said MacGinnis 4,658 votes; that said Alderson demanded a recount, which recount was made, whereby the result was for said Alderson 3,341 and for said MacGinnis 4,638 votes; that said commissioners refused to accept such recount except as to certain precincts, and as to others adopted the original returns, rejecting the result of the recount there, and entirely rejected the votes cast at two precincts, whereby the result was for said Alderson 3,325 and for said MacGinnis 4,660 votes, which would elect said MacGinnis. The bill states that the said Alderson excepted to this action of the commissioners, and during the progress of the canvass excepted to various rulings and decisions of the commissioners, which are detailed in the bill. The bill also states that the commissioners refused to settle and sign bills of exceptions touching these rulings, and that said Alderson by a proceeding in mandamus in this court obtained a mandate from this court requiring them to do so; and that they were bound to make a record of all poll-books, ballots, packages, ballotboxes, and tally-sheets, tally-sheets on the recount and evidence, and their rulings and actions; and that he had tendered them a bill of exceptions representing the same, but they had not yet settled and signed it; and that, as soon as settled and signed, he would apply to the circuit court of Kanawha for a writ of certiorari to correct such erroneous proceedings of said commissioners; that in order that justice might be done, it was important to him that said commissioners should not send to the governor certificates of the result of said election in said county according to their said decision; that it was the intention of the commissioners, as soon as they should sign said bill of exceptions, and before he could have time to apply to said circuit court and obtain a certiorari and give bond, to certify said result to the governor according to their erroneous decision, and that they intended so doing for the very purpose of defeating said Alderson's right to review said proceedings; that he had asked said commissioners to consent not to certify said result until he could apply for the certiorari, but they declined to say what their intention was; that though they had announced their decision, they were keeping it off the record until the bill of exceptions should be signed, and he charged that they had already made out a certificate ready to file with the governor as soon as the exception should be signed, and their decision entered of record, and that they had prepared it, that there might be as little

delay as possible in filing it with the governor, and that thereby the said Alderson would be defeated in his attempt to review said proceedings. He prayed an injunction to restrain the commissioners from certifying to the governor the result of said election. On December 15, 1888, such injunc tion was awarded. Said Alderson, on January 4, 1889, filed in court his affidavit, stating that process upon the injunction bill was served on two of the commissioners December 15th, but does not give date of service on the other; that on December 15, 1888, he presented his petition for a certiorari to review such proceedings, and it appears it was allowed De cember 17, 1888, with an order restraining them from certifying said result, and that he believes the said commissioners had full notice thereof; and that notwithstanding such notice and service of process on said injunction, said commissioners did certify such result to the governor; and on said Alderson's motion, a rule was awarded against them to show cause why they should not be punished for their contempt in so violating the injunction. Afterwards the defendants moved the court to quash the said rule for contempt as improvidently awarded and for want of jurisdiction, and the rule was quashed, and defendants discharged therefrom. Afterwards the defendants moved the court to dissolve the injunction, and the same was dissolved for want of jurisdiction, and the bill dismissed.

Said Alderson appealed to this court. He assigns that the court erred in dissolving the injunction and dismissing the bill, and in discharging the rule for contempt.

The defendants contend that there was no jurisdiction in the circuit court to entertain the injunction, and that it properly dissolved it and dismissed the bill. No principle of the law of injunction is better settled than that injunction does not lie to determine questions of appointment to public office and the title thereto, as they are of purely legal nature, and cognizable only in courts of law: 2 High on Injunctions, sec. 1312; High on Extraordinary Legal Remedies, sec. 619; Kilpatrick v. Smith, 77 Va. 347; Judge Green's opinion and authorities cited in Dryden v. Swinburn, 15 W. Va. 234. This is not, however, a proceeding to try title to an office, but to restrain county commissioners from sending to the governor the result of their count of the votes for a representative in the United States Congress. Does an injunction lie in such

case?

