
    *Ellyson & als. Ex Parte.
    November Term. 1870,
    Richmond.
    i. Statute — County and Corporation Courts Can Vacate an Election. — Under § 69, of the act to provide for general elections, Sess. acts 1870, p. 97, the county and corporation courts have authority to vacate an election.
    a. Same — Same.—Though a person voted for has received the return and has qualified and entered upon the discharge of the duties of his office, the court may vacate the election, and direct another election to be held.
    3. Writ of Prohibition — Its Function. — The writ of prohibition is only a proper proceeding to restrain a judge from exceeding his jurisdiction; and not to correct an erroneous judgment in a case in which he has jurisdiction.
    This was an application to this court by Henry K. Ellyson, mayor of the city of Richmond, Thomas U. Dudley, sergeant of the city, and other city officers, for a writ of prohibition, to restrain the judge of the Hustings court of the city and the sergeant of the city from issuing and enforcing the writ of election which the judge had directed to be held for the purpose of electing a mayor of the city and other city officers, and asking that the said writ might be superseded.
    On the 4th Thursday in May 1870, an election was held in the city of Richmond for mayor, sergeant and the other city officers ; and the commissioners of election declared and determined that Henry K. Ellyson was elected mayor, Thomas U. Dudley was elected sergeant, and the other petitioners and others were elected to their respective offices.
    On the 4th of June 1870, a petition was filed in the clerk’s office of the court of Hustings of the city, by fifteen citizens of Richmond, complaining of the action *of the,commissioners of election in declaring Ellyson, Dudley and their associates to be elected. They stated in their complaint, that the judges of the election had made out their returns of the election and delivered the same to the clerk in due conformity to law. That by these returns it appeared that George Chahoon received a majority of the votes cast for mayor, Charles S. Mills received a majority of the votes cast for sergeant, and that other persons named had received a majority of the votes cast for their offices respectively. That notwithstanding this the commissioners of election had declared that Ellyson, Dudley, and their associates were elected; and that the clerk of the court of Hustings had certified accordingly to said parties. And the petitioners pray that the said false and wrongful declaration and determination of the commissioners of election and certificates of the clerk may be annulled and set aside; and that the judge may enquire and determine what is the true meaning and effect of the said returns of the judges of election, and adjudge and determine what persons received a majority of the suffrages of the electors according to said returns; and that the persons so adjudged and determined to have received a majority of said suffrages may be duly certified of that fact.
    Ellyson, Dudley and the other parties who had received the certificates, except one, filed their response to the petition. They deny that the judges of election in several of the precincts made out their returns, in conformity with law. They deny that it appeared by said returns of the judges of election that George Chahoon, for mayor, and the other persons for the respective offices named in said complaint, or any of them, received a majoritj of the ballots cast. On the contrary the respondents aver, that it appeared by the lawful returns made by the judges, that the said Chahoon and other persons did not, but that respondents *did, receive a majority of the ballots cast for the respective offices aforesaid. That it therefore is not true that the said commissioners of election in violation of law declared and determined that these respondents were elected to said offices respectively. And they insist that the said George Chahoon, &c., are not nor is any of them entitled to a certificate of election, &c. And they insist that they are entitled to said certificates on all the grounds and reasons to which appeal can lawfully and justly be made, to wit:
    1. That the lawful returns of the judges of said election required said commissioners so to determine and award the certificates.
    2. That a majority of all the lawful votes cast in said election were given and cast for respondents severally, for said offices respectively, and not for any other person or persons.
    The respondents further averred that a large number of illegal and fraudulent votes were cast at the election; that one thousand and twenty-one illegal and fraudulent votes so given were given or cast for each and every the said George Chahoon, for mayor, and other persons for the respective offices named in said complaint, and against the respondents. And they set out the number of said votes cast at different precincts of election. They aver that in the conduct of said election the election law was grossly disregarded and violated in important and essential provisions. And they each insist, that they should not be involved in a contest over title to an office, except with some one who claims the office himself.
