Richardson v. Farrar ( 1892 )

Fauxtleroy, J.,

delivered the opinion of the court.

The record shows that George Richardson, A. P. Ibice, F. W. Holman, F. T). Read, W. P. Bradshaw, A. J. Price, V. T. Hubbard, O. F. East, R. H. Walton, W. E. Hubbard, R. A. Bradshaw, W. IT. Hubbard, E. W. Moving, R. S. Harris, Edward Hherbert, T. Carter, W. W. Swan, Samuel A. Moore, G. I). Warrener, Thomas R. H. Cocks, and 8. D. Hubbard (citizens and qualified voters of Prince Edward county, Virginia, numbering twenty-one, and comprising members of both the Democratic and Republican parties, and representing the intelligence, integrity, and respectability of the people of said Prince Edward county), aggrieved and outraged by what they believed and charged had been gross fraud and false returns in the conduct of the election of May 28th. 1891, for county and district officers of said county, whereby the. will of the people, as expressed at the polls, had been defeated and defrauded by .the returning officers and others conducting said election, filed in the clerk’s office of said county court, in conformity with the requirements of the statute in such ease made and provided (Code of 1887, sec. 160), within the time, and in all respects in accordance with the terms and conditions prescribed by law, their complaint, of the fraudulent conduct and false return of tlxe general election for county officers of said county, held o'n the 28th day of May, 1891, from three precincts in said county — -viz.: “ Bpring Creek,” “Rice’s,” and “ Worsham ”■ — -whereby the candidates who received certificates of election — namely, William H. Ewing, for county treasurer; E. T. Clark, for commissioner of the revenue; and Thomas H. Dickinson, for sheriff — were fraudulently credited by twenty votes at the first, thirty votes at the second, and seventy votes at the last of the above-named products, respectively, more than had been cast for them, respectively; and that their opponents were defrauded of a like number of votes, at each of the said precincts, respectively, 11111011 had been lawfully east for them; whereby the result of the said election was reversed, and the candidates aforesaid got certificates of election, when, in fact, they had been defeated, and their opponents, respectively, had been elected, and- were entitled' to he so certified.

Within the time prescribed h}r law the said AVilliam II. Ewing, E. T. Clark and Thomas II. Dickinson appeared, and, without demurrer, plea in abatement, or other dilatory proceeding, filed their “ counter complaint,” setting forth the list of voters, alleged to have voted for their opponents, which they would contest. The issue having been joined in the manner prescribed by the statute the petitioners (relators) took their depositions, covering 248 pages of legal cap paper, which were duly returned, under seal, on the 7th day of July, 1891; and the contestees took no evidence whatever. The case, having been docketed at the June term, was continued to the July term, 1891, of tlie said county court, of Prince Edward county, when the said Ewing, Clark and Dickinson tendered their several motions to quash and dismiss the petition or complaint aforesaid, and the complainants (contestants) moved the court to refuse leave to tile the said motions as being insufficient in law and contrary to the statute; which motion the court overruled, and, by its order of July term, 1891, allowed the said several dilatory motions and defences to be docketed; and the court took until the, next following term to consider of its judgment thereon. At the August term, 1891, the court sustained the said motions to quash the complaint, and dismissed it from the docket upon the ground of misjoinder of defendants. Whereupon, the complainants asked leave to amend by severing and filing, nunc pro tunc, three several petitions against the three said contestees respectively, but in all other respects conforming to the original in tenor, aud effect; but the court overruled the motion of complainants to amend, as aforesaid, and dismissed the complaint, and the contest instituted thereby under section 160, Code of 1887, without a hearing and determination upon the merits, as the statute expressly and imperatively prescribes.

To this action of the said county court the complainants obtained a writ of error from the circuit court of Prince Edward county; and that court affirmed the action of the county court.

