On November 14, 1902, plaintiffs in error filed in the circuit court of the United States for the eastern district of Virginia in behalf of themselves and others similarly situated, their petition for a writ of prohibition. The petition set forth that the petitioners were citizens of the United States, citizens and residents of the state of Virginia, and of the third Congressional district of that state, and entitled to vote at the election held on November 4, 1902, for a member of the House of Representatives of the United States from that district; that they applied to the proper registration board for registration, and were refused. it was further alleged that in 1901 a constitutional convention was assembled in Virginia; that it framed a new constitution; that it did not submit such constitution to the people for approval, but, by a vote of forty- seven to thirty-eight, ordained it as the organic law of the state. Attached to the petition were copies of the constitution, of a schedule making provisions for putting in force the new constitution without inconvenience, and of an ordinance providing for the registration of voters, all of which were adopted by the same convention. The petitioners also charge that the purpose of the party in power was the disfranchisement of the colored voters of the state, and specifically set forth how this disfranchisement was to be accomplished. They averred that at the election held on November 4, 1902, only the registration lists provided for by the ordinance were recognized; that abstracts [194 U.S. 147, 148] of the votes cast in the several cities and counties were certified to the secretary of the commonwealth, at Richmond, Virginia, and that the defendants, as the board of state canvassers, would assemble on the 24th of November, 1902, and would, unless prohibited, canvass the election returns, declare the result, and give certificates to the parties found to be elected. The prayer of the petition was that a writ of prohibition issue to the defendants, 'prohibiting them, and each of them, from considering, canvassing, counting, determining upon, or certifying or otherwise acting upon, any returns or abstracts of returns in the office of the secretary of the commonwealth of Virginia, purporting to be returns of election held in the state of Virginia, Tuesday, November 4, 1902, for representatives in Congress from the state of Virginia, or in any wise dealing with or certifying the results of said returns as returns of a lawful election, held in Virginia on the date aforesaid. That by reason of the matters and things hereinabove set forth, said pretended election, and any and all precinct, county, district, or state returns made thereunder, may be held to be null, void, and of no affect, and the said board of state canvassers, and the members thereof, may be prohibited from in any wise proceeding to act upon the same as lawfully before them for their consideration. That pending the hearing, and until the final decision upon this petition for said writ of prohibition, an order may be granted by this honorable court suspending any and all proceedings, on the part of said board of state canvassers and the members thereof, upon any and all of the matters sought to be prohibited until the final decision of this cause. And for such other and further orders in the premises as shall and may make the prayer of your petitioners effectual.'
After answer by defendants, the writ of prohibition was denied by the circuit court, and the petition dismissed. The dismissal was based on a want of jurisdiction; whereupon the petitioners brought the case on error directly to this court. A motion has here been made to dismiss the writ of error on the [194 U.S. 147, 149] ground that everything sought to be prohibited has already been done, and that there is nothing upon which any order of the court can operate. In support of the motion an affidavit of the secretary of the commonwealth has been filed, to the effect that after the dismissal of the petition by the circuit court the board of canvassers convened at the office of the secretary in accordance with the law of the state, and, upon the returns then on file, canvassed the votes, determined the parties found by such canvass to have been elected, and that a certificate to that effect had been prepared and transmitted to each of the persons declared to have been elected a representative in Congress from the state of Virginia.
Mr. John S. Wise for plaintiffs in error. [194 U.S. 147, 150] Messrs. William A. Anderson and Frank W. Christian for defendants in error.
Mr. Justice Brewer delivered the opinion of the court:
Mills v. Green, 159 U.S. 651 , 40 L. ed. 293, 16 Sup. Ct. Rep. 132, is decisive, and compels a dismissal of the writ of error. That was a suit in equity, alleging the calling of a convention to revise the Constitution of South Carolina, and seeking to enjoin an alleged illegal, partial, and void registration by which the plaintiff, and others like him, would be deprived of the right to vote for delegates to the convention. An injunction was granted by the circuit court, but was dissolved by the circuit court of appeals, and the suit dismissed. Thereupon the election was held, the convention met and entered upon the discharge of its duties. An appeal to this court from the order of dismissal made by the circuit court of appeals was dismissed on the ground that the object of the suit could no longer be attained. Mr. Justice Gray, delivering the opinion, said (pp. 653, 657, 658, L. ed. pp. 294, 295, Sup. Ct. Rep. pp. 133, 134, 135):
The case before us is one in prohibition. It is so declared by the petitioners in their petition, and the thing sought to be prohibited was a canvass of the votes cast at the election on November 4, 1902. The facts alleged in respect to the Constitution, the purpose of the dominant party, the action of the convention, the refusal to submit the proposed Constitution to the vote of the people, and the registration ordinance, were all stated for the purpose of showing that the election on November 4, 1902, was illegal, and that there ought to be no [194 U.S. 147, 153] canvass of the returns cast at that election. The prayer of the petitioners specifically is to restrain such canvass. Even the general clause at the close of the prayer is 'for such other and further orders in the premises as shall and may make the prayer of your petitioners effectual.' But-as shown by the affidavit, and as, indeed, we might, perhaps, take judicial notice by the presence in the House of Representatives of the individuals elected at that election from the various congressional districts of Virginia-the thing sought to be prohibited has been done, and cannot be undone by any order of court. The canvass has been made, certificates of election have been issued, the House of Representatives (which is the sole judge of the qualifications of its members) has admitted the parties holding the certificates to seats in that body, and any adjudication which this court might make would be only an ineffectual decision of the question whether or not these petitioners were wronged by what has been fully accomplished. Under those circumstances there is nothing but a moot case remaining, and the motion to dismiss must be sustained.
Dismissed without costs to either party.