    The councilmen and magistrates for Jefferson ward put in a separate response to the complaint, in which they object that the complainants were not proper persons to contest their election; and the complaint was dismissed as to them.
    Upon the filing the answer of Elly-son, &c., the complainants *moved the court to strike out and exclude such portions of 'the answer as related to illegal and fraudulent votes; which motion the court sustained.
    After a contest which lasted for nearly a month, the judge declared the election of the general officers mentioned in the complaint to be vacated and void, on two grounds: 1. The severance of the judges of election into two sets, holding two separate elections, in Jefferson ward. 2. The disregard by the judges in that ward of the provision of the statute which requires that the ballots shall be counted and the number of votes cast for each person voted for ascertained, and the tickets distinctly read and canvassed.
    On the first point it appeared, that for the first hour after the polls were opened and the voting had commenced, there were but two judges present; that after an hour a third judge was elected by the two; that for the first hour one judge at the window took the coloured votes, which were listed by one clerk, the other judge took the white votes at the door, which were listed by the other clerks; that when the third judge was appointed he attended to the coloured voters, and so throughout the day; that the voting places were some distance from each other, but in the same room; that, the white and coloured were voting at the same time, and the clerks and judges were attending to those votes they were taking, and not to the others.
    On the second point it appeared — That the ballots were counted after the voting was over, the white and black together, and the number 1,034 made out; that the ballots were not strung upon a string; that the judges read out and counted, each ballot, as required, until about 3 o’clock the next morning, when they got tired and stopped reading them, looked at each ticket to see if it was headed conservative or republican, placed them in two piles, the scratched tickets in a third, giving for each ticket headed conservative or republican, *a vote to each conservative or republican candidate, the offices to be filled numbering twenty-one.
    On the 23d of September 1870, A. B. Guigon, judge of the Hustings court of th'e city, issued his writ directed to the sergeant of the city, in which reciting that a vacancy had occurred in the office of mayor in the city, he directed the sergeant to hold an election to fill the vacancy on the 8th day of November: And similar writs were issued' as to the other offices which had been vacated by his previous judgment. And in pursuance of these writs the sergeant gave notice of the elections to be held on that day.
    To prevent the election so ordered by the judge this petition was filed; and with it a copy of the record of the case in the Hustings court. The petitioners insisted that the Hustings court having jurisdiction in the premises only in virtue of <j 69 of the act to provide for a general election, approved May 11th, 1870, had authority only to determine which of two claimants to any of said offices had right to the certificate of election thereto; and that said Hustings court had not by law, any jurisdiction or authority whatever to annul and vacate the entire election. That the only contest allowable in said court under said section, upon complaint by fifteen citizens or otherwise, is one between individual competitors for the specific office in question, and not a contest between the Commonwealth and a certified claimant or an incumbent of office, to try his title thereto, as if by quo war-ranto at common law. That there therefore cannot be and has not been a judgment of ouster under said § 69. And the petitioners having been duly elected and certified as elected, and having duly qualified and entered upon the duties of their respective offices as aforesaid, still continue, as they are advised is their right, in the full possession and in the faithful exercise of their offices. They insisted that the judge of the Hustings court had no authority *to vacate their offices, and in awarding writs of election, is acting beyond his jurisdiction and without authority of law; and they therefore pray a writ of prohibition may be awarded to inhibit the said A. B. Guigon from issuing and enforcing the said writs of election and to command him to supersede the same, and to prohibit the sergeant of the city from enforcing said writs, or from holding any election in obedience thereto, or any of them. The case was heard upon the motion for the writ, and was argued by Crump and Neeson for the petitioners, and by Ould for the judge.