The defendant, Judge F. R. Farrar, in his answer to the petition for a writ of mandamus hied against, him by the petitioners, George Richardson and others, of the county of Prince Edward, in this court, says : “At the July and August terms of said Prince Edward county court this respondent heard and determined a complaint, wherein the persons now here petitioning were complainants, and William H. .Ewing (treasurer), T. H. Dickinson (sheriff), E. T. Clark (commissioner of the revenue for said county), * * * were, jointly, defendants. Each of said defendants filed a separate motion, in writing, to quash and dismiss the said complaint. The said sheriff, treasurer and commissioner of the revenue each founded his motion upon the ground that his claim and right to his said office was separate and distinct from the claim and right of each and every other person to any office held by him ; and that he, bylaw, was entitled to have his said right and claim heard and determined in proceedings separate and apart from those involving the claim and right of any- other person to any- other office held by him.

“ This respondent was of opinion that the questions raised by-said motions should be heard and determined before inquiring into the truth of the matters alleged in the complaint. He did so hear and determine said motions, and did judicially-decide said motions in favor of the defendants; and, having so decided, dismissed the said complaint.

“ This respondent further sayrs, that the right, under the authority' given him by the Governor of Virginia, to hold the county- court of Prince Edward county has now terminated, and that J. M. Crute is now the judge of said court, duly-elected and qualified, and alone authorized to hold said court.’-’ And J. M. Crute, judge of Prince Edward county court, appears and answers, and adopts the answer of Farrar, Judge. It manifestly- appears from the record of the proceedings in the county court of Prince Edward county, aforesaid, that the said court refused to hear the complaint and the contest filed by the petitioners under the 160th section of the Code of Virginia, 1887, and has refused to proceed to determine said contest on the testimony (which, in behalf of the contestants, petitioners, consists of about three hundred pages of depositions of witnesses and documentary evidence), and has refused and failed to proceed upon the merits of the complaint and to decide the same according to the constitution and the laws, as the mandate of the said statute expressly required it to do.

The refusal of the county court to hear and determine this contest, and dismissing the complaint on motion to quash for misjoinder of defendants, was not error for which a writ of error would lie; and the misconception of the complainants in obtaining, and the improvidence of the circuit court in awarding the writ, cannot affect the original jurisdiction of this court to direct a peremptory mandamus to the county court of Prince Edward county to compel it to reinstate and hear and determine the complaint and the contest, according to its merits, as the law makes it its- duty to do. All the requirements of the statute as to the complaint, it- is conceded, have been complied with. The statute does not limit the contest to one defendant, nor require it to embrace more than one, and it authorizes and requires no pleadint/s, except the “ complaint ” and “ counter-complaint ” ; and the motion to quash and dismiss the complaint for misjoinder of defendants was not a legal and proper plea or defence, where demurrer and mere dilatory defences would lie, which our statute provides shall be made by plea in abatement only, and that under oath and before any plea in bar is made. Code, 1887, sections 3259, 3260, 3278; 25 Gratt. 215-216 ; 1 Daniel Ch. P., 300-330 ; Almond v. Wilson, 75 Va. 750-623; Henley v. Perkins, 6 Gratt. 623; Vaiden v. Stubblefield, 28 Gratt. 153.

In this case a general appearance was entered and a joint counter-complaint was filed by the three defendants, thus making up the issue and leading complainants to believe that mere technical and dilatory defences would not be resorted to, and inducing them, at great labor and expense, to go on and prepare their case for hearing and determination upon the merits. Every principle of justice, as well as the established practice and the law, will hold the contésteos to have waived their dilatory defences, and to he precluded from afterwards making them. Adams’ Equity, 695 and note; 1 Daniel Oh. P., 352 and note ; Vaiden, v. Stubblefield, 28 Graft. 153.