Our statute provides that the commissioners shall ascertain the result of the election in their county and certify it to the governor, who is to ascertain who is elected, and make proclamation thereof. In Dickey v. Reed, 78 Ill. 261, it was held that a court of chancery has no power to restrain by injunction a board of canvassers from canvassing the returns of an election, where the law under which the election was held neither in terms nor by implication confers such power, and where there are no facts before the court which require it to take judicial cognizance, and hear and adjudicate and decree; and that, valuable as is the remedy in its proper sphere, it must not be extended to doubtful cases, or to accomplish ends where there are other adequate remedies. The opinion in that case is elaborate and well sustained. I quote some of its passages:

"If the court may exercise this jurisdiction in cases of doubt, or even where there is no doubt, of the result, a few . . . . persons might, and probably would, be induced, from the heat and strife always engendered in such elections, to resort to a bill and injunction, and thus for years thwart the will of the people. . . . . Public policy does not require such a jurisdiction, even if it could sanction it. If the power were admitted, where would its jurisdiction end? . . . . Sanction the power in this case as inherent in the court of chancery, could any ingenuity suggest reasons which should forbid the application of the same rule to every case we have above supposed, or any election case where fraud is alleged? In this case, alleged fraud is the ground on which the power is urged. So would it be in those cases, and the fraud would be precisely the same in each."

In Peck v. Weddell, 17 Ohio St. 271, it was held that fraud in election could not justify injunction. In Thompson v. Ewing, 1 Brewst. 67, it is held that equity cannot restrain a prothonotary from certifying election returns to the board of return judges, though the returns are admitted to be forgeries. 6 Am. & Eng. Ency. of Law, tit. Elections, p. 390, states the law thus: "A court of equity will not interfere by an injunction to prevent the election officers or canvassing officers from doing their duty as required by the law, nor prevent them from canvassing votes in a certain way."

I think the case of Fleming v. Guthrie, 32 W. Va, 1, ante, p. 792, contains principles of law kindred to, if not binding as authority in, this case. Judge Fleming, who was a candi

date for governor at the same election, obtained an injunction restraining the secretary of state from laying before the legislature the certificate of the commissioners of the county court of Kanawha County of the result of the election as to governor, and afterwards General Goff, who was also a candidate for governor, obtained from the circuit court of Kanawha a mandamus to compel the secretary of state to do what he had been so enjoined from doing. The circuit court announced that it would disregard and ignore such injunction. The bill of injunction alleged that Fleming had before that obtained from said circuit court a certiorari to correct the action of the commissioners in canvassing the vote for governor, and that said certiorari was yet pending; but that said commissioners had transmitted said certificate of returns to secretary of state before said certiorari issued. Fleming asked a writ of prohibition from this court to prohibit the circuit court from ignoring said injunction and proceeding with said mandamus, which was refused by this court.

Here was an injunction to restrain the sending to the legis lature, that it might declare the result as to governor, the returns of Kanawha County, until the pending writ of certiorari should accomplish correction of alleged errors and procurecorrect returns. That injunction might be said to be merely auxiliary and necessary to keep back the returns, so that they could not be made the basis of a declaration of electionuntil correct returns should be had, just as much as in thiscase; but the court did not think the injunction could be sustained, for want of jurisdiction. In delivering the opinion of the court, Snyder, president of the court, said:

"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 powers, 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 the 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 without authority, was void, and that there was no contempt in disobeying it. The court, in its opinion, says: 'In such case, what must control the officer, 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 posi

tive 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 election where the law provides for a contest."

This court then held: "A court of equity has no jurisdiction to enjoin the secretary of state from delivering to the speaker of the house of delegates the sealed returns of an election for governor properly transmitted to him; and such injunction, if granted, will be treated as a nullity." And citing in its opinion with approbation the case of Smith v. Myers, 109 Ind. 1, 58 Am. Rep. 375, quoted from it as follows: "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 government are separate and distinct, and that the officers of one 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."

Why do not these principles substantially apply to the case in hand? The injunction here involved was an act of the judicial department, tending in its consequences to prevent the governor, the chief of the executive department, from performing an important function assigned to him by law, that of declaring an election of a member of Congress. Through these commissioners the popular will in elections for all offices, national and state, from president and governor down, as expressed in the several counties, is ascertained and certified to the power which declares the election result. For representative in Congress, the vote is certified by them to the highest state officer, the governor, in order that he may ascertain and declare the result. This duty is of the most vital importance, and should be performed without delay.

Is it possible that injunction lies to tie up, even temporarily, the performance of these functions so necessary to reach the popular verdict, when any candidate may think himself aggrieved, and make it dependent on private litigation? Do not the evils of the exercise of such a jurisdiction at once suggest themselves without specification? Once the