    Eor the petitioners. The judge of the Hustings court declared the election which had been held null and void, but he did not award any certificate of election; and the persons who received the certificate have qualified and hold their offices: There has never been an ouster or removal of any of them from their offices. This we take to be an important fact in the case; as the question is not whether the judge of the Hustings court can issue his writ to fill a vacancy, but whether he can order an election for an office where there is an officer in it who holds it by the evidence of authority which the law has provided. We insist that where a party who has received the certificate has qualified and entered upon the discharge of the duties of the office, the office is not vacant, and it can only be vacated by due process of law. And this brings us to the consideration of the election law, and especially of the $ 69 of the act, which is the only authority of the judge of a Hustings or county court, to take any cognizance of election contests.
    After the adoption of the constitution of 1851, the act of 1852, ch. 71_, p. 64, Sess. acts of 1852, was passed, providing for the general elections, of which § 9 is the same as § 69 of the present act, with the addition to the latter of the closing sentence. And in 1858 another *"act was passed, of which $ 67 is the same as § 9 of the act of 1852. Sess. acts 1857-58, ch. 20, p. 29.
    Under the law as it existed prior to 1851, there was no occasion to provide any mode of turning out an incumbent of an office; because the writ of quo warranto provided for the case. The act of 1852 provides for cases where the parties had not been inducted into office. When the writ of quo warranto was served on an officer he was obliged to come in and state and prove his right to it. Angel & Ames on Corp. § 731, &c., | 738 and notes, $ 744, § 756 and note. Then there was remedy by mandamus for compelling an officer to perform some spe-! cific duty. Harrison v. Emerson and others, 2 Leigh 765; Ex parte Goodsby, 2 Gratt. 575. And there was the remetí by prohibition, to restrain and keep the officer within the limits of his authority.
    This was the state of the law when the constitution of 1851 was adopted, and the act of 1852 was enacted. These common law remedies provided for every case but one; that was to enquire before a person went into office, who was entitled to it: And that is the whole scope and object of these acts. They have now been in operation for eighteen years; and this is the first case in which it has been held that they gave to the court all the powers of the old common law writs.
    If we look to the state of the law at the time the act of 1852 was passed, we will see that nothing additional was necessary but a law to provide for the identification of the person elected to an office; all other cases were provided for by the common law remedies. The General Assembly exhibited g-reat ingenuity to provide for a fair and just election; but it was still necessary to entrust important powers to the officers conducting them; and there might be error or misconduct, and this l 69 was intended to provide a remedy in such cases. If this was all that it was necessary to provide for, can the court under any settled principles of construction, ^extend this act to embrace the writ of quo warranto and mandamus, as well as to supply the want which arose under the new system.
    It may be that the new law is or was deficient, certainly not an uncommon circumstance, but such defects are to be remedied by the legislature, not by the court. We deny that the proceeding under this act is intended to substitute the high prerogative writ of quo warranto. A proceeding under this $ 69 may be had against a man which may be found in his favor. Surely this would be no bar to the proceeding by quo warranto, on the part of the Commonwealth, if after he has gone into office he is found to»be constitutionally disqualified. The County courts have never had in Virginia, jurisdiction in quo warranto, mandamus and prohibition. This jurisdiction has been confined to the Circuit courts and the court of Appeals. This act gives to the County courts a certain amount of power, and declares that the judgment of the court shall be final and conclusive. And if this jurisdiction embraces all that is claimed for it, and is exclusive, as is contended, it must all be commenced within ten days after the election; and the act provides no mode by which the Commonwealth may come in and correct the errors or wrongs which may be committed in an election. Now the Commonwealth is not barred by the statute from filing an information in the nature of quo warranto. 2 Va. Cas. 51.
    We have been referred to a case from Pennsylvania to show that the State is bound by the decision of the County court. The case is not authority here; and we have not the Pennsylvania statute. We know nothing' of the policy of that State on the subject of elections; what is the character of their court of Common Pleas, whether it has power to issue writs of quo warranto, and can the State intromit in that event in such cases.