It wras manifest error to admit the defence of misjoinder of defendants in this case. The statute is a broad and summary remedy for fraud in public elections without formal pleadings, and provides a mode of contest, without technicalities, and directing the county court to hear and determine the contest upon the merits and the proofs according to the very truth and right of the matter in controversy; and, even had there been error of misjoinder of defendants, the fullest privilege of amendment should have been allowed. Although a plaintiff cannot demand several matters of different natures, against several defendants, a demurrer will not lie, even though the defendants be unconnected with each other, where there is one common interest centering in the issue in the cause, and that issue being one of fraud. Almond v. Wilson, 75 Va.; Hill’s Adm’r v. Hill, 79 Va.; 9 Va. L. J. 50.

The facts in this case disclose a charge of fraud, injurious to all the people of the county of Prince Edward, tainting alike and equally affecting the title to office of one and all the defendants named; and, both at common law and in equity, the defence of misjoinder of defendants is not allowed to be made in cases of “ iort,” nor in cases of fraud. (5 Rob. P. (new) 72, 73; 2 Rouvier L. D. 170; 2 Saunder’s P. and Evid. Pleas in Abatement; Henley v. Perkins, 6 Gratt. 623; 1 Danl. Ch. P. 333, 342, 343, 344, 345, and notes; Almond v. Wilson, 75 Va., and cases cited; Ellyson, ex-parte, 20 Gratt. 10; Nelms, &c. v. Vaughn, 84 Va.) The complainants are not competing and contesting candidates; but, in behalf of the public, are seeking, by the summary method provided by the statute, (o investigate and redress a fraud upon the public franchise in the conduct and return of the election of county officers • of Prince Edward county; and they have been denied that hearing upon the evidence and decision upon the merits, which the statute makes it mandatory upon the court to give to them and all the people of the county whom they represent, by the admission of a mere technical, dilatory defence and the dismission of their complaint, in violation of the letter and the spirit of the law.

The court declined jurisdiction, and outlawed the complaint, upon a mere preliminary question or point of 'form; and, refusing the motion of the complainants for leave to amend by dismissing as to all but one, dismissed the complaint without ever hearing it, and ended the contest of a fraudulent election and false return of county officials, without ever going into an investigation, and by a denial and defeat of public justice. (5 Queen’s Bench, 255, Law Reports, 1869; Regina v. Brown, 90 English C. L. 760; Regina v. Freeman, of Liecester, 15 Queen's B. 691, 69 Eng. C. L.; Castellon v. St. Louis, 28 Mo. 274; West v. Ferguson, 16 Gratt.; Mann v. Cassidy, p. 352-355, Brightly’s Digest of Election Cases, and pages 337 to 343; Paine on Elections, sec. 841, p. 697, 698; Ex-parte Yeager, 11 Gratt.; citing 16 East.; 23 Gratt. 579-584; 2 Gratt. 819; 80 Va. 43-45; 9 Va. L. J. 104; 22 Gratt. 458 ; 8 H & M., Dew v. S. P. Co.)

