There is nothing which lies more deeply at the root of American governmental institutions than the principle of majority rule. The present order of things cannot continue except on that basis. Destroy it and political chaos will follow. Where there are two candidates for a public office, the one receiving a majority of the votes, whether that majority be one or one thousand, is entitled to the office, if there be no fraud and if by his conduct he has not precluded himself from the right to enjoy the office.
In the instant contest we deem it mathematically demonstrated, as is clearly brought out by JUDGE HATCHER, that the tallies of the uncontested votes of the two candidates are, Morton 3744, Lambert 3733. On the former proceeding we found that of the 210 contested ballots brought to us on the legal questions thereby presented, 50 were for Morton and 62 for Lambert, adding these latter numbers to the figures above, we have Morton 3794, Lambert 3795. Thus it appears that if Morton is to be sheriff, he will be a minority sheriff. Why should this be? How can it be squared with the basic principle of democratic government as above stated? What would be the justification? The reply by Morton is that the matter has been adjudicated. Res adjudicata! He says that because in the former proceeding we considered his uncontested vote to be 3745, whereunto we directed that there be added the 50 contested votes to which we ascertained he was entitled, thereby making a total of 3795, — a tie with Lambert, *Page 121 — that the matter is forever closed on that basis. What is the doctrine of res adjudicata? It is a principle of public policy the purpose of which is to put to rest matters which have been heard and determined; to put an end to litigation. Parties cannot be heard again to raise the same matter as between themselves in the same or any other form or forum. But an adjudication is not a bar as res judicata as to a matter not in controversy. Hornor v. Gas Company, 71 W. Va. 345. True, there need not have been former issue but the matter must have been controversial and involved in the suit. Alderson v. CoalLand Company, 81 W. Va. 411; Laurenzi v. Distilling Company,90 W. Va. 794. Among other essentials to the operation of the doctrine, there must be identity of the subject matter, — the thing sued for. 15 R. C. L., 952. "A cause of action between persons who were parties to a former adjudication, set up in a subsequent action between them, is not res judicata by the former decision, unless it is identical with the one actually or constructively heard and determined in the former suit."Lutz v. Williams, 84 W. Va. 216. We find it declared in England a century and a half ago that a judgment is not "evidence of any matter which came collaterally in question * * *" nor of any matter incidentally cognizable * * *." The Duchess ofKingston's Case. 20 How. St. Tr. 537; 2 Smith's Leading Cases, part 2, 734. A judgment is not conclusive of every question which might have been made in the case, as is sometimes erroneously said, but only of matter that had of necessity to be determined before the judgment could have been given." Hart v. Bates, 17 S.C. 35, quoted with approval in Perdue v. Ward,88 W. Va. 371.
There does not exist between the instant proceeding and the former one an identity of the thing sued for. The primary object of the former proceeding was to obtain judicial determination of the rights of the parties under the 210 contested ballots. All else was secondary and incidental. The primary object of the present proceeding is to compel the canvassing board to declare the result of the election on the correct basis of 3744 uncontested and 50 contested votes for *Page 122 Morton, total 3794, as distinguished from the false basis of 3745 uncontested and 50 contested, total 3795, as erroneously set forth in the former case. It thus appears that there does not exist in this matter the identity of fact essential to render the first proceeding a bar to the second.
We find no fraud in the whole situation. The entire difficulty come about because on the hearing of the former proceeding in this Court, counsel erroneously stipulated that Morton's uncontested votes aggregated 3745 when the correct figure was 3744. Why should the candidate who was successful at the poles be deprived of his office because of this mutual mistake of fact. The ends of justice do not demand it, nor does the doctrine of res adjudicata justify it. That wholesome doctrine is meant to promote the public weal by terminating controversies. Never should it be employed as a cloak for injustice nor as an engine of destruction of the rights of a suitor.
If the present proceeding involved a matter which had been directly passed upon and adjudicated in the former case, — a matter involved in the issue, — then the reason of the doctrine of res adjudicata and its applicability here would be plain. But since this proceeding does not involve a matter directly determined and adjudicated in the former case it would be a strained and forced construction of that doctrine that would make it fit here so as to defeat the will of a majority of the voters of Nicholas county who cast their ballots for sheriff at the late election and to deprive the candidate of their choice for that office of the emoluments thereof.