    ^Dissatisfaction at the result of elections is very common; will this court hold that a County court may, at its caprice, determine finally in all cases that the elections are void. It is a mooted question whether votes given to a person disqualified legally to hold the office, are to be counted or considered as thrown away. Some say if the disqualification was known at the time of the election they are to be considered as thrown away; if it was not known they are to be counted. Are these County courts to decide such questions as this finally, and without any mode of redress? Suppose it is alleged that the person who has received the largest number of votes is insane: Is that to be tried by this County court? Or suppose the charge is that voters have been intimidated, and thus prevented from voting: Is the County court to decide finally and conclusively-what is and what is not the kind or degree of intimidation which will avoid an election? And so the same enquiry may be put as to floods, contagion and many others; all of which may and must come up before these courts, and be finally and conclusively decided by them if the pretensions of the other side are sustained by this court. On the other hand if our construction of this act is sustained, and the writ of quo war-ranto is to be resorted to, it will be decided by a court into which the Commonwealth may go; there will be a jury; and there may be exceptions and an appeal.
    By \ 69 of this act a certain privilege is given to fifteen voters. They have no right from any other source. They have no right to ask for a quo warranto or mandamus. These are to be prosecuted by the attorney-general. All they-can do is to complain of an undue election, or a false return; and the complainants must set orft the facts upon which their complaint is based. An undue election and a false return' are distinct facts. There may be a true return and yet an undue ^election; and there may be a due election and yet a false return. The complaint in this case was of a false return. And they how contend that when they got into court they had a right to make up an issue on any ground they pleased. They made their election to, proceed for a false return; but the court instead of deciding upon that issue, whether or not the return was false, declared the election void.
    The election is the choice of the person, not the act of holding an election. The causes of an undue election is a legislative, not a judicial question. These fifteen citizens are to complain that some man has been unduly elected; and on that complaint it is not for the court to say what will occasion an undue election; but whether it is 1 such according to -the provisions of the statute.
    When we look to the concluding sentence of this § 69, which is an addition to the previous acts, we are, as we think, forced to the conclusion, that the law is intended only to embrace those cases which might not be corrected by the former common law remedies, and where there are two or more persons contestants claiming the office. That sentence is: ‘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 has been previously issued to such person. This is the only judgment which the court is authorized to render. The certificate is to be given to the one or the other claimant; and the authority to set aside an election is excluded by the very terms of the judgment which the statute requires the court to pronounce. ’ ’ We refer to Sedgwick on Const, and St. Daw 242, and 296, for rules in construing statutes of this nature. The dictum of the judge, and it is but an obiter dictum, in Ferguson v. West, 16 Gratt. 270, “that the contest may be carried on against his knowledge or against his wish,” *"could not have been used, if this concluding sentence of this § 69 had formed a part of § 9 of the act of 1852, under which the case of Ferguson v. West was decided: Under this act clearly there must be two parties before the court contesting and claiming the office.
    Upon the question of the jurisdiction of this court to grant the writ in this case we refer to Mayo, mayor v. James, 12 Gratt. 17; and Ferguson v. West, 16 Gratt. 270.
    For the Judge. The simple question before the court is whether the judge palpably exceeded his jurisdiction in rendering the judgment setting aside the election.
    Sections 40, 41, 42, of the statute, provided for five commissioners of election, whose duties were merely ministerial. They are to take the votes, count them, and certify who has secured the greatest number of votes. And so purely ministerial are their duties, that they are bound to give their certificate to the person who has the highest number of votes, though they know that his majority is made up twice or ten times over, by bad votes. And the application to the judge was in the nature of a mandamus to open the votes which the commissioners had refused to do and to count them. This was all that we asked. When the other party came in, they said — Though the commissioners did not count the votes at one precinct, yet they were elected because of fraud in our favor. This we moved the court to strike out, not on the ground taken by the judge, but because it was not responsive to our complaint.
    Upon the construction of this statute we insist that this judge had all the powers which could be exercised under the writ of quo warranto and mandamus; and that his authority is exclusive. And the judge held that he had no power to examine a vote; but that all other frauds or violence might be enquired into.