In Brown v. Crippen & Wise, 4 H. & M. 173, Judge Tucker, speaking for the court, said: “ The removal of the cause in such a case is a matter of right which ought not to be refused to any defendant who makes out his case and complies with the terms of the law. Being of opinion that the county court refused to perform a duty which was enjoined by law, a mandamus, at that stage of the cause, was the only remedy. The defendant could neither appeal nor obtain a writ of error or of supersedeas until the final decision of the suit, when it might be too late.” In the case of Cowan v. Fulton, Judge, 23 Gratt. 579, the circuit judge of Pulaski county made his return to the rule nisi, stating that he had stricken the case from his docket, without hearing it on its merits, because he was of the opinion that he had no constitutional right to hear or try it; that the law requiring him to do so was unconstitutional. -Fudge Bouldin, in delivering the opinion of this court in that case said : “ But it is insisted that, conceding the law referred to, to be constitutional, still the judgment of the circuit court dismissing the cause for want of jurisdiction .and striking it from the docket is a final judgment in the cause; and the term at which the supposed judgment was rendered having passed by it is not competent to the appellate court, by mandamus, to compel, in effect, a rehearing of the cause. If the premises were true the conclusion might, perhaps, be conceded; for it is certainly not regular nor proper to use the writ of mandamus to review’or rehear the judgment of a subordinate court. But the fallacy of the argument consists in the assumption that there was a judgment in the cause; whereas the court positively and unequivocally refused to pass on it at all, * * and merely directed that the cause be dismissed and stricken from the docket. ■ It was a simple refusal to hear and decide the case; and, this court having held that an appeal .lies from such refusal, it is exactly the case to which the high remedial writ of mandamus is most frequently applied to prevent a defect or failure of justice.” This case seems to be, in all respects, analogous to the case at bar. In the case of Page v. Clopton, Judge, 30 Gratt., Judge Burks says : “ If the conditions of the statute are satisfied the right of the party is clear; but the duty of the judge is equally clear, and it is imperative. ITe has no discretion in the matter.” In the ease of Kent, Paine & Co. v. Dickinson, Judge, 25 Gratt., Judge Christian, for this court, says : “ Original jurisdiction to award writs of mandamus, upon the principles of the common law, has been conferred on this court by the constitution and laws of the state; and, in accordance therewith, I think we must say to the judge of the circuit court of Charlotte that this cause is properly before him; and that he must go on and hear and finally dispose of the same. For that purpose a peremptory mandamus should issue.” High on Extraordinary Rem., section 272, says : “ The denial by a court of an absolute right conferred by statute has been held sufficient to warrant relief by mandamus.” See, also, Idem., sections 230, 251, 256, 258; 7 Peters, 634; 8 Peters, 588 ; Town of Danville v. Blackwell, Judge, 80 Va. In the case of Dew v. Judges of Sweet Springs District Court., 3 H. & M., p. 1, Judge Tucker said: “Judge Buller informs us that the writ of mandamus is, in England, a prerogative writ, issuing out of the Court of Kings Bench (as that court has general jurisdiction superintendency over all inferior jurisdictions and persons), and is the proper remedy to enforce obedience to acts of parliament, * * and in such case is de mandoble of right. Bull. N. P. 199. To enforce obedience to an act of parliament the-proper remedy is by writ of mandamus, which,-in such case, is demandahlc of right. Here the office claimed is founded on an act of the legislature, * * * and is, moreover, an office (in the case at bar an inrestigation) of a public nature, and which relates extensively to the administration of justice through a very large portion of the commonwealth. Blaekstone calls it a high prerogative writ of a most extensive remedial nature, and that it may be issued, in some cases, where the injured party hath also another more tedious method of redress. 3 Black. Com. 110.” Judge Roane, in the same case, said : “ It is agreed, on all hands, that this writ (which, in England, is considered a prerogative writ) lies to admit or restore to an office which concerns the administration of justice; and that, in various other cases, it ought to go, on reasons "of public policy and convenience.”

The statute (sec. 160, Code of Virginia, 1887) is mandatory and peremptory that “ the returns of elections of county, corporation and district officers shall be subject to the inquiry, determination and judgment of the court of the county or corporation wherein the election was held, upon the complaint of fifteen or more qualified voters of such county, corporation or district of an undue election or false returns. The court shall proceed to determine the contest without a jury, on the testimony &c. In judging of such election or return, the court shall proceed on the merits thereof, and decide the same according to the constitution and laws.” A statute, pro bono publico, ought to be construed so that it may, as far as possible, attain the end proposed.

Hpon the inspection of the record which brings up the proceedings in this case in the county court of Prince Edward county, for the review of this court, we are clearly of opinion, that the said court- has refused to hear and determine the contest presented to it by the complaint, of the requisite number of duly qualified voters of the county of Prince Edward, who had, in every prescribed and requisite particular conformed to the statute for the ease made and provided, and erroneously and illegally dismissed their complaint, and the judgment of this court is, that its writ of peremptory mandamus shall issue and be directed to the incumbent judge of the county court of Prince Edward county, commanding him to re-in state the complaint, and to proceed- to- hear and determine the cause ■ presented by the complainants, upon the merits and the proofs according to the law as construed by this court.».