power to ascertain and declare the result of election for governor, and to determine contested elections for that office. Const. 1863, § 5, art. 5; Const. 1872, § 3, art. 7. elected by the qualified voters to the office of governor of the State for the term commencing on March 4, 1889; that the commissioners of the respective county courts ascertained the result of said election in their several counties in respect to the office of governor, in the manner prescribed by law, and made out. and signed certificates, which they transmitted, in due form of law, to II. The jurisdiction of the Legislature, in the secretary of state, in sealed envelopes diJoint Assembly, to declare the result, and to rected to the speaker of the house of delegates; determine such contested election is exclusive: that the secretary of state delivered said certifi(1) because the power is conferred upon a co-cates to the speaker of the house as required ordinate department of government; (2) because both the office and the mode of declaring the result of an election, and the manner of contesting it, are created specifically by the Constitution. Cooley, Const. Lim. 5th ed. 785 and note; Batman v. Megovan, 1 Met. (Ky.) 533, 538, 539; Grier v. Shackleford, 2 Const. Rep. (S. C.) 642, 646; State v. Marlow, 15 Ohio St. 114, 133-136; People v. Goodwin, 22 Mich. 496, 501, 502, Baxter v. Brooks, 29 Ark. 174, 182, 187; State v. Baxter, 28 Ark. 129, 142; State v. Mason, 77 Mo. 189; State v. Lewis, 51 Conn. 113, 127; State v. Harmon, 31 Ohio St. 250, 257260; Collins v. Knoblock, 25 La. Ann. 263; Rogers v. Johns, 42 Tex. 339, 340, 341. by law; that said certificates contained the result of said election for the auditor and the other executive officers as well as for governor and all of said county certificates were inclosed in one envelope; that the speaker of the house in the presence of a majority of each house assembled in the house of delegates for that purpose, opened the envelopes containing all the said certificates and returns, and as to the aforesaid offices other than governor published the same; and as to the office of governor the said certificates and returns, after they had been opened as aforesaid, were delivered to a committee of the Legislature, appointed under the statute, relating to contests for governor, to report upon the same; that the said certificates Where power under the Constitution is pure- and returns with respect to the office of gov ly political the construction given by the Leg-ernor showed that for said office petitioner reislature will generally be implicitly followed, People v. La Salle Co. 100 Ill. 495, 501, 504. III. It is the intent of the Constitution that the de jure title to the office shall be ascertained and determined before the beginning of the official term. This appears because: (1) jurisdiction is conferred upon the Legislature, in Joint Assembly, to try the contest; (2) the Leg See also 5 L. R. A. 334. ceived at said election 78,714 votes, A. B. Fleming received 78,604 votes, and all other persons together received for said office less than 5,000 votes, thereby showing that the petitioner had received a plurality of all the votes cast for said office at said election; that said A. B. Fleming had caused a notice of contest for the office of governor to be given to petitioner, |