    *Under this \ 69, of the act, clearly the enquiry is the undue election or false return. The other matters are means to the end. This is the power and jurisdiction of the court. One enquiry is — was there an undue election? If it was not held on the right day, that is conceded to be an undue election. Then what judgment must the judge render? What has that to do with contestants? What other judgment can he render than that there was no election? Suppose it could be shewn that the polls had been kept open but half the day, and that a large portion of the voters had thereby no opportunity to vote. Suppose both candidates were non-residents or under age, or had committed a felony : In all these cases the only judgment that could be rendered is, that there was no election. Suppose only one of the candidates was a non-resident: The great weight of authority is that the election is void. People v. Cook, 4 Seld. R. 67. This case gives some cases of irregularity which would not defeat it, and others which would defeat it. Suppose a gang of rowdies take possession of the polls and stuff the boxes or take out ballots: There is certainly an undue election ; and these are all cases in which the court must have jurisdiction by the plain letter of the statute.
    In New York the proceedings are all in the name of the people; and there the writ of quo warranto is abolished. In Virginia this question has been decided, in the case of Ferguson v. West, 16 Gratt. 270. The fifteen citizens are in the place of the people. What is their proceeding but a quo warranto? The returns are the proper subject of a mandamus, the undue election of a quo warranto. The act gives to the court all the authority which would be exercised, either by mandamus or quo war-ranto. The first clause provides that the returns of elections of county, corporation and township officers shall be subject to the enquiry, determination and judgment of the respective County and Corporation ^'courts, upon complaint, &c., of an undue election or false return. And it then provides that the said courts, in jirdging of said elections, shall proceed upon the merits thereof, and determine finally concerning the same. No language could be plainer to give the authority to determine upon the validity of the elections.
    I might contend that this first clause confers the jurisdiction ; and that the second clause of this section relates merely to proceedings in a particular case. But if the first clause were stricken out of the act, the second gives the authority; the authority to declare that one of two persons is elected is an authority to declare that neither is elected. Why take testimony to invalidate an election, if the court cannot adjudge it invalid? How is the court to proceed upon the merits, if the merits are to be excluded from his determination? As to the sentence added to this section in the late act, it is merely directory, and is to be applied according to the nature of the case.
    I dismiss this branch of the case by saying that, even if, as contended by the other side, the second paragraph of $ 69 refers to a contest between two individuals, contestants for the office, the first applies to all matters of complaint concerning an election; and under it the court, in judging of the election (not the contest), shall proceed upon the merits of the election, and determine finally concerning the same. This was the view held by the court in Eerguson v. West, 16 Gratt. 270.
    But this statutory proceeding is not only plenary; it is exclusive. Commonwealth v. Beech, 44 Penn. R. 332; State v. Marlow, 15 Ohio St. R. 114.
    There is another view to be taken of this subject. Suppose that the true meaning of the statute is as is contended for on the other side. Did the judge of the Hustings court, when he interpreted it otherwise, transcend his jurisdiction, or simply commit an error of ^judgment? If the latter, then, according to all the authorities, prohibition does not lie; the complaint was certainly within his jurisdiction. Arnold v. Shields, 5 Dana R. 18; People v. Marine Court of New York, 36 Barb. R. 341. “The writ of prohibition does not issue to correct errors or irregularities in administering justice by inferior courts; but to prevent courts from going beyond their jurisdiction in the exercise of judicial power in matters over which they have no cognizance.”
    The jurisdiction over the subject matter is conceded, and it is contended by our opponents that the judge, in considering this subject matter within his jurisdiction, should have given a different judgment. This, if true, is only error, to which prohibition does not lie. Buller, J., opinion in Bd. Camden v. Home, 4. T. R. 382, 396-7; Mayo, mayor, v. James, 12 Gratt. 19. Nor can the writ of prohibition be issued to a ministerial officer; but only to a court or party. 1 Hill’s R. 195. Nor can it be issued to a judge after sentence, and he has nothing further to do. United States v. Hoffman, 4 Wall. U. S. R. 158.
    Suppose the prohibition issues, and the election is prevented: what is the situation of affairs? The prohibition does not reverse the judgment declaring the vacancy: that still stands. The temporary appointments made by the judge stand; and they continue to hold until the general election. Who, under this proceeding, is to fill the offices afterwards? Nor is the dilemma any less if it be replied that the present incumbents will fill the offices; for in that event the court, by its prohibition, determines who shall hold the whole term. State v. Allen, 2 Ind. R. 183.
    
      
      Writ of Prohibition. — In Nelms v. Vaughan, 84 Va. 698, 5 S. E. Rep. 704, the court, citing the principal case, among others, said: “In considering this question we will remark that the writ of prohibition is issued by a superior court directed to the judge and parties to a suit in an inferior court, commanding them to cease from the prosecution of the same, upon a suggestion that the cause originally, or some collateral matter arising therein, does not belong to that j urisdiction, but to the cognizance of some other court. The writ of prohibition may also be issued when, haying jurisdiction, the court has attempted to proceed by rules differing from those which ought to have been observed, or when by the exercise of its jurisdiction the inferior court would defeat a legal right, the consideration of which has often occupied this court, whose decisions are to be found numerously reported.”
      In McConiha v. Guthrie, 21 W. Va. 143, the court said: “In exparte Ellyson, the court says: ‘We cannot enquire whether the court had jurisdiction and authority in the particular case. That would be to convert a writ of prohibition, which proceeds upon an excess of jurisdiction, into a writ of error, which proceeds upon an error in the exercise of jurisdiction,’ 20 Gratt. 24. The rule seems to be well established that, where the inferior court has, originally, jurisdiction of the cause, prohibition will lie only in cases where such court, during the conduct of the trial, clearly exceeds its proper jurisdiction or powers in some collateral matter arising on the trial, but unless it has so exceeded its authority, on an application for a prohibition, the court above will not enquire whether it has decided right or not. 3 Bl. Com. 112 : Washburn v. Phillips, 3 Metc. 296.”
      See also, on this subject, Hogan v. Guigon, 29 Gratt. 705, and foot-note, where cases in point are collected; French v. Noel, 22 Gratt. 454, and foot-note.
      
