794 JOURNAL OF PBOCEEDINGS [Mar. 13,

power and jurisdiction to go behind the election returns—to
examine into the qualification of voters—purge the ballot-
box and recount the votes—subjects over which the Courts
have no jurisdiction."

If the House of Delegates, which shall judge of the elec-
tion and qualifications of the candidates at such election, has
the power, under the twelfth section of Article four of the
Constitution, "to inquire into the qualification of voters
purge the ballot-bos of fraud and recount the votes'—upon
the part of the contestant it was insisted that, should the
Committee find that Henry Brooke was elected on the fourth
of November, eighteen hundred and seventy-three, by a
majority 6f the legal and qualified voters of the county, it is
the duty of the House of Delegates not only to determine
that Widdicombe was not elected, and render "judgment"
against him, but to go further, and without ordering a new
election, to declare Brooke duly elected and entitled to the
office.

By the Constitutions of 1851 and 1864, it was contended
that, "in case of any contested election, the Governor shall
send the returns to the House of Delegates, which shall
judge of the election and qualification of the candidates at
such election.

Acting under this broad grant of power, the House of Del-
egates, in. the contested election cases of Gambrill vs. Hair-
wood, Spence vs. Franklin, and in other cases to which it is
unnecessary to refer in detail, where the chief ground of con-
test was on account of disqualification of the candidates re-
turned elected, after finding that the party elected was dis-
qualified, declared the contestant elected and entitled to the
office, although in fact he had received a minority of the votes
cast at the election, upon a strained presumption of law, that
the candidate being disqualified, the voters were presumed to
know it, and hence all votes cast for the disqualified candi-
date were thrown away, and only those votes were counted
which were cast in favor of the candidate who was qualified.
The effect of this construction of the law was practically to
legislate a candidate into office, when in fact he was the
choice of only a minority of the legal voters.

To remedy this evil, when the present Constitution was
adopted, the following clause was added to the section in ref-
erence to contested elections before the House of Delegates,
viz: "And if t.he judgment shall be against the one who has
been returned elected, or the one who has been commissioned
by the Governor, the House of Delegates shall order a new
election within thirty days." While the power to judge of
the election and qualification of the candidates would seem
to include the power to declare the contestant elected, if the