      In Richardson v. Farrar, Judge, 88 Va. 766, 15 S. E. Rep. 117, the court, citing among others the principal case, said: “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 ‘tort, ’ nor in cases of fraud.”
    
   JOYNES, J.,

delivered the opinion of the court.

This case depends upon the question, whether a county or corporation court has jurisdiction and authority to decide, in the case of a contested election, that *there has been no valid election, and thereby to create a vacancy, to be filled in the manner provided by law. If a county or corporation court has such jurisdiction and authority in any case of a contested election, the petitioners have no right to a writ of prohibition. We cannot enquire whether the corporation court of Richmond had or had not such jurisdiction and authority in the particular case. That would be to convert a writ of prohibition, which proceeds upon an excess of jurisdiction, into a writ of error, which proceeds upon an error in the exercise of jurisdiction. It has accordingly been contended, on the part of the petitioners, that the authority conferred upon the county and corporation courts to determine contested elections, applies only to cases in which two or more persons have been voted for, for the office in question; and that, in every such case, the court is bound either to allow the person who has already received a certificate of election from the commissioners, to retain it, or to give it to another person who was voted for at the election; and that it cannot, in any case whatever, decide that there has been no election, so as thereby to create a vacancy.

The authority of county and corporation courts to determine cases of contested elections, is conferred by section 69 of “an act to provide for a general election,” approved May 11, 1870. (Sess. Acts p. 97.) This section is a transcript, in all essential particulars, except only the clause comprised in the last four lines, of the 9th and 10th sections of the general election law of 18S2, (Sess. Actspp. 6S-6), which were re-enacted in the 67th and 68th sections of the general election law of 1858. (Sess. Acts pp. 29, 30.)

The complaint must be filed within ten days after the election. It is to be heard at the next term of the court, which sits every month, unless good cause be shewn •for a continuance. The case is to be determined *by the court, without a jury. As soon as the complaint is filed, the parties may proceed to take depositions, and the case is to be heard upon the depositions and upon oral testimony, if any. And the decision of the court is declared to be final. It was obviously the purpose of the legislature, in this section, to provide as cheap and expeditious a remedy as the case would-admit of, and to close all such controversies in the shortest practicable time.

In the absence of such a provision as this section supplies, it would have been necessary to resort to the writ of quo warranto, to oust an officer alleged to have been unduly elected. That writ could only be obtained from the Circuit court, which sits but twice a year, except in a few towns having Hustings courts with Circuit court powers; and its judgment would not be final, but subject to' review upon a writ of error.

In many cases, especially of annual offices, it would have been in the power of a candidate, fortunate enough or dexterous enough, to secure the certificate of the commissioner, by the help of a little management, to wear out the term of office in litigation. And it would often be impossible, with the utmost diligence, to bring a litigation, fairly conducted, to an end, until the term had run out, or so much so that what was left of it would not be worth contending for, or worth having. This obvious policy of the statute must be borne in mind in putting a construction upon it.

The opening clause of the 69th section provides, that the “return of elections shall be subject to the enquiry, determination, and judgment” of the court. Prom this it is argued, that the authority of the court is limited to an examination of the returns. The complaint of the fifteen voters, however, may be of an “undue election or false return.” It is provided that the court, “in judging'of said election, shall proceed upon the merits thereof, and determine finally concerning the same.” '^Depositions may be taken “to sustain or invalidate said election.”

We are not called upon, in this case, to define the scope of investigation and en-quiry authorized by those provisions. But it seems to be very clear, that it is not restricted to a mere examination of the returns ; and, moreover, that it may be such as to “invalidate” the election: in other words, such as to show that there has been no legal and valid election. The election which is contested, may be invalidated for the reason that the entire election was illegal and void; if the enquiry may take that scope, does it not follow that the judgment of the court may respond to the en-quiry? Wiiy authorize the court to enquire into what it cannot determine?

But it is contended that the latter part of the section, and especially the last clause, limits the jurisdiction of the court to cases-of contest between competing candidates. This part of the section spealis of the party “whose election is contested,” and directs that the court shall proceed, at the next term, to “determine said contests.” The first of these expressions obviously refers to the proceeding authorized by the first clause; for no other contest is provided for. So too, “the said contests,” which the court is to determine, are those instituted by the complaint of the fifteen voters; for no other is spoken of or provided for in the previous parts of the section. “pach party” is to be allowed to take depositions; which is said to contemplate an array of one competitor against another. But the section contains no provision for making the defeated candidate a party. The complaint is that of the voters; not his complaint. The officer whose election is contested is to have notice of the complaint of the fifteen voters by service of a copy ; there is no provision for any intervention by the defeated .candidate, or for the filing or service of his claims or allegations. *And what reason can be assigned for restricting the right of the voters to complain of an undue election, to cases in which there were competing candidates, or more than one person voted for?

Then conies 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, cannot, *at his own pleasure, enter upon the contest, and it may be commenced and prosecuted without his knowledge or against his will. He is not a necessary party, in any stage of the proceedings. Indeed, the complaint 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, *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 law should be thus construed, it would be wholly inadequate 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 exclusive *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 jurisdiction effectual, and that there is no necessity to resort to any other proceeding to oust an incumbent, whose title has been adjudged bad